#they must not have an medics on site considering she died after self administering an epipen and then it's what?

[levynite]

Excerpt:

In late May, Disney's lawyers filed a motion asking the circuit court to order Piccolo to arbitrate the case — with them and a neutral third party in private, as opposed to publicly in court — and to pause the legal proceedings in the meantime. Arbitration is generally considered a more efficient and cost-effective method of resolving disputes than litigation, and Disney said explicitly in court documents that the "main benefit of arbitration is avoiding heavy litigation costs." The reason it says Piccolo must be compelled to arbitrate? A clause in the terms and conditions he signed off on when he created a Disney+ account for a monthlong trial in 2019. Those terms of use — which users must acknowledge to create an account — state that "any dispute between You and Us, Except for Small Claims, is subject to a class action waiver and must be resolved by individual binding arbitration." Disney says Piccolo agreed to similar language again when purchasing park tickets online in September 2023. Whether he actually read the fine print at any point, it adds, is "immaterial." "Piccolo ignores that he previously created a Disney account and agreed to arbitrate 'all disputes' against 'The Walt Disney Company or its affiliates' arising 'in contract, tort, warranty, statute, regulation, or other legal or equitable basis,'" the motion reads, arguing the language is broad enough to cover Piccolo's claims.

You kidding me??? What piddling, facetious, grasping bullshit!

In early August, Piccolo's lawyers filed a response slamming Disney's rationale as "preposterous," bordering "on the surreal" and "fatally flawed for numerous independent reasons." "There is simply no reading of the Disney+ Subscriber Agreement which would support the notion that Mr. Piccolo agreed to arbitrate claims arising from injuries sustained by his wife at a restaurant located on premises owned by a Disney theme park or resort which ultimately led to her death," they wrote in the 123-page filing. They confirmed that he did create a Disney+ account on his PlayStation in 2019, but he believes he canceled the subscription during the trial because he hasn't found any charges associated with it after that point. Piccolo's lawyers accused the company of trying to deprive Tangsuan's estate of its right to a jury trial. "The notion that terms agreed to by a consumer when creating a Disney+ free trial account would forever bar that consumer's right to a jury trial in any dispute with any Disney affiliate or subsidiary, is so outrageously unreasonable and unfair as to shock the judicial conscience, and this Court should not enforce such an agreement," they wrote. Piccolo's lawyers also took issue with the process itself, saying Disney didn't raise its alleged right to arbitration early enough in the proceedings. They further note that Piccolo didn't bring the lawsuit as an individual, but on behalf of Tangsuan's estate, which did not sign off on any such terms. There was no such estate at the time, since Tangsuan was still alive.

[nicklloydnow]

“Fear is archaic, it is embedded in the body, in its purest form untouchable to thought, and it is there to keep us alive. There are other vulnerable parts of the body, the heart being perhaps the most obvious, but when I think of the heart, I don’t think of it being pierced by a javelin or a spear or a bullet; that would be absurd. No, the heart fills me with thoughts of life and force, and if vulnerability and fear are involved, it is no more than a mild concern that one day it will simply stop beating. This must be because the heart belongs to the front of the body, the front we turn to the world, and always keep in check, since we can see what lies ahead of us, we can see what is coming, and take our precautions. The heart feels safe. That the neck is in fact just as safe, since we live in a world where people no longer carry swords, makes no difference to the feeling of vulnerability, it is archaic and closely linked to the fact that the neck belongs to the reverse side of the body, it is always turned toward what we cannot see and cannot control. The fear of everything we cannot see converges on the neck, and if in earlier times it used to be associated with physical violence, the most pressing association now is its figurative sense, which lives on in the social realm, in expressions like being attacked from the rear, getting it in the neck, watch your back, having eyes in the back of your head, being spoken about behind your back.

But the symbolic language that radiates from or the associations that converge on the neck, are not only about being struck, that is, being a passive victim of a surprise attack, or having something taken away from you, but also the opposite, where vulnerability is something that is offered. When we wish to show someone respect or to be polite, we bow to them, in other words, we expose our neck. It is a way of showing trust, and of giving something of yourself to the other, in an ancient system of differentiation where, in face of the supreme, you not only make a deep and sweeping bow, as to a king or other dignitaries, but kneel and lower your head to the ground, as you would before an altar or on a prayer mat. The gesture is humble, self-surrendering, it means laying your life in the hands of others.

