Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Bianca King, a mother of two children, lives in Lakeway, Texas. She was able until recently to care for her 4- and 2-year-old children while also running her small daycare from her house. But on February 9, city officials—citing concerns of a group of nearby golfers (including former mayor Joe Bain) that they could hear and see children playing in her backyard—shut her down. This week, she joined forces with the Institute for Justice to file a lawsuit in state court challenging Lakeway’s near total ban on running a home business. Find out more.
- A man falls in the Judiciary Square Metro station, D.C. and is ultimately killed by his injuries. His body was found four days later after a Metro rider. The family of the victim sues Metro workers, alleging that they would have found him sooner if they had done their jobs. Metro: However, he wasn’t drunk and he was contributorily culpable, so we are not liable. Correct. District court D.C. Circuit: No. Under D.C. law (which controls here), the Metro’s status as a common carrier means it can’t avail itself of the contributory-negligence doctrine. The case must be tried.
- This First Circuit opinion on the First Step Act is unusually quiet. Judge Selya only uses a handful of small vocabulary words: immurement, for instance, paint the lily (no, it’s not “gild” the one), and monolithic. (By the by, “monolithic” (as you probably know) derives from the Greek for “single stone”—hence the Village of Monolithos on the Island of Rhodes, named for the rock on which perches the Knights of St. John’s castle.)
- If you are an “unlawful use” of drugs, your sentence for firearm offense can be increased. The First Circuit says that “evidence showing long-term regular drug use, interrupted by periods or abstention”, is not sufficient. A resentencing is possible for weed/gun enthusiasts without unlawful-user enhancement.
- The asylum application of a 26-year old Honduran woman for asylum is based on credible allegations that she suffered physical and sexual abuse from a gang member in her home country. She also stalked and raped the sister of her father and eventually killed him. However, the Fourth Circuit (overa dissent) says that she failed to produce copies of her fingerprints prior to her hearing before an Immigration Judge. She is therefore sent back home to Honduras.
- Fifth Circuit rejects qualified immunity. It explains this reasoning using a page of charts. Judge Oldham dissident claims that charts are not required by case law.
- An auto-antonym refers to a term with two opposing meanings such as “cleave”, or “sanction”. G.O.A.T. also refers to goat. In athletics, they are different things. Remember to distinguish prudential standing from Article III standing. Federal court will not grant you Article III standing if you do not have it. If you don’t have Article III standing, your federal court case is over.
- The Fifth Circuit ruled that United Airlines employees, who received exemptions for religious reasons from their company’s vaccine requirement, would be in irreparable danger if they do not get the policy preliminarily. The Fifth Circuit’s Judge Jerry Smith (dissenting) is. Not. Not having it.
- Kentucky’s certificate in need system for home-health agencies prevents new ones from being opened unless the agency proves that they are required. They must also file administrative lawsuits against any potential rivals. However, is it really necessary to protect billion-dollar companies from those who may offer better services. Does allowing startup to deliver Nepali-language health care to Louisville’s large refugee population make it better? Worse? The Sixth Circuit holds that it is rational to assume so. It’s indeed “galling” for the plaintiffs. It is true that there are “considerable evidences” of harmful effects. Yes, there might have been an overcorrection to the rational-basis test. However, you would need to bring this up before the Supreme Court. [This is an IJ case.]
- Sartre stated that Hell was “other people”, but in French, the word is best translated to “the Department of Labor’s Benefits Review Board.” So begins the Sisyphean tale of a Kentucky widow trying to obtain black lung benefits for her husband, a coal-miner. After seventeen years, four trips by an administrative judge to this board, the widow still receives zero. After that, she appeals to Sixth Circuit. It was ruled that she provided “poor customer services” but did not commit any legal errors. It was because, well, she only raised one matter ten years back.
- A court won’t usually consider an argument that an ordinary litigant has lost. If the government is the defendant, they will bring the argument. This is the Sixth Circuit’s case. The court ruled that a criminal defendant was not entitled to challenge the Fourth Amendment search of a car in the which he was a passenger. It was fine for the trial court, however, to make that argument.
- Plaintiff files the claims within one hour after expiration of the statute. BUT! But! BUT! BUT! BUT! BUT! Case un-dismissed.
- There are many opinions on the complex intellectual question of “violent felonies” as it relates to federal law. These disagreements could easily be referred to as a seminar in philosophy. It has led to this Eighth Circuit opinion that found “attempted 2nd degree murder” super-duper clearly counts as “violent”.
- The plaintiff presented her employer at least eight times with a medical note asking for a change in accommodation due to an asserted disability. Her employer provided accommodation for her every time. Her employer refused to accommodate her the ninth time she requested it. How did the Eighth Circuit handle her Americans with Disabilities Act complaint against her employer? This may surprise you. (Unless you’ve read all three sentences. You will guess what you see.
- The plaintiff is able to lose his personal property due to the fire in his home, but also his case, as the Eighth Circuit found that his pants caught fire when he created a list of his personal property.
- Can the government just take $15,000 of back taxes from a property owner and sell it at $40,000 auction? This panel of the Eighth Circuit finds that it is possible.
- Joshua Abraham Norton, a San Francisco resident, became Norton I, the Emperor of the United States, and Protector for Mexico after he fell prey to financial ruin from his speculative activities on the rice markets. In 1880, more than 10,000 people lined streets to honor the loved eccentric at his funeral. Mark Rogers was less memorable. He is the self-declared Emperor of North America and was imprisoned while he was still clinging to the baggage rack in a station wagon. Ninth Circuit. However, Rogers deserved to have a lawyer during his capital murder trial.
- We are reminded by the Ninth Circuit that Batson—much like his father—is rarely any help to criminals.
- Champion Petfoods makes dog food it claims is “Biologically Appropriate”, “Trusted Everywhere” and contains “Ingredients we Love”. [From]People We Trust Tenth Circuit: No one of these can be used as the basis to a consumer class-action.
- “The majority of issues not addressed in the briefs on appeal by a party are abandoned. It’s impossible to guess the next step in the Eleventh Circuit’s en banc decision (over a dissident), where the government tries to obtain evidence in support of a criminal defendant.
- Maybe investors ought to have known that multi-level marketing combined with a brand new cryptocurrency would be a Ponzi scheme. However, according to the Eleventh Circuit the Ponzi schemers cannot avoid liability by arguing their online advertisements were targeted at the entire world and not specific purchasers.
- IJ asks the Third Circuit for permission to hear the case of a Temple University professor in physics against the federal government. The life of plaintiff was disrupted for many years after she was falsely accused by an FBI agent that she had been a Chinese spy. According to the brief, the Federal Tort Claims Act discretionary exception was not applied to dismiss the case. Because gov’t officials aren’t allowed to violate the Constitution, the district court was wrong in expanding qualified immunity’s test of “clearly established”.
All Southern law students are invited! Come join us for an engaging and practical day filled with learning, and to network with industry professionals and peers. Our Friday Center Legal Intensive on Saturday, March 26, will offer law students the opportunity to study constitutional law from a public-interest perspective. IJ’s experts will facilitate interactive sessions during the day. They are designed to assist students in learning and practicing public interest strategies such as framing and identifying targets for constitutional litigation, crafting cases and advocacy before the court of public opinions. Register by March 4 using this link: ij.org/students/ – space is limited so secure your spot soon!