Short Circuit: A Roundup of Recent Federal Court Decisions
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
You want to hear something neat? Next month, IJ is going to argue before the Michigan Supreme Court—but not at the Michigan Supreme Court. Instead, oral argument will be held at a high school in Flint because sometimes—in cases of deep importance and keen public interest—the Michigan supremes take their show on the road. And indeed the question of whether officials who repeatedly flew a drone over private property in search of code violations should have first obtained a warrant is of great moment. Click here to learn more.
And speaking of neat, Georgia Public Radio has a story about IJ’s latest eminent domain case, one which asks the question: is a taking by a private railroad, primarily to benefit a different private company, a public use?
- Federal law requires anyone who publishes books with “copyrightable” material to provide free copies of those books to the gov’t. Is this a taking? D.C. Circuit: When the gov’t takes your stuff, it’s a taking. (This is an IJ case.)
- FDA refuses to allow company to market its vaping products, both flavored and unflavored. D.C. Circuit: And it was fine to prohibit the flavored products, given their appeal to the youths, but the unflavored products are a different story. The FDA failed to consider the potential benefits of the products or weigh those against public-health risks.
- If you ever find yourself, as a lawyer in a negotiation, shouting, “I don’t give a f–k about those kids,” maybe take a step back and rethink your choices. In related news, the Second Circuit has affirmed attorney Michael Avenatti’s convictions for trying to shake down Nike over alleged secret payments to youth basketball players.
- When it comes to offensive words, your summarist’s six-year-old is a master of the “use/mention distinction,” and has figured out that asking questions about words and quoting their use by others will not provoke the same reaction from his parents as will actually employing the verboten language. And according to the Third Circuit, the Pennsylvania Rules of Professional Conduct are similarly discriminating. Thus, a Pennsylvania attorney who regularly gives continuing legal education presentations about First Amendment protection for offensive speech could not reasonably fear his mention of offensive words will trigger discipline.
- Philadelphia police spot driver whose house they have a warrant to search and decide to stop him. While wearing plain clothes (“to maintain an advantage”) and driving unmarked cars, they box in the driver on a one-way road. When the unarmed driver attempts to free his car, one of the officers shoots him to death. Third Circuit: To trial this must go. Denial of qualified immunity affirmed. (Video.)
- New Jersey police arrest a robbery suspect in his hotel room, find car keys, and get permission from the rental car company to search what he says is his rental car. Turns out his girlfriend rented it. Ah hah! They find contraband. Suppress the evidence? District court: No. Third Circuit (over a dissent): Reversed. He had a reasonable expectation of privacy as girlfriend gave him permission to use the car.
- After finding his usual “chill out” room is unavailable, agitated 17-year-old special-needs student tries to leave Katy, Tex. school and wrestles with staff trying to prevent him. A school resource officer tells staff to let him go and then tases him after he takes a few steps outside, continuing even after he is lying on the ground and not struggling. The teen urinates, defecates, and vomits. Excessive force? Fifth Circuit (2021): The thing is it’s not clearly established that school officials can ever be held liable for using excessive force, and we decline to clear that up for the future. Fifth Circuit (2023): And his other statutory and constitutional claims fail.
- Fifth Circuit (unpublished): The district court should not have gra
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