While this country has not had the death penalty since the trials of Nazi collaborators after World War II, it is still applied in countries we have close ties to, namely the U.S.A., our main ally. If we consider the execution methods used there, it becomes obvious that death is not just death, since there is a big difference between separating the criminal’s head from his neck with a well-aimed stroke of the axe, and injecting his body with a lethal toxin or sending a surge of electricity through it. An injection has something neutral, controlled and professional about it, it is administered by a medical doctor, while electricity belongs to modernity and therefore seems civilized—though perhaps not so any longer, there is something crudely early modern about it, we associate it with quantity, with mass, and therefore also with the same kind of brutality and lack of sophistication shown by the errors of medical science during this era, lobotomy, measuring human skulls, eugenics. But still not as brutal as hanging, traditionally the least honorable form of execution, that most degrading to the victim—it is said that the prospect of being humiliated through hanging is what caused Göring to commit suicide in his N��rnberg cell—and even more so in the case of beheading. We perceive beheading as something barbaric and inhumane. To see a head being separated from a body must be one of the most terrifying sights a human being can be exposed to. But why? The end result is the same as when a lethal injection is administered, the person dies. It must be that something else is revealed in the act of decapitation, something more than the bare fact, the cessation of life functions. So what is it? In ritual sacrifice, which is still carried out in certain cultures, the head is separated from the body, and it is this, as much as death in itself, that the community gathers around. Death is displayed, and thus controlled, but the same would have been achieved if the victim had died quietly of poison.

(…)

When the French philosopher Georges Bataille founded the secret society Acéphale (The Headless) in 1936, which among other things celebrated the decapitation of Louis XVI and supposedly also discussed the possibility of carrying out a human sacrifice, the reason was not simply because the chop in the neck opened the abyss between life and death, but also between head and body, reason and chaos, human and animal, in a symbolic language where the neck forms the transition between what is low, corporeal-animal, and what is high, spiritual—but also in an ambiguous mythical language, where beheading reveals or liberates certain forces, murky and archaic, linked to death, soil, darkness, but also to repetition and continuity, for what the sacrificial victim exhibits, with its steaming blood and deep bellow, is a place where existence is dizzyingly densified. This is why Francis Ford Coppola ends his film Apocalypse Now with sacrifice and beheading, where meaning meets meaninglessness, life meets death, collective transgression meets individual limitation.

(…)

A face? We see what the face communicates, what it “tells” us. We enhance communication, we apply lipstick, mascara, we wear glasses, grow a beard, whiskers, or we don’t, but even a naked face tells us something, every look is a form of address, and a downturned gaze is not nothing, it is a non-address, a turning away. In the world of images we inhabit today, there is hardly a single part of the body that has not been exploited, sexually, commercially, or intellectually. Breasts, bottoms, thighs, calves, feet. Backs, biceps, six-pack abs. Cunts and cocks. Toes and fingers with nails lacquered red. Pierced tongues. Inner organs are bought and sold in the Third World; in the First World, the transactions take place between the living and the dead, in so-called organ transplants. In this sense, the neck is perhaps the only body part left that is not for sale, that is not on view in magazines and periodicals, that doesn’t serve as the owner’s marketing site or display window, that doesn’t change owners after death, and which, in contrast to its front side, the face, hardly communicates anything, neither contemporaneity, nor culture, nor community, and thus appears “mute.” And this is why, I think, that in looking at the neck, as these photos lead us to do, we get the feeling that we are being offered a glimpse of the body as it is in itself, non-individual, non-relational, biological, whole, and authentic. Something growing in a certain place in the world.

But the fact that the neck is unexploited visually and commercially of course does not mean that it stands outside of the culture, to the contrary, the neck, too, is loaded with meaning. It means only that it is marginal, somewhat forgotten, most often associated with not seeing, and with not being seen, that is, with negation, in contrast to the heart, for instance, which is also blind and mute, but in touch with a whole other wealth of signification. The heart signifies love, it means warmth, kindness, consideration. She has a big heart, home is where the heart is, our heartfelt sympathy, his heart is broken. The heart is life, light, love, compassion. The only figurative sense assigned to the neck that I can think of is found in the expression stiff-necked, that is, stubborn, obdurate, willful, intractable, impossible. To be stiff-necked is not to give way, not to yield a single inch, to always know best, always keep one’s cards close to one’s chest. The meaning can be extended to uprightness, which is the positive variant of being stiff-necked, that is, not relinquishing one’s pride and self-respect, holding one’s ground. Thus, the neck, in a certain sense, is linked to an existence outside of the community. The opposite, in the symbolic language of the neck, is to be stooped, that is, cowed, at the mercy of others, but in a more passive and less voluntary sense than when one bows deeply or kneels, out of respect for the other or in awe of the sacred.

