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NEWSLETTER

Furtive offenses, cable bundling, and a Twitter pile-on.

  • Maine enacts a law requiring cable companies to offer channels—and even individual programs—a la carte. Cable companies sue, alleging the law violates the First Amendment. First Circuit: At the very least it implicates the First Amendment, and the government has conceded it has no evidence to satisfy any First Amendment standard, so preliminary injunction granted.
  • Believing that black people were more likely to commit “furtive offenses” as opposed to “the robust crimes of the whites,” attendees at the 1890 Mississippi constitutional convention include crimes like burglary, theft, and arson—and not robbery or murder—in a list of offenses that will trigger a loss of voting rights. In 1950 and 1968, the list is amended to remove burglary and add murder and rape. Does the original discriminatory purpose mean that the current list violates the U.S. Constitution? Fifth Circuit (1998): No, the amendments removed the discriminatory taint. Fifth Circuit (2021): Our hands are tied by our earlier decision.
  • Allegation: Staff at North Richland Hills, Tex. jail knew pretrial detainee had epilepsy but did not provide medication. She suffers a seizure, falls, and fractures her hip. Instead of going to a hospital, she’s transferred her to another jail (and only then to a hospital). Can she sue anyone? Fifth Circuit: No.
  • Following a particularly vigorous Twitter pile-on, a group of high school students sued a doctor from New Jersey and a comedian from California for their allegedly tortious tweets. And, being from Kentucky, they sued in Kentucky district court. Sixth Circuit: The defendants are not subject to personal jurisdiction in Kentucky, as they didn’t do anything in the state. Their tweets were directed to the world at large, not to Kentucky in particular, even if they happened to be about Kentucky residents.
  • Allegation: Michigan prisoner tells staff that his cellmate has threatened him. Soon after, the cellmate beats him in the head with a softball-size rock in a mesh bag. Sixth Circuit: Qualified immunity.
  • Pro se inmate sues, alleging that his filthy cell conditions and bright lights that leave him sleep deprived violate the Eighth Amendment. He requests appointment of counsel six times and is denied each time. An abuse of discretion? Seventh Circuit: He actually did a pretty good job representing himself, and pro bono counsel is in short supply. No error.
  • At the end of a night of drinking, an off-duty police officer shot his friend in the head. The friend—now permanently disabled—sued the City of Chicago, claiming that the police department maintained a culture of impunity that led the officer to believe he could get away with the shooting. The jury evidently agreed, awarding $44.7 mil in damages. Seventh Circuit: The City cannot be held responsible under federal law for what is, in the end, an act of private violence.
  • Certain Minnesota sex offenders face civil commitment for an indeterminate period of time, able to leave only when state officials say so. Since the program started in 1994, 714 people have entered, and only three have left. Eighth Circuit (2017): The general structure of the scheme, including indefinite confinement, is fine. Eighth Circuit (2021): But the conditions of that confinement cannot be punitive, and the district court needs to evaluate whether these conditions (including double-bunking, harsh punishment for rules violations, and destroying property before a hearing) serve to punish.
  • Dissatisfied with California’s management of the San Francisco Bay/Sacramento-San Joaquin Delta Estuary, the United States sues the state’s Water Resources Control Board in both state court and federal. The claims are the same in both cases (they’re state administrative-law claims), but in the federal case, the United States adds a federal claim of intergovernmental immunity. District court: Given the two overlapping cases, I’m going to stay the United States’ state-law claims to allow their resolution in the state-court action. But the intergovernmental-immunity claim may proceed. Is that sort of partial “Colorado River stay” permissible? The world needs to know! Ninth Circuit: Generally, a partial Colorado River stay is not permissible, so the district court should allow all of the United States’ claims to proceed.
  • Allegation: Oklahoma sheriff’s deputy has beef with the sheriff, supports his political opponent: her husband. The sheriff is cordial throughout the election, but fires her the day after he is reelected. A First Amendment violation? Tenth Circuit: A clearly established one, in fact (assuming the allegations are true).
  • Suspecting New Mexico man of smuggling migrants, police meet him at home and request to search his house. After being rebuffed, they conduct a “protective sweep” of the house, during which they see a gun safe. Uh oh! He’s a felon and can’t own guns. Now police get a warrant, search the safe, and arrest him. Tenth Circuit: You did not do these things in the right order; evidence suppressed.
  • Allegation: Guards at federal prison in Atlanta strip restrained inmate naked and fondle his private parts. Eleventh Circuit: Which “we condemn in the strongest possible terms.” But under the Federal Tort Claims Act, there’s no remedy. He suffered neither a “physical injury” nor any of the types of “sexual acts” enumerated by Congress.
  • And in en banc news, the Second Circuit will not reconsider its decision rejecting a disparate impact challenge to a technology company’s use of criminal background checks in its employment decisions. Multiple judges dissent, suggesting the panel improperly applied its own intuitions to reject the claims at the pleadings. And the panel concurs, defending the initial opinion as “common sense.”
  • And in additional en banc news, the Fourth Circuit will reconsider its decision declining to inquire further into whether a juror’s Twitter activities prejudiced the outcome in the mail-fraud trial of the former Chief Justice of the West Virginia Supreme Court of Appeals.
  • And in further en banc news, the Fifth Circuit will reconsider its decision requiring Dallas County, Tex. courts to hold bail hearings within 48 hours of arrest and barring judges from setting bail at prescheduled amounts.


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