Detroit’s forfeiture machine, major nuclear questions, and copyrightable materials.

John Ross · September 1, 2023

You want to hear something neat? Next month, IJ is going to argue before the Michigan Supreme Court—but not at the Michigan Supreme Court. Instead, oral argument will be held at a high school in Flint because sometimes—in cases of deep importance and keen public interest—the Michigan supremes take their show on the road. And indeed the question of whether officials who repeatedly flew a drone over private property in search of code violations should have first obtained a warrant is of great moment. Click here to learn more. 

And speaking of neat, Georgia Public Radio has a story about IJ’s latest eminent domain case, one which asks the question: is a taking by a private railroad, primarily to benefit a different private company, a public use?

  • Federal law requires anyone who publishes books with “copyrightable” material to provide free copies of those books to the gov’t. Is this a taking? D.C. Circuit: When the gov’t takes your stuff, it’s a taking. (This is an IJ case.)
  • FDA refuses to allow company to market its vaping products, both flavored and unflavored. D.C. Circuit: And it was fine to prohibit the flavored products, given their appeal to the youths, but the unflavored products are a different story. The FDA failed to consider the potential benefits of the products or weigh those against public-health risks.
  • If you ever find yourself, as a lawyer in a negotiation, shouting, “I don’t give a f–k about those kids,” maybe take a step back and rethink your choices. In related news, the Second Circuit has affirmed attorney Michael Avenatti’s convictions for trying to shake down Nike over alleged secret payments to youth basketball players.
  • When it comes to offensive words, your summarist’s six-year-old is a master of the “use/mention distinction,” and has figured out that asking questions about words and quoting their use by others will not provoke the same reaction from his parents as will actually employing the verboten language. And according to the Third Circuit, the Pennsylvania Rules of Professional Conduct are similarly discriminating. Thus, a Pennsylvania attorney who regularly gives continuing legal education presentations about First Amendment protection for offensive speech could not reasonably fear his mention of offensive words will trigger discipline.
  • Philadelphia police spot driver whose house they have a warrant to search and decide to stop him. While wearing plain clothes (“to maintain an advantage”) and driving unmarked cars, they box in the driver on a one-way road. When the unarmed driver attempts to free his car, one of the officers shoots him to death. Third Circuit: To trial this must go. Denial of qualified immunity affirmed. (Video.)
  • New Jersey police arrest a robbery suspect in his hotel room, find car keys, and get permission from the rental car company to search what he says is his rental car. Turns out his girlfriend rented it. Ah hah! They find contraband. Suppress the evidence? District court: No. Third Circuit (over a dissent): Reversed. He had a reasonable expectation of privacy as girlfriend gave him permission to use the car.
  • After finding his usual “chill out” room is unavailable, agitated 17-year-old special-needs student tries to leave Katy, Tex. school and wrestles with staff trying to prevent him. A school resource officer tells staff to let him go and then tases him after he takes a few steps outside, continuing even after he is lying on the ground and not struggling. The teen urinates, defecates, and vomits. Excessive force? Fifth Circuit (2021): The thing is it’s not clearly established that school officials can ever be held liable for using excessive force, and we decline to clear that up for the future. Fifth Circuit (2023): And his other statutory and constitutional claims fail.
  • Fifth Circuit (unpublished): The district court should not have granted qualified immunity to a Louisiana probation officer moonlighting as a security guard who dragged an allegedly unoffending man out of a Mardi Gras event, causing serious injuries to his neck and shoulder. On remand, the officer needs to show that probation officers have the authority (under state law) to put people in wristlocks and drag them out of venues—if not, qualified immunity is not available to him.
  • Is storing nuclear waste a “major question”? In the Fifth Circuit it’s apparently major enough to conclude Congress has not allowed for licenses for temporary storage facilities.
  • Woman who has held a green card for nearly 30 years is caught driving nearly 100 lbs of marijuana across the border. Her criminal-defense attorney tells her it’s “very likely” that she’ll be deported if she pleads guilty to drug charges. She pleads guilty anyway—after which she discovers that her deportation is mandatory. Ineffective assistance of counsel? Fifth Circuit: Her attorney needed to make clear that serious immigration consequences would result; a “very likely” deportation was sufficient.
  • Two brothers are convicted of Metairie, La. murder—one (Jarrell) is sentenced to death, and one (Zannie) gets life in prison. Their convictions are primarily based on their uncle’s testimony, who said that he remained in a car while his two nephews went into a house, Jarrell fired a rifle, and then they both returned to the car. Meanwhile, an eyewitness testified that the shooter looked like the uncle, not Jarrell. Seeking habeas, Jarrell points to three items of evidence: (1) blood on his uncle’s shoes, (2) a forensic report excluding Jarrell’s shoes as the source of the bloody shoeprint inside the house, and (3) an inconsistent prior statement of the uncle’s. His attorney didn’t present any evidence at trial (including this good stuff), and he waived opening statement. Fifth Circuit: Habeas affirmed. “We find that trial counsel’s ‘strategy,’ if there even was one … was ‘not sound.'” (Ed. note: It is quite unusual for the Fifth Circuit to deem habeas appropriate.)