It may seem as if the neck, in the symbolic language of body parts, has assumed the place between humility and pride, self-surrender and self-righteousness, but in a most discrete, gray eminence–like way, present only indirectly, as opposed to the more imposing organs and joints, like the brain, the symbol of intelligence, associated with a certain coldness and distance, but also with clarity and objectivity, not drowning in a heaving sea of vague emotions and sentimentality as one who thinks with the heart is.

In the metaphysics of the body, the neck forms the link between the reason of the mind and the light of the spirit, and the irrationality of the body and the darkness of desire. In other words, the neck is the place between and the place outside. To be stiff-necked, as opposed to cowed, does not refer only to exposing your neck or not, appearing defenseless or not, for when you bow your head you also conceal your gaze from the other. To look into someone’s eyes is to signal that you are equals, while to look down is to subordinate yourself to the gaze of the other, to no longer be on the same footing. It can also mean keeping something hidden, one’s true self, or something in it that one does not wish to be seen. The downturned gaze may contain hatred, or shame, or, as is often the case, both at once.

The primordial image of the bowed head and the downturned gaze is found in the Bible, in the story of Cain and Abel, where it is written about Cain that “his face fell.” Jahveh asks why Cain’s face has fallen, and continues: “If you do well, will not your countenance be lifted up? And if you do not do well, sin is crouching at the door, and its desire is for you, but you must master it.” This touches the very core of what it is to be human, as I see it, namely, that to be in yourself is inhuman, since that which is human is always something that becomes in relation to something else, yes, the human is this otherness, that we become ourselves in and that we exist in. To bow down is to bow down before something, to be stiff-necked is to be stiff-necked in the face of something, to worship is to worship something, and to look down is also to look away from something. This relativity, which is as complex as it is abstract and intangible, since it occurs in the spaces between, and has no object, no place of its own, never fixed, always in motion, turns the concept of biological man into a fiction, an image among images, nothing in itself, except in death, when for the first time the body no longer grasps at something, no longer seeks anything, and only then is it something in itself, that is to say, no longer human.

And perhaps this is the real and simple insight afforded by the sacrifice, that we are creatures of flesh, filled with blood, and that we are going to die. What sacrifice does is to penetrate every layer, every veil of culture, and in a gesture devoid of meaning in any other sense than this, it reveals to us the otherwise always inaccessible truth about our existence, of what we are in the world.”

[benrleeusa]

[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.)

Friends, if you’ve been hankering for a primer on the Arizona Constitution’s protections for the right to earn an honest living, which have waxed, waned, and (we hope) may soon wax again, you are in luck. IJ-Arizona attorneys Paul Avelar and Keith Diggs recently published just such a primer in the Arizona State Law Journal. Click here to read it.

Magazine publishes, retracts fabricated account of gang rape at fraternity party. Can three frat brothers who were not identified by name but allege they were readily identified (by friends, family, acquaintances) sue the magazine and the writer? Two can, says the Second Circuit. And (over a dissent) all three can pursue a separate defamation claim concerning whether the article implied that pledges had to participate in (or at least turn a blind eye to) gang rape to join the fraternity.

Palmerton, Penn., high school football player exhibits clear signs of concussion; coach puts him back in. He takes another big hit, sustains brain injury. Third Circuit: The coach could have foreseen that and was deliberately indifferent. But there was no case law at the time alerting him he could be liable, so the student can’t sue.

Allegation: Substitute custodian reluctantly acquiesces to sexual advances of head custodian at Atlantic City, N.J. school, is assigned fewer hours when she ceases to acquiesce. Third Circuit (over a dissent): Though he was only one of the many head custodians at different district schools who could assign her work, he was her supervisor. She can sue the school board.

DEA agents relieve two travelers of $41K at Cleveland airport. (No charges filed.) The travelers file paperwork contesting forfeiture. Prosecutors: In which they failed to detail how they came by the cash, which unfairly burdens our efforts to confirm or disprove their story. The court can’t consider their claims. Sixth Circuit: That is not the rule. The gov’t bears the burden of proof and can’t force property owners to do its work for it.

