Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
More and more governments are demanding that “professionals,” rather than mere volunteers, help people, whether feeding those in need or trimming a neighbor’s trees. But that crowds out civil society and frays the bonds between us. Is it therefore time to recognize a “right to volunteer”? Director of the Center for Judicial Engagement Anthony Sanders volunteers his thoughts in this new piece at Discourse Magazine.
PIM Brands is a candy company that manufactures a wedge-shaped, watermelon-flavored sour candy with a green, white, and red color scheme designed to evoke the image of a slice of watermelon. When Haribo of America—better known for its gummy bears—started manufacturing a similarly shaped and colored watermelon gummy, PIM sued, alleging trademark and trade-dress infringement. Third Circuit: But trademark law doesn’t protect useful designs, and both candies’ shapes and colors usefully signal their watermelon flavor. Pro-tip to the defense bar, courtesy of the Third Circuit: If a witness to a gun fight suggests that your client shot in self-defense, and then the judge pressures the witness to testify that your client shot first, you really, really need to object. Bridgeport, W.V. man exits his house and sees a guy suspiciously walking around, looking over his shoulder, and holding something so heavy in the front pocket of his hoodie that it “was falling down below his crotch.” Man calls a law enforcement buddy. Later cops find the guy, still walking in the area, and search him on suspicion of theft. Instead they find a gun and drugs. Fourth Circuit: There wasn’t enough evidence for a search as “unlike rational basis review, reality matters for reasonable suspicion.” Dissent: Actually, “reasonable suspicion is a little less qualified immunity and a little more rational basis than the majority lets on.” [Ed.: You’re comparing the majority to defeating QI? Really?] Fifth Circuit: A quarter of all Louisiana inmates are held past their release dates—”for a collective total of 3,000-plus years.” And it’s “[c]lear as day” that the gov’t can’t keep someone in prison without legal authority, so no qualified immunity for the prison supervisors who were deliberately indifferent to this plaintiff’s wrongful 60-day overdetention. (IJ is currently litigating this issue against the state’s director of prisons on behalf of a client who was overdetained for 525 days.) Allegation: DUI suspect spits in an Alamo, Tex. officer’s face. But the suspect has connections! The mayor intervenes, seeks to have the charges dropped. Which a sergeant declines to do, provoking the ire of the police chief, who conjures up false charges and directs subordinates to file false affidavits to get the sergeant arrested. False arrest? District court: Qualified immunity. It’s not clearly established that officials shouldn’t do that. Fifth Circuit: Reversed. Three physicians who prescribed the ivermectin for off-label treatment of COVID-19 sue the FDA, alleging that the agency’s public statements concerning the antiparasitic drug—including the exhortation “You are not a horse”—were beyond the agency’s authority. Fifth Circuit: And they have a case. “Even tweet-sized doses of personalized medical advice are beyond FDA’s statutory authority.” (But the district court may decide on remand that the plaintiffs lack standing.) A Kentucky law (which IJ has challenged elsewhere) bans new medical services from opening unless they can prove they are “needed.” And existing providers have a suspicious habit of arguing that new services that would compete with them are totally, definitely not needed. Ohio medical-transportation company: this scheme illegally burdens interstate commerce. Sixth Circuit: For trips inside Kentucky, no. For trips from Kentucky to Ohio, yes. Property owner fails to pay just over $1k in property taxes. Gratiot County, Mich. officials take it, sell it at auction for a cool $42K, and keep all the dough. Sound familiar? Yeah, this spring SCOTUS said that’s a no-no. So owner wins in district court on his takings claim but not on his argument that he should get the fair market value—arguably almost $100K—not just the auction proceeds. Sixth Circuit: One way to calculate fair market value is to hold an auction. Woman is a spectator in back row of Tiffin, Ohio courtroom to watch a proceeding involving her boyfriend. Out of the blue, the judge orders her to take a drug test; when she refuses, the judge throws her in jail. The judge is later disbarred and removed because of this misconduct. Surely the woman can recover for such an obvious violation of her civil rights? Judges on the Sixth Circuit (unpublished): Of course not, we judges are above the law absolutely immune from civil suits for our their judicial misdeeds. Missouri man is stopped by police