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NEWSLETTER

Waters of the United States, stolen gift cards, and Hester Prynne.

  • In 2003, a Massachusetts man was convicted of being a felon in possession of a firearm. But wait a minute. The assistant U.S. attorney who signed the indictment hadn’t paid his bar dues, so his law license was suspended. Will the First Circuit retroactively throw out the whole prosecution? What do you think, anyone who has ever litigated against the government?
  • Allegation: Man wakes up gasping for air. He’s turning blue, biting his tongue, and urinating. His wife calls 911. When Charlton, Mass. police arrive, they order the man to stop moving. Instead, he stumbles around in his underwear asking “What did I do?” So they shove him to the ground and kneel on his back (and then leglock him, and then handcuff him). He ends up with a seizure diagnosis and a fractured spine. First Circuit: Qualified immunity for the shove. But there might be some recovery for the kneeling (or for the shove under other legal theories).
  • Lawyer representing indigenous Ecuadorians sues Chevron for environmental damage, secures multi-billion award. Uh oh! He did it by bribing the judge a half million dollars, among other shenanigans. Following a RICO suit in the United States, the plaintiff’s lawyer is prohibited from profiting from the Ecuadorian judgment. Does this include raising money by selling interest in the fraudulently obtained judgment? Second Circuit: It does, but we weren’t sufficiently clear about that the first time around, so don’t do it again. Dissent: We were totally clear about that. The civil-contempt ruling should stand.
  • In March 2020, Congress’s Paycheck Protection Program authorized the Small Business Administration (SBA) to guarantee favorable loans to certain businesses affected by COVID-19. SBA: Businesses presenting “live performances of a prurient sexual nature” are excluded from the program. Strip club: That violates the underlying statute and the First and Fifth Amendments. District court: You’re probably wrong, so no preliminary injunction for you. Second Circuit: Agreed.
  • Clarkstown, N.Y. officers stop and frisk man walking out of store with his two daughters; one officer recognized the man and, based on nothing more than a hunch, “believed that there might be” an outstanding warrant for him. Officers admitted, however, that they could point to no actual facts to believe he had committed any crime, and in fact the man had no outstanding warrants and the frisk found no weapons. Man sues, pro se. Police argue for qualified immunity as there’s no clearly established law that this is wrong. Second Circuit: This was a “paradigmatic violation of the Fourth Amendment.” QI denied.
  • South Carolina fourth-grader writes an essay about LGBTQ equality for inclusion in a booklet of essays to be kept in the classroom and sent home with students. Principal vetoes inclusion of the essay as not age-appropriate, then relents, but student’s mother says she no longer wants essay reprinted in booklet. Instead, she sues, alleging that the principal violated the First Amendment by providing “no adequate explanation for holding that [the student’s] essay had no valid legitimate educational purpose.” Fourth Circuit: “This argument, like most of the arguments advanced by Appellant, completely misses the point.”
  • Decades ago, a 20-something Virginia nanny had sex, once, with a 15-year-old boy. Now in her 50s, she’s suing pseudonymously as “Hester Prynne,” challenging “Orwellian” features of Virginia’s sex offender registry: she must submit fingerprints every 90 days, notify the state of new email addresses within 30 minutes, face unannounced home visits from a permanent investigator, avoid schools while kids are around, never drive for Uber or Lyft, notify federal and international law enforcement when traveling in other countries, give up the possibility of adoption, and more. Fourth Circuit: And since those restrictions didn’t exist at the time of the crime, there might be an ex post facto problem. (The opinion—22 pages long, accompanied by a 35-page partial dissent, and splitting with an earlier unpublished decision of the same court—is unpublished. (And even more parenthetically, legal-writing friends who gasped at the Supreme Court’s first use of the “(cleaned up)” parenthetical last week may find this footnote, from Judge Agee’s dissent, notable: “I have omitted internal quotation marks, alterations, and citations here and throughout this opinion, unless otherwise noted.”))
  • Prosecutors in Texas murder trial use a spreadsheet listing potential jurors’ races and bolding the names of black people. This results in a jury of 11 white jurors and one black juror, which convicts and sentences to death a black man. But the federal courts cannot consider that spreadsheet, says the Fifth Circuit, as it was not included in the state-court appeals. (No matter that prosecutors did not hand it over until after his state-court appeals were done.) Besides, the spreadsheet seems fine.
  • Industry trade associations challenge a federal regulation limiting concentrations of phthalates—chemicals that have been shown in some studies to interfere with normal development of the male reproductive system—in children’s toys. Fifth Circuit: The agency violated the APA when it failed to offer a second opportunity to comment after new scientific data led it to change its justification for the rule, and the agency also failed to conduct an adequate cost benefit analysis. However, we will leave the rule in place while we give the agency an opportunity to remedy those defects.
  • If esoteric questions of diversity jurisdiction, appellate jurisdiction, and Burford abstention strike you as appealing (appealing!), then step up for this Fifth Circuit fed-courts funhouse.