Milwaukee jail officer tells detainee suspected of faking medical distress that he’s to be treated like an animal. Officers don’t render aid when he writhes on the floor, moans, drools, spits, soils himself, bleeds, says he can’t breathe. He dies. District court: Qualified immunity and pay $300K sanctions and attorneys’ fees for (among other things) bringing baseless claims against parties who were only in contact briefly (if at all) with the deceased. Seventh Circuit: No qualified immunity and reconsider whether sanctions are appropriate.

Chicago law bans pet shops from obtaining animals from private breeders; pups must come from city shelters or nonprofits. Seventh Circuit (over a dissent): No need to let plaintiffs present evidence that the ban actually harms animals while disproportionately burdening out-of-state breeders (thus violating the Commerce Clause); dismissed on the pleadings.

Dog runs on highway near St. Joseph, Mo.; vehicles swerve at high speed to avoid it. An officer stops traffic, attempts to chase the dog off the highway. No luck. He shoots, wounds it, and administers coup de grâce after it drags itself onto median. Eighth Circuit: Qualified immunity. “A dog owner’s protected property interest wanes if her pet escapes.”

A San Francisco law requiring warning labels on soda and other sugary drinks is deceptive and likely violates the First Amendment, says the Ninth Circuit (with pictures). However, if officials tweak the language a little bit so as to say overconsumption of sugar may contribute to ill health…

To resolve lawsuit filed by the DOJ, Seattle police department adopts policy requiring officers to attempt de-escalation (when possible) and use reasonable force to resolve tense situations. (A federal compliance monitor reports that officers’ use of force has since declined significantly without increased crime or injuries to officers.) Police officers: The policy violates our Second Amendment right to self-defense. Ninth Circuit: Novel but no.

Man purchases “Cobra Sexual Energy” dietary supplement, finds it does not enhance his sexual performance or imbue him with “animal magnetism.” May his class action proceed even though the deadline to appeal may have passed? Ninth Circuit: There’s a circuit split on the issue, but we say yes.

Orange County, Calif., officers looking for son arrest father, a septuagenarian, tearing his rotator cuff. Realizing their mistake, they search the father’s home, going through drawers and cabinets where the son obviously won’t be found. Ninth Circuit: No qualified immunity for allegedly keeping the father handcuffed in patrol car in retaliation for his argumentativeness. But (over a dissent) he can’t press his excessive force claim. (Perhaps the father was feeling argumentative because of a previous warrantless raid.)

A California ban on force-feeding ducks and geese is not preempted by federal law, says the Ninth Circuit. Californians may still obtain foie gras, however, so long as it’s from non-force-fed fowl.

Reasoning that coal mining at two sites on Wyoming’s Powder River Basin (which produce 20 percent of the nation’s annual coal supply) will not impact climate change, the feds permit mining to continue. Tenth Circuit: No need to vacate the permits just now, but that does not make sense. Concurrence: We should have reached this result without commenting on the merits of climate science, which is not so settled as the majority suggests.

To get the premium features cable TV provider provides, one must rent a set-top box from the provider — and not from competitors (who do not currently exist but might emerge). Antitrust violation? Jury: Yup. Pay $6.31 mil damages. Tenth Circuit (over a dissent): Actually, no.

Company builds wind farm on private land in Osage County, Okla., digs up rocks, crushes them and pours them into the (10-foot-deep, 60-foot-wide) foundations for the turbines. Tenth Circuit: Which is mining. The company needed a federal mining permit.

District court: Fracking regulations promulgated by the Obama administration are invalid; the Bureau of Land Management needed the OK from Congress before creating them. Tenth Circuit: The case is prudentially unripe, as the current administration is in the process of withdrawing the rules.

Woman suing employer for discrimination fails to disclose the lawsuit as an asset in bankruptcy filings. Must the suit be dismissed? Overturning circuit precedent, the en banc Eleventh Circuit says no, not necessarily. If the trial judge thinks the plaintiff made an honest mistake, the case can proceed.

Police find man suspected of sexual assault, armed robbery with the complainants’ property. He’s convicted. D.C. Court of Appeals (over a dissent): Reversed. Police needed a warrant to locate him with a stingray device, which tricks cellphones into revealing their location.

