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NEWSLETTER

An unvaccinated firefighter, HIV-positive airmen, and a racist lawyer.

  • Electronic service provider ABC Corp. (a pseudonym) received a grand jury subpoena for subscriber information, along with a court-ordered nondisclosure order prohibiting it from telling anyone about the subpoena for one year. An unconstitutional prior restraint on speech? The Supreme Court may have roundly rejected prior restraint, says the Third Circuit, but this is one of the rare cases where one will be upheld.
  • The Air Force’s effective ban on deploying HIV-positive airmen is out of step with modern science, says the Fourth Circuit. So no discharging two airmen (who are asymptomatic and whose doctors and commanding officers support their retention) while this lawsuit proceeds.
  • Firefighter refuses Leander, Tex. city requirement that all personnel receive a Tdap vaccine, citing his Baptist faith. The dep’t offers him two options: Take a code enforcement job with the same pay and benefits or wear a respirator while on duty. When the firefighter declines both options, he’s fired for insubordination. Illegal religious discrimination? A free exercise violation? Neither, says the Fifth Circuit. The city offered reasonable accommodations that do not burden the firefighter’s religious practice. Judge Ho (concurring/dissenting): I think we need more facts. Also, allow me to tell you at considerable length why both Employment Division v. Smith and qualified immunity are bad.
  • Federal inmate writes a letter to the district court explaining that, following a gender transition, they would like the court to change the name on the 6-year-old judgment to reflect their new legal name. District court: A subsequent name change is not a clerical error that a court can fix. Fifth Circuit: As no rule authorized this kind of motion, the district court lacked jurisdiction to entertain it. And we won’t use the inmate’s preferred pronouns because Congress hasn’t told us we must. Dissent: We should not issue drive-by jurisdictional rulings or use non-preferred pronouns.
  • As undercover FBI agent reaches police barricade at Garland, Tex. event featuring drawings of the prophet Muhammed, two men with whom the undercover agent had been communicating jump out of the car behind him wearing body armor, carrying hundreds of rounds of ammunition and a photocopied ISIS flag. They shoot a security guard in the leg before being promptly killed themselves. Can the security guard sue the feds? The Fifth Circuit says no.
  • Sixth Circuit: I’ve got good news and bad news. The good news is that the Ninth Circuit has changed the way it calculates drug sentences, so if you were sentenced today, you would only get 10 years instead of the 20 you’re serving. Habeas petitioner: That’s great! What’s the bad news? Sixth Circuit (over a dissent): You were not sentenced today.
  • Allegation: After Huron County, Mich. officer arrests extremely drunken woman for DUI, he takes her to jail and has her walk up stairs with her hands cuffed behind her back while he waits at the top of the stairs. Gravity + ethanol = head trauma. District court: This is just like another case, where a court held that police can’t leave a drunk person cuffed in a holding cell where they might injure themselves. Sixth Circuit: That (out-of-circuit) case was about holding cells. This case is about stairs. Qualified immunity.
  • Bungled prosecution, O. Henry, and Mark 12:17—not to mention the modified categorical approach—are all on display in a bizarre story out of the Sixth Circuit. The upshot? Mosques aren’t used in interstate commerce, even when former congressional candidates plot to blow them up.
  • 312-pound teenager with a heart condition runs from a store security guard after being caught shoplifting. Apprehended by Indianapolis police upon collapsing from the exertion, he complains of difficulty breathing after being handcuffed behind his back. Police call paramedics, who examine him, find him breathing normally, and say he’s fine. While waiting for the jail wagon to arrive, he ceases to be fine—he’s unresponsive and his pulse is weak. Police call another ambulance, but paramedics are unable to revive him. The medical examiner determines he had a heart attack exacerbated by (among other things) the handcuffs. Seventh Circuit: This is tragic, but the police didn’t know the handcuffs were causing breathing trouble, and the suspect didn’t complain about the tightness of the cuffs. Qualified immunity.
  • Man convicted of 1989 murder learns, years later, that his appointed counsel believed that his black clients were idiots who deserved to be convicted. New trial? Ninth Circuit (2018): No. You didn’t show his racism adversely affected his performance. All three judges, concurring in their own judgment: Unfortunately, we’re bound by Ninth Circuit precedent to reach this result. Ninth Circuit (2020, en banc): The state now concedes a new trial is warranted, so, without reconsidering our precedent, conviction vacated.
  • The feds fund teen pregnancy prevention through grant programs with two funding tiers. The first tier is for replicating programs that have been proven effective, and the second tier enables grantees to test new programs. According to Planned Parenthood, the grant programs illegally favored or required abstinence-only programs in 2018. Ninth Circuit: That is indeed the case for the first tier, which demands grantees use two never-before-implemented tools. Something that has never been implemented cannot have been proven effective. As for the second tier, the district court shall address it first.
  • Allegation: Healthy 27-year-old arrives at Hutchinson, Kan. prison, begins suffering a variety of increasingly alarming symptoms: numbness, decreased vision, his arms shake uncontrollably, his fingers bend in abnormal directions. He tells medical staff “it feels like something is eating my brain.” The staff either fabricate or mistakenly document an MRI scan of his brain that turns up normal. Soon after, he begins talking incoherently, drinks his own urine, defecates on himself and doesn’t clean up. A real MRI is taken, revealing a widespread infection in his brain. Instead of being taken to a hospital, he’s put back in isolation. The next day his heart stops and he is rushed to the hospital where he dies. Tenth Circuit: The allegations against a particular doc aren’t sufficiently specific, so qualified immunity. (The case is proceeding below against other medical staff, however.)
  • While in jail on misdemeanor charges, inmate asks guard if he can charge his cell phone, which was not taken from him during booking. Uh oh! He’s charged with possessing contraband! Trial court: “[C]onsider yourself fortunate” that I’m only sentencing you to 12 years in jail, with parole eligibility after three, instead of a full 15-year sentence. Mississippi Supreme Court: “While obviously harsh, [a] twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate.” Concurrence: Our case law does, indeed, demand we uphold a 12-year sentence against this father of three for a victimless crime likely caused by a failure in booking procedure, but the prosecutor and trial judge deserve a mild finger-wagging for being so punitive. (H/t @jduffyrice)


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