  • Pro-tip: When a court dismisses your arguments as “unpersuasive at best, and nearly incoherent at worst,” you are probably going to lose your case. Relatedly, the Sixth Circuit would like this law firm to show cause why it should not be sanctioned after it sued three judges on a state appellate panel for allegedly making false statements in a judicial opinion.
  • Turns out that the transmissibility of COVID-19 has no connection to whether your large gathering consists of lockdown protestors or BLM protestors. Relatedly, the governor of Kentucky committed a “textbook” First Amendment violation when he threatened the former with prosecution, while inviting and speaking to the latter. But, as the Sixth Circuit notes, the case is moot on appeal, because the governor rescinded the COVID-19 restrictions.
  • A Cleveland-area postal-service employee stole gift cards out of en route mail. All told, she stole a lot of cards averaging about $35 each—a total value around $47k. So the “loss,” for the Sentencing Guidelines, would be about $47k, right? The feds: Not at all. Stolen gift cards are “unauthorized access devices” like stolen credit cards, and the Guidelines commentary says the “loss” per unauthorized access device should be at least $500. So the “loss” is more like $750k. Sixth Circuit: You keep using that word. We do not think it means what you think it means.
  • Federal prosecutors charge members of a white supremacy group—who travelled to political rallies planning violent confrontations—with violations of the Anti-Riot Act. Ninth Circuit: The Act is unconstitutionally overbroad, as it covers speech merely intended to encourage or promote a riot, but we can cure the defect by striking a few unconstitutional words from the statute. Dissent: I agree, but I would strike fewer of those words. (We previously covered a similar Fourth Circuit ruling on the podcast.)
  • Would you believe that dry land can be categorized as “waters of the United States,” and thus subject to regulation under the Clean Water Act? Ninth Circuit: Indeed! But to secure a conviction the government had to prove the defendant knew the land was “water.” The district court should hold another trial, and this time it should tell the jury about the knowledge requirement. Dissent: The government should have to prove the defendant knew he was discharging a pollutant into “waters of the United States,” and not just any “water.”
  • Exemption 5 to the Freedom of Information Act excludes certain intra-agency memos from production if they would not be available by law to a party in litigation with the agency. Does this include memos produced by outside consultants for the FAA? Ninth Circuit (en banc): When the consultant is acting as the functional equivalent of the agency, then yes. But the FAA hasn’t provided a good enough explanation of how it searched for other responsive documents, so back down it goes.
  • The town of Gilbert, Ariz. is justly famous not only for its sign code, but for happy hour at the nearby Mad Dog Saloon. (“Great happy hour,” Heather R. reports credibly on Yelp.) On the evening of May 5, 2016, a local man leaves the saloon and catches a police officer’s attention by swerving his vehicle. Ignoring the police lights, he drives home and into his garage, where he refuses at length to leave the vehicle and insists, “No, I’m not under arrest.” The police release a K-9, which bites the man for almost a minute. Man sues. Ninth Circuit: Qualified immunity.
  • To practice law in Oregon (as in many other states) you must pay not only for a license, but also dues to the state bar association. A group of lawyers who in no way want to associate with the association say that violates their First Amendment rights. Ninth Circuit: Not your free speech rights it doesn’t. But back to the district court on whether there’s a violation of the freedom of association.
  • Jailhouse informant provides the prosecution’s only direct evidence, and the defendant is convicted of a Colorado Springs, Colo. murder. Yikes! The informant recants, says his false testimony was induced by the lead detective. The convicted man seeks habeas relief, which the Tenth Circuit revives once in 2013 and again in 2018. Alas, the third time isn’t the charm, as the Tenth Circuit refuses to entertain the man’s newest arguments because he did not include them in his original habeas petition.
  • A 35-week-pregnant woman—held in custody at the Metropolitan Detention Center in Bernalillo County, N.M.—goes into labor. For 30 hours, the medical contractors on site ignore and minimize her symptoms, refuse to take her to the hospital, and fail even to conduct a pelvic examination. When she finally gives birth, her child is stillborn. She sues. Qualified immunity for the medical contractors (all employees of a for-profit, multi-state corporation)? Tenth Circuit: No.
  • After a young woman’s father alerted police to her illegal drug use, the woman spent four days in Duchesne County, Utah jail vomiting and exhibiting other symptoms that jail officials ascribed to a stomach bug. Without medical treatment, the young woman died of opiate withdrawal. Tenth Circuit: The jail employee who ignored the woman’s symptoms is potentially liable. But the jail’s private doctor is not, even if the doctor’s training protocols were not exactly robust. We doubt that private doctors have market power to impose training protocols on government facilities, and liability would deter doctors from working with those facilities at all.
  • The Clean Water Act prohibits the discharge of pollutants into “navigable waters.” In response to rulings from the U.S. Supreme Court holding that “navigable waters” excludes wetlands that aren’t anywhere near actual navigable waters, the EPA and the Army Corps of Engineers adopt regulations consistent with that holding. Colorado sues, and a district court preliminarily enjoins the new regulations. Tenth Circuit: Which it should not have done. Colorado failed to demonstrate that it would be irreparably harmed without an injunction, which is sort of important.


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