Tear gas in your home! Pepper balls in your face! But no free rein for LinkedIn.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Fresh updates! This month, IJ client Libby Souder asked the South Carolina Supreme Court to permit her to resume offering private swimming lessons from her backyard pool, an activity she had long run with city approval and without incident. But after a meddlesome neighbor (whose life isn’t affected by the lessons) complained, officials reinterpreted a vague provision of the zoning code to shut down Libby’s business. Click here to learn more.
New on the Short Circuit podcast: Baltimore police can deploy a “Hailstorm” device to energize your cell phone and locate you. Do they need a warrant for that?
- A confrontation between the President and the Voice of America’s director: “You’re fired!” The VOA chief retorts, “Only the International Broadcasting Advisory Board has that power.” DOJ: “But the president is the unitary executive!” The D.C. Circuit: The president now has authority to dismiss board members at will, and that satisfies Article II—even if it might delay confirmations of preferred appointees who would later fire their subordinates.
- In which the Second Circuit revives a challenge to New York City rules that restrict, among other things, carrying more than one handgun at once and registering more than two handguns.
- In which the Second Circuit discards prior precedent and holds that when a prosecution ends with an “adjournment in contemplation of dismissal,” malicious-prosecution claims may still be pursued. (This plaintiff’s claim fails on other grounds, however.)
- In probing a leak of classified information to a news outlet, federal authorities seek orders compelling LinkedIn to disclose records of all journalists’ communications over an 18-month period (including those with confidential sources) and to keep it confidential. LinkedIn challenges the orders. Fourth Circuit: the government “is entitled to a disclosure order,” “but it is not entitled to carte blanche.” Remand to narrow disclosures to communications truly relevant to the leak and to provide a measure of secrecy wiggle-room.
- In Lowell, Michigan, a mom who regularly criticizes public school policies and personnel on social media faces no action until she posts a quote from Christ about causing one of the little ones who believe in him to sin, allegedly prompting a warning to stop naming school employees in posts, or face legal consequences. The Sixth Circuit (2-1) suggests this could have violated her First Amendment rights; the claim survives for further consideration.
- The Prison Litigation Reform Act (PLRA) restricts prisoners from filing lawsuits in forma pauperis if they have three or more “strikes”—i.e., actions dismissed as frivolous, malicious, or failing to state a claim. The Sixth Circuit reasons that sovereign-immunity or failure-to-prosecute dismissals aren’t counted, so this lawsuit may proceed. A concurrence suggests Congress should count those dismissals too, and, until they do, offers guidance on how district courts can handle prisoners attempting to render their lawsuits strike-proof.
- Do residents of an apartment complex near an ICE facility in Portland, Oregon have a substantive due process right to be free from tear gas seeping into their homes? The Ninth Circuit says such a right does not appear in our history or traditions. A dissent argues the plaintiffs need only show conduct shocking the conscience, and given evidence that ICE deployed tear gas to generate social-media content, this should qualify.
- Furthermore, do peaceful protesters and journalists in Portland have a First Amendment right not to be pepper-balled in the face by ICE agents in ambiguously marked uniforms? The Ninth Circuit answers no. A dissent contends that such force should be limited to situations where lethal force would be permissible.
- Federal law exempts plaintiffs from mandatory arbitration if they allege sexual-harassment claims, which means (per two-thirds of this Ninth Circuit panel) that SpaceX employees who complained about Elon Musk’s lewd tweets stay in federal court.
- The Ninth Circuit clarifies that it isn’t necessarily saying a city violates the Americans with Disabilities Act by refusing to exempt a woman from its prohibition on sleeping in cars after she explains that her OCD sometimes requires it. However, the court does hold that her complaint states a viable ADA claim.
- California enacts two laws requiring companies to disclose information about their greenhouse-gas emissions and exposure to climate-related risks. Business groups challenge them as First Amendment violations. The Ninth Circuit, applying intermediate scrutiny, upholds two disclosure requirements but enjoins the one mandating reporting “indirect emissions” from suppliers and customers. It also enjoins the climate-risk disclosure, which compels subjective, ideological speech. A dissent argues that all of the requirements should receive strict scrutiny, which the majority finds lacking.
- A man in Arizona is convicted for his role in the 2015 “Draw Muhammad” event shooting in Garland, Texas, and sentenced to 30 years. The Ninth Circuit (2-1) says he may have been inspired by ISIS but was not under the group’s direction or control; the conviction on that count cannot stand. An unpublished, 3-0 decision notes he will remain imprisoned for a long time.
- A shoplifting suspect—later found to be innocent—suffers a medical episode, thrashes about unconsciously in a hospital bed, and exposes herself from the waist down. Did Tempe, Arizona officers really need to record three hours of that on body cams? An unpublished Ninth Circuit decision cites qualified immunity.
- Since his release seven years ago, a man in his sixties who served decades for crack distribution has been a model citizen. He now seeks an early end to his supervised release, arguing that its conditions hinder his growing and high-profile art career. The Ninth Circuit urges the district court to reevaluate.
- Did officials in Kansas terminate nine tenured Emporia State University professors through a sham process due to their left-leaning politics, or was the school truly in dire financial straits? The Tenth Circuit permits the case to proceed, with no qualified-immunity ruling at this time.
Phooey! More than four years after Meridian officials forced IJ client Chasidy Decker from her home, the Idaho Supreme Court ruled this week that her challenge to the city’s irrational ban on tiny mobile homes is not ripe. The court reasoned that she and her landlord failed to apply for a permit that officials repeatedly testified they would not and could not grant. The silver lining? The city still cannot show the ban serves a legitimate purpose, and someday it will have to address the issue. (Or, you know, repeal the thing.) Click here to learn more.