Last week, Illinois Gov. Bruce Rauner signed a civil forfeiture reform bill into law, making Illinois the 25th state to strengthen protections for property owners. The law eliminates the state’s “cost bond” requirement (which forced property owners to put down a bond — the greater of $100 or 10 percent of their property’s value) to challenge a forfeiture, shifts the burden of proof from property owners to the state, and institutes new auditing and reporting requirements. Click here for more.

[nancyedimick]

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.)

Friends, if you’ve been hankering for a primer on the Arizona Constitution’s protections for the right to earn an honest living, which have waxed, waned, and (we hope) may soon wax again, you are in luck. IJ-Arizona attorneys Paul Avelar and Keith Diggs recently published just such a primer in the Arizona State Law Journal. Click here to read it.

Magazine publishes, retracts fabricated account of gang rape at fraternity party. Can three frat brothers who were not identified by name but allege they were readily identified (by friends, family, acquaintances) sue the magazine and the writer? Two can, says the Second Circuit. And (over a dissent) all three can pursue a separate defamation claim concerning whether the article implied that pledges had to participate in (or at least turn a blind eye to) gang rape to join the fraternity.

Palmerton, Penn., high school football player exhibits clear signs of concussion; coach puts him back in. He takes another big hit, sustains brain injury. Third Circuit: The coach could have foreseen that and was deliberately indifferent. But there was no case law at the time alerting him he could be liable, so the student can’t sue.

Allegation: Substitute custodian reluctantly acquiesces to sexual advances of head custodian at Atlantic City, N.J. school, is assigned fewer hours when she ceases to acquiesce. Third Circuit (over a dissent): Though he was only one of the many head custodians at different district schools who could assign her work, he was her supervisor. She can sue the school board.

DEA agents relieve two travelers of $41K at Cleveland airport. (No charges filed.) The travelers file paperwork contesting forfeiture. Prosecutors: In which they failed to detail how they came by the cash, which unfairly burdens our efforts to confirm or disprove their story. The court can’t consider their claims. Sixth Circuit: That is not the rule. The gov’t bears the burden of proof and can’t force property owners to do its work for it.

Milwaukee jail officer tells detainee suspected of faking medical distress that he’s to be treated like an animal. Officers don’t render aid when he writhes on the floor, moans, drools, spits, soils himself, bleeds, says he can’t breathe. He dies. District court: Qualified immunity and pay $300K sanctions and attorneys’ fees for (among other things) bringing baseless claims against parties who were only in contact briefly (if at all) with the deceased. Seventh Circuit: No qualified immunity and reconsider whether sanctions are appropriate.

Chicago law bans pet shops from obtaining animals from private breeders; pups must come from city shelters or nonprofits. Seventh Circuit (over a dissent): No need to let plaintiffs present evidence that the ban actually harms animals while disproportionately burdening out-of-state breeders (thus violating the Commerce Clause); dismissed on the pleadings.

Dog runs on highway near St. Joseph, Mo.; vehicles swerve at high speed to avoid it. An officer stops traffic, attempts to chase the dog off the highway. No luck. He shoots, wounds it, and administers coup de grâce after it drags itself onto median. Eighth Circuit: Qualified immunity. “A dog owner’s protected property interest wanes if her pet escapes.”

A San Francisco law requiring warning labels on soda and other sugary drinks is deceptive and likely violates the First Amendment, says the Ninth Circuit (with pictures). However, if officials tweak the language a little bit so as to say overconsumption of sugar may contribute to ill health…

To resolve lawsuit filed by the DOJ, Seattle police department adopts policy requiring officers to attempt de-escalation (when possible) and use reasonable force to resolve tense situations. (A federal compliance monitor reports that officers’ use of force has since declined significantly without increased crime or injuries to officers.) Police officers: The policy violates our Second Amendment right to self-defense. Ninth Circuit: Novel but no.

Man purchases “Cobra Sexual Energy” dietary supplement, finds it does not enhance his sexual performance or imbue him with “animal magnetism.” May his class action proceed even though the deadline to appeal may have passed? Ninth Circuit: There’s a circuit split on the issue, but we say yes.

Orange County, Calif., officers looking for son arrest father, a septuagenarian, tearing his rotator cuff. Realizing their mistake, they search the father’s home, going through drawers and cabinets where the son obviously won’t be found. Ninth Circuit: No qualified immunity for allegedly keeping the father handcuffed in patrol car in retaliation for his argumentativeness. But (over a dissent) he can’t press his excessive force claim. (Perhaps the father was feeling argumentative because of a previous warrantless raid.)

