Instagram foxes, kosher Pickles, and maritime riches.

Lisa Bergstrom · January 19, 2024

New on the Bound By Oath podcast: We journey back to a lost world, the world before zoning. Specifically, a trio of historic property rights cases, including an attempt to wipe San Francisco’s Chinatown off the map.

  • In which the D.C. Circuit upholds the FEC’s deadlocked-dismissal of complaints filed by End Citizens United PAC (which are of the variety you’d expect of a PAC by that name). Dissent: This prosecutorial discretion deference kind of doesn’t make sense without a majority of commissioners
  • Wedding-dress designer Hayley Paige Gutman is in a long-running contractual dispute with her former employer, JLM Couture. She locked them out of her social-media accounts, which she set up on her own accord, using her personal email and cell phone number. District court: The issue of social-media-account ownership is novel, so here’s a six-factor test to figure it out (with a W for JLM). Second Circuit: No need to reinvent the wheel; property is property, whether fox or Instagram profile. Remand to apply traditional principles of property law.
  • In Dr. Zhivago, Alexander Gromeko, upon learning that his house has been taken “in the name of the people,” screams, “Very well – I’m one of the people!” before his, um, comrades restrain him from breaking in. Well, in the Third Circuit 18-20 year olds can now exclaim the same thing, at least vis-à-vis the right to keep and bear arms.
  • Police stop U.S. citizen and immigrant from Sierra Leone and find $71,613 in cash. Police: That’s nice, we’ll take it. Driver: Actually it’s my entire life savings I made from my cash-only car sales business. Police: A likely story, tell it to Customs and Border Protection. Which he does pro se. CBP: Not likely. He then gets pro bono representation from Kirkland & Ellis and files suit and . . . within two months gets all his cash back (more than two years after it was taken). But can he then sue for damages? Third Circuit: The process is the penalty. And so is sovereign immunity.
  • Several Brazoria County, Tex. wells are subject to a lease under which a gas-producing company must pay royalties to a trust from gas produced from the land and sold or used off-premises while getting free use of gas for operations on lease premises. But what about gas used in off-lease processing services necessary to make the gas saleable? Fifth Circuit: Whatever we say would be an Erie guess, “more divining than discerning.” SCOTX can tell us.
  • Man sentenced to 96 months in prison for illegally possessing a gun, quite a bit above the 57-71 months of the guidelines for his situation. There were no victims, two witnesses testified about how the man’s presence made their neighborhood worse, and the court referenced arrests for which there was never a conviction. Fifth Circuit: Affirmed. District courts may allow all kinds of testimony relevant to sentencing, including non-victim witness testimony and details of previous arrests.
  • Texas police attempt to pull over driver who turned left at a stop sign without signaling. The driver doesn’t pull over but continues to his house. His estate’s complaint says he was then shot dead even though he attempted to comply with police and posed no threat to them. Fifth Circuit: But the body camera footage shows he in fact leapt from the car and pointed a gun at both officers. “Whether we apply the standard of ‘a reasonable officer on the scene’ or that of a math Ph.D.’s thesis advisor,” the officers acted reasonably.
  • “I haven’t seen Evil Dead II yet” queries John Cusack to Jack Black when probing the meaning of that last word. Similarly, we might inquire what the Fifth Circuit means when it examines whether the Supreme Court has implicitly overruled Humphrey’s Executor (1935), the case blessing “for cause” employment protections for appointees to independent agencies. The court’s bottom line: “at least not yet.”
  • Texas law requires any bookstore or other vendor selling to public school libraries to rate its materials according to their “sexually explicit” and “sexually relevant” content. Vendors sue. Texas: This is normal stuff, like a nutrition label. Fifth Circuit: Nutrition labels are factual and uncontroversial. This whole business is neither. Preliminary injunction upheld.
  • City of Mineral Wells, Tex., lures munitions manufacturer to set up shop with $150K in financial incentives. But then boom goes the dynamite! City revokes the “gift,” claiming it violates the Texas Constitution. Manufacturer: This aggression cannot stand! Fifth Circuit: This actually is a case where a constitution prohibits a certain kind of corporate welfare and the state courts actually enforce it. It’s the contract’s Waterloo. Dissent: Why can’t the nuclear option of “public purpose” work here like everywhere else?
  • Southwest suffers a “massive computer failure” resulting in a 3-day disruption with 475,839 customers enduring a cancelation or major delay and an estimated $77 mil in losses. Southwest: Hey, doesn’t that recent “cyber risk” policy cover this? Indeed, some insurers pay, but an excess insurer does not so Southwest sues. District court: Meh, this is all about recouping points and miles. Summary judgment for the insurer. Fifth Circuit: It’s a little more complicated than that. You’re now free to move about the case on remand.
  • Iowa man who goes by the moniker “Pickles” is arrested for arson. Though the sentencing guidelines suggest a range of 60 to 63 months, the district court sentences him to 84 months. But the feds think even that is too good a dill. Eighth Circuit: It’s kosher.
  • Dutch, a police K9, is playing fetch in the backyard with his handler when a guest steps outside. Before the handler can secure him, Dutch attacks the guest. She later sues, alleging excessive force in violation of the Fourth Amendment. Eighth Circuit: Dutch was off-duty and no one ordered him to bite. “This is really a negligence case” that belongs in state court.
  • In 1851, Congress enacted the Shipowner’s Limitation of Liability Act to “encourage the development of American merchant shipping” by limiting the liability of vessel owners for accidents that occur without their privity or knowledge to “the value of the vessel and pending freight.” Ninth Circuit: It also applies to jet skis, which is not new or even disputed in this appeal about the power of federal courts to enjoin state-court proceedings after a jet ski owner has availed itself of the Limitation Act, but it is both surprising and almost the only part your summarist understood.
  • Two maritime cases in one week?! It’s an embarrassment of riches. It’s also bad news for these guys found with more than 1,000 kilos of cocaine on their go-fast boat off the coast of Ecuador. Per the Ninth Circuit, Congress did not overstep its constitutional authority to “define and punish . . . Felonies committed on the high Seas” or international law when it enacted the Maritime Drug Law Enforcement Act, under which the boat was deemed stateless and, hence, subject to U.S. jurisdiction. (And flashback to a similar “honkload of stateless cocaine” mentioned in this newsletter three years ago.)
  • Just after George Floyd’s murder, protestors in Mobile, Ala., block a highway and police deploy tear gas. In the chaos one protester smashes a police car window with a baseball bat. She’s convicted in federal court of “impeding law enforcement during a civil disorder.” But is the statute within Congress’s Commerce Clause power? Eleventh Circuit: Yikes, this is actually kind of a close one. But highways carry lots of commerce, right?
  • An in en banc news the D.C. Circuit (over the objections of four judges) will not rehear its decision that orders to enforce a warrant seeking information from the account @realDonaldTrump were constitutional and proper.
  • And in more en banc news the Fourth Circuit will take en banc three Second Amendment cases, even though only one of them has had a panel opinion in its present round of briefing.
  • And in further en banc news the Ninth Circuit will reconsider its decision (based on earlier precedent) that the denial of motions made under California’s anti-SLAPP law are appealable on an interlocutory basis.

It was a Supreme week for property rights and for IJ. On Tuesday, January 16, Senior Attorney Bob McNamara argued before the Supreme Court on behalf of a fourth-generation Texas farmer, Richie DeVillier, whose farm was flooded by the state. Our position is simple: If a state takes your property and doesn’t pay for it, you should be able to sue. Lawyers for the State of Texas and the Biden Administration disagreed. We’re cautiously optimistic and looking forward to a decision by June.