  • After a street preacher refuses to remain in a designated protest zone, Brandon, Miss. officials cite him. The preacher pleads no contest and pays his fine. Then, citing his intentions to violate the ordinance in the future, he sues the town to invalidate the ordinance for violating his First Amendment rights. Fifth Circuit (unpublished): The Heck you will. Since you pled guilty to violating the ordinance in the past, you can never challenge it in the future. Ever.
  • Allegation: Detroit officials have a nasty habit of seizing cars (over a thousand a year) with little regard to actual wrongdoing and then holding them for months or years without giving owners a hearing. Plaintiffs: Due process requires a hearing in 30 days. Sixth Circuit: Due process requires hearings in two weeks. Concurrence: Due process requires hearings in two days. (This is an IJ case.)
  • Allegation: After his daughter is benched, annoying Baxter, Tenn. dad annoyingly texts her softball coach to complain. He’s told not to come to games for a week. (He does anyway but leaves on pain of arrest.) Unconstitutional retaliation over his protected speech? Sixth Circuit: Could be! To discovery this must go. Grant of QI reversed.
  • Summoned to Campbell County, Ky. home over report of domestic dispute, police encounter man slurring his speech and a woman that he refuses to let speak with them. He closes the front door on them; they knock it down, point gun at him, and ultimately leave without arrests or citations. Sixth Circuit: No qualified immunity. Partial dissent: Agreed that a jury should decide if the gun pointing was excessive force, but forcing their way in was fine.
  • Your editors would very much like to meticulously summarize an appellate decision about how the National Police Association resoundingly lost its defamation lawsuit against The Indianapolis Star and the AP, but the National Police Association seems to be quite free with its defamation lawsuits. So, chilled as we are, we shall merely invite you to read the Seventh Circuit‘s opinion (and to read this recent Indy Star article about IJ’s latest case!)
  • During the COVID-19 pandemic, San Francisco enacted the “Healthy Airport Ordinance,” requiring airlines that use San Francisco International Airport to provide employees with certain health insurance benefits. A coalition of airlines sues, alleging that the requirements are preempted by federal law, but the district court holds that the city was merely acting as a “market participant,” and therefore not subject to the preemption claim. Ninth Circuit: The insurance requirement is backed up by civil penalties that have the force of law. The city was acting as a regulator, not a market participant. Dissent: Lots of private contracts impose “coercive” penalties for breach.
  • Los Angeles County enacts eviction moratorium during the pandemic. Landlord: My tenant took advantage and stopped paying rent; the county violated the Contracts Clause. District court: I think maybe you could have evicted the tenant anyway; no standing. Ninth Circuit: Stop confusing standing and the merits. Reversed.
  • Los Angeles officer shoots, kills trespasser at a gym after a minutes-long scuffle. Ninth Circuit (2022): Lots of disputed facts, no video, but no warnings can be heard on the audio and you have to give a warning (if practicable) before you use deadly force. No QI. Ninth Circuit (2023, on panel rehearing): QI. You don’t have to give a warning when your partner is pinned down and being pummeled in the head. Dissent: Physical evidence and statements by the gym’s security guards strongly suggest the officers are lying about that.
  • And in en banc news, the Fifth Circuit will reconsider its opinion allowing Jackson Municipal Airport Authority commissioners to continue their suit against Mississippi state legislators for disbanding the authority (appointed by city officials) and replacing it with a regional one (appointed by state officials) for allegedly racist reasons.  
  • And in more en banc news, the Fifth Circuit will reconsider its decision that hitching a ride across the border in a car with 283 pounds of marijuana is not necessarily possessing marijuana.
  • And in additional en banc news, the Eighth Circuit will not reconsider its decision that all felons can be categorically barred from possessing firearms under the Second Amendment. In a “dissental,” Judge Stras provides what he previously said was “more to come.” (As discussed in this edition of the podcast.)

Victory! This week, a state trial court struck down Orange City, Iowa’s mandatory rental-inspection program, whereby code enforcement officers could demand entry into tenant’s homes without consent and without a scintilla of suspicion or particularized probable cause suggesting something is actually amiss. But the Iowa Constitution forbids treating renters like second-class citizens, and the court ruled that henceforth officials must show “some plausible basis for believing that a violation is likely to be found” and moreover that tenants must be notified of the city’s application for a warrant and given a chance to advocate for restrictions on timing and scope of the inspection. Click here to learn more.