officer for walking on the wrong side of the road, gets into an argument with officer, and is arrested. Officer then scrambles to find a reason to justify the arrest, telling colleagues man “ran his mouth off,” fabricating new allegations, and asking, “What can I charge him with?” Man sues, alleging arrest was retaliation for First Amendment-protected speech. Eighth Circuit (unpublished): You were walking on the wrong side of the road, so the officer had probable cause to arrest you and you can’t sue, no matter the real reason for the arrest. Dissent: The Supreme Court says you don’t need to prove a lack of probable cause if the law is never actually enforced, even using jaywalking as the canonical example. That is exactly this case. Missouri man crashes his car into a tree while fleeing police and dies at the scene. His estate sues, alleging that police performed a “PIT” maneuver that caused the crash and then failed to call for medical assistance. The police deny having bumped the fleeing car and argue that a bystander called 911 within 30 seconds of the crash, making their failure to render aid a moot point. Holding that there are disputed material facts, the district court denies qualified immunity. Eighth Circuit: Sounds right to us. Dissent: Police have a duty to aid injured people they take into custody, but “[i]t is not obvious that leaving someone in a crashed car is similar to incarceration or institutionalization.” Environmental groups sue the United States Forest Service, alleging that the agency violated the Resource Conservation and Recovery Act by failing to regulate the use of lead ammunition by hunters in the Kaibab National Forest in Arizona. Ninth Circuit: But the RCRA creates liability only for those who “contribute[]” to the disposal of hazardous materials that endanger the environment. The Forest Service didn’t put the lead there, and it had no duty to prohibit hunters from using lead ammunition. Two California gun owners claim it’s essentially impossible to get an open-carry permit. They sue and ask for a preliminary injunction, which has four famous factors, the first of which is likelihood of success on the merits and another of which is the public interest. District court: I don’t have to look at the merits because guns are bad and not in the public interest. Ninth Circuit: Um, what? In a constitutional case you always have to look at the merits because it affects the rest—such as it not being in the public interest to violate constitutional rights. Remanded to do it over. Seeking to distance itself from its association with “pukey frat guys” and emphasize its German heritage, the distributor of the herbal liqueur Jägermeister launches an ad campaign incorporating German words with easily understood English equivalents, such as “kühl,” “darke,” “perfekt,” “meister,” and “dekadent.” Uh oh! “KÜHL” is a registered trademark of Alfwear, an outdoor clothing company that promptly sues for trademark infringement. Tenth Circuit: Discriminating sportsmen/binge-drinkers are unlikely to be confused. Case dismissed. The first Mrs. Henthorn was crushed by a Jeep in a remote area with her husband as the only witness. The second Mrs. Henthorn fell off a cliff on a hike with her husband as the only witness. (This was a year after a heavy wooden beam almost crushed her at their cabin—with her husband as the only witness.) Is Mr. Henthorn the unluckiest man out there? No, he’s a murderer, according to a Colorado jury. Tenth Circuit (2017): Introducing the prior similar incidents was just fine. Tenth Circuit (2023): And no habeas. Allegation: Man can’t get up after being punched and hitting his head on parked car outside Ponca City, Okla. bar. Though he’s lost feeling in his extremities, EMTs decide he’s just drunk and, per their usual practice, load him into an ambulance without stabilizing his neck, which is broken. His head flops forward. He dies. Tenth Circuit: Qualified immunity and no suing the city, either.
Friends, massive news: IJ’s Center for Judicial Engagement is hiring. The very Center that produces Short Circuit. Oh yes. We’re looking for a Senior Fellow to join us in promoting the ideas of judicial engagement within the legal community and the wider public. Learn more here. Moreover! IJ is also looking for attorneys for our Austin, Tex. office. Further! We are looking for both attorneys and Litigation Fellows for our headquarters in Arlington, Va. Attorneys at IJ bring creative, intellectually challenging cases in courts around the country. Our attorneys are active outside the courtroom as well, doing media writing and appearances, public speaking, grassroots activism, and direct advocacy to policymakers and legislators. Visit the Careers section of our website to learn more about these and other positions.
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