A California ban on force-feeding ducks and geese is not preempted by federal law, says the Ninth Circuit. Californians may still obtain foie gras, however, so long as it’s from non-force-fed fowl.

Reasoning that coal mining at two sites on Wyoming’s Powder River Basin (which produce 20 percent of the nation’s annual coal supply) will not impact climate change, the feds permit mining to continue. Tenth Circuit: No need to vacate the permits just now, but that does not make sense. Concurrence: We should have reached this result without commenting on the merits of climate science, which is not so settled as the majority suggests.

To get the premium features cable TV provider provides, one must rent a set-top box from the provider — and not from competitors (who do not currently exist but might emerge). Antitrust violation? Jury: Yup. Pay $6.31 mil damages. Tenth Circuit (over a dissent): Actually, no.

Company builds wind farm on private land in Osage County, Okla., digs up rocks, crushes them and pours them into the (10-foot-deep, 60-foot-wide) foundations for the turbines. Tenth Circuit: Which is mining. The company needed a federal mining permit.

District court: Fracking regulations promulgated by the Obama administration are invalid; the Bureau of Land Management needed the OK from Congress before creating them. Tenth Circuit: The case is prudentially unripe, as the current administration is in the process of withdrawing the rules.

Woman suing employer for discrimination fails to disclose the lawsuit as an asset in bankruptcy filings. Must the suit be dismissed? Overturning circuit precedent, the en banc Eleventh Circuit says no, not necessarily. If the trial judge thinks the plaintiff made an honest mistake, the case can proceed.

Police find man suspected of sexual assault, armed robbery with the complainants’ property. He’s convicted. D.C. Court of Appeals (over a dissent): Reversed. Police needed a warrant to locate him with a stingray device, which tricks cellphones into revealing their location.

Last week, Illinois Gov. Bruce Rauner signed a civil forfeiture reform bill into law, making Illinois the 25th state to strengthen protections for property owners. The law eliminates the state’s “cost bond” requirement (which forced property owners to put down a bond — the greater of $100 or 10 percent of their property’s value) to challenge a forfeiture, shifts the burden of proof from property owners to the state, and institutes new auditing and reporting requirements. Click here for more.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/25/short-circuit-a-roundup-of-recent-federal-court-decisions-74/

[wolfandpravato]

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.)

Friends, if you’ve been hankering for a primer on the Arizona Constitution’s protections for the right to earn an honest living, which have waxed, waned, and (we hope) may soon wax again, you are in luck. IJ-Arizona attorneys Paul Avelar and Keith Diggs recently published just such a primer in the Arizona State Law Journal. Click here to read it.

Magazine publishes, retracts fabricated account of gang rape at fraternity party. Can three frat brothers who were not identified by name but allege they were readily identified (by friends, family, acquaintances) sue the magazine and the writer? Two can, says the Second Circuit. And (over a dissent) all three can pursue a separate defamation claim concerning whether the article implied that pledges had to participate in (or at least turn a blind eye to) gang rape to join the fraternity.

Palmerton, Penn., high school football player exhibits clear signs of concussion; coach puts him back in. He takes another big hit, sustains brain injury. Third Circuit: The coach could have foreseen that and was deliberately indifferent. But there was no case law at the time alerting him he could be liable, so the student can’t sue.

Allegation: Substitute custodian reluctantly acquiesces to sexual advances of head custodian at Atlantic City, N.J. school, is assigned fewer hours when she ceases to acquiesce. Third Circuit (over a dissent): Though he was only one of the many head custodians at different district schools who could assign her work, he was her supervisor. She can sue the school board.

DEA agents relieve two travelers of $41K at Cleveland airport. (No charges filed.) The travelers file paperwork contesting forfeiture. Prosecutors: In which they failed to detail how they came by the cash, which unfairly burdens our efforts to confirm or disprove their story. The court can’t consider their claims. Sixth Circuit: That is not the rule. The gov’t bears the burden of proof and can’t force property owners to do its work for it.

Milwaukee jail officer tells detainee suspected of faking medical distress that he’s to be treated like an animal. Officers don’t render aid when he writhes on the floor, moans, drools, spits, soils himself, bleeds, says he can’t breathe. He dies. District court: Qualified immunity and pay $300K sanctions and attorneys’ fees for (among other things) bringing baseless claims against parties who were only in contact briefly (if at all) with the deceased. Seventh Circuit: No qualified immunity and reconsider whether sanctions are appropriate.

