[Eugene Volokh] Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

Is judicial engagement little more than a camouflaged appeal for more libertarian judicial outcomes? Not a bit of it, argues Evan Bernick of the Center for Judicial Engagement, responding to a critique of his lead essay over at Cato Unbound. Click here to read more.

This week on the podcast: One of IJ’s newest litigators, Josh House, talks bogus arson charges and illegal marijuana prosecutions.

• Regulator to regulated: “We don’t care what the law says, if you want to beat us, you will have to fight us.” The D.C. Circuit (over a dissent) characterizes the NLRB’s policy towards employers (accused of a particular wrongdoing) thusly, and awards attorneys’ fees to one employer forced to waste resources defending against the NLRB’s bad-faith litigation tactics.
• There is no evidence that the practice of taking a photo of one’s ballot and posting it online is at all linked to vote buying or voter intimidation, says the First Circuit, so a New Hampshire law prohibiting ballot selfies in order to prevent such ills does not satisfy intermediate scrutiny. (One plaintiff, upon learning the authorities were investigating ballot-selfie takers, posted his selfie with a message: “Come at me, bro.”)
• First Circuit: The erratic, threatening behavior of Bangor, Me. man thought to be high on bath salts justified efforts to take him into protective custody. But sitting, kneeling on him for several minutes after he stopped thrashing could be excessive force. His estate can sue the police over his death.
• In 1981, Boston redevelopment officials accepted federal funds to clean up dilapidated pier. Today, officials would like to lease space on the pier to a restaurant/bar. Feds: Sorry, the grant stipulated that the site must remain open for recreational use. First Circuit: And so it must remain, unless the city creates recreational space elsewhere to the feds’ satisfaction.
• NYC undercover officer allegedly fabricates evidence against drug suspect, who spends eight months in jail before being acquitted. Officer: I had probable cause to arrest, so he can’t sue me for fabricating evidence afterward. Second Circuit: No, he can. The jury’s $20,001 award to the suspect stands.
• American Express charges merchants who accept its cards a higher fee than do competing credit-card companies (and uses the extra revenue to fund perks for cardholders). Amex also bars merchants from offering enticements to customers to use competitors’ cards. DOJ: That’s an antitrust violation. Second Circuit: If merchants don’t want to pay the fees, they can just stop accepting Amex.
• Dallas arts patron sells painting (“the Red Rothko”) to financier for $19 million with expectation that the sale will be kept confidential. Three years later, however, the financier auctions the painting for $31 million — and the public learns of the initial sale. Fifth Circuit: The patron’s suit for breach of confidentiality is untenable.
• Perhaps mistaking sound of car backfiring for gunshot, Cleveland police chase vehicle. Ultimately, 13 officers fire 139 shots at the vehicle’s (likely unarmed) occupants, killing them both. Nine white officers sue the city, arguing they were put on desk duty after the shooting for much longer than black officers who killed citizens in other incidents. Sixth Circuit: The district court did not err in dismissing the suit.
• Guilty verdict in Mishawaka, Ind. triple-murder case set aside. At second trial, new prosecutor, who represented suspect granted immunity in exchange for testimony in first trial, gets conviction. Seventh Circuit (en banc): Which didn’t bother the district court, and it didn’t come up on appeal. But the jury should have heard that neighbors claimed to have seen a victim alive after investigators concluded he’d been murdered — at a time when the alleged murderer was in another state. Habeas petition granted.
• The IRS knew full well that Arnold Park, Iowa restaurant owner