Chicago law bans pet shops from obtaining animals from private breeders; pups must come from city shelters or nonprofits. Seventh Circuit (over a dissent): No need to let plaintiffs present evidence that the ban actually harms animals while disproportionately burdening out-of-state breeders (thus violating the Commerce Clause); dismissed on the pleadings.

Dog runs on highway near St. Joseph, Mo.; vehicles swerve at high speed to avoid it. An officer stops traffic, attempts to chase the dog off the highway. No luck. He shoots, wounds it, and administers coup de grâce after it drags itself onto median. Eighth Circuit: Qualified immunity. “A dog owner’s protected property interest wanes if her pet escapes.”

A San Francisco law requiring warning labels on soda and other sugary drinks is deceptive and likely violates the First Amendment, says the Ninth Circuit (with pictures). However, if officials tweak the language a little bit so as to say overconsumption of sugar may contribute to ill health…

To resolve lawsuit filed by the DOJ, Seattle police department adopts policy requiring officers to attempt de-escalation (when possible) and use reasonable force to resolve tense situations. (A federal compliance monitor reports that officers’ use of force has since declined significantly without increased crime or injuries to officers.) Police officers: The policy violates our Second Amendment right to self-defense. Ninth Circuit: Novel but no.

Man purchases “Cobra Sexual Energy” dietary supplement, finds it does not enhance his sexual performance or imbue him with “animal magnetism.” May his class action proceed even though the deadline to appeal may have passed? Ninth Circuit: There’s a circuit split on the issue, but we say yes.

Orange County, Calif., officers looking for son arrest father, a septuagenarian, tearing his rotator cuff. Realizing their mistake, they search the father’s home, going through drawers and cabinets where the son obviously won’t be found. Ninth Circuit: No qualified immunity for allegedly keeping the father handcuffed in patrol car in retaliation for his argumentativeness. But (over a dissent) he can’t press his excessive force claim. (Perhaps the father was feeling argumentative because of a previous warrantless raid.)

A California ban on force-feeding ducks and geese is not preempted by federal law, says the Ninth Circuit. Californians may still obtain foie gras, however, so long as it’s from non-force-fed fowl.

Reasoning that coal mining at two sites on Wyoming’s Powder River Basin (which produce 20 percent of the nation’s annual coal supply) will not impact climate change, the feds permit mining to continue. Tenth Circuit: No need to vacate the permits just now, but that does not make sense. Concurrence: We should have reached this result without commenting on the merits of climate science, which is not so settled as the majority suggests.

To get the premium features cable TV provider provides, one must rent a set-top box from the provider — and not from competitors (who do not currently exist but might emerge). Antitrust violation? Jury: Yup. Pay $6.31 mil damages. Tenth Circuit (over a dissent): Actually, no.

Company builds wind farm on private land in Osage County, Okla., digs up rocks, crushes them and pours them into the (10-foot-deep, 60-foot-wide) foundations for the turbines. Tenth Circuit: Which is mining. The company needed a federal mining permit.

District court: Fracking regulations promulgated by the Obama administration are invalid; the Bureau of Land Management needed the OK from Congress before creating them. Tenth Circuit: The case is prudentially unripe, as the current administration is in the process of withdrawing the rules.

Woman suing employer for discrimination fails to disclose the lawsuit as an asset in bankruptcy filings. Must the suit be dismissed? Overturning circuit precedent, the en banc Eleventh Circuit says no, not necessarily. If the trial judge thinks the plaintiff made an honest mistake, the case can proceed.

Police find man suspected of sexual assault, armed robbery with the complainants’ property. He’s convicted. D.C. Court of Appeals (over a dissent): Reversed. Police needed a warrant to locate him with a stingray device, which tricks cellphones into revealing their location.

Last week, Illinois Gov. Bruce Rauner signed a civil forfeiture reform bill into law, making Illinois the 25th state to strengthen protections for property owners. The law eliminates the state’s “cost bond” requirement (which forced property owners to put down a bond — the greater of $100 or 10 percent of their property’s value) to challenge a forfeiture, shifts the burden of proof from property owners to the state, and institutes new auditing and reporting requirements. Click here for more.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/25/short-circuit-a-roundup-of-recent-federal-court-decisions-74/