Wedding officiants, teaser profiles, and administrative animals.

John Ross · September 29, 2023

Happy Friday! IJ is going back to the big show! Read all about it. Or listen to a past episode of the Short Circuit podcast about the case.

And speaking of the Supreme Court: For the latest edition of the Short Circuit podcast, we head over to Stanford Law School to visit with some friends at the Supreme Court Litigation Clinic there.

  • Puerto Rican drug trafficker is arrested, and the ensuing search turns up a 9mm pistol. Whoa! It’s been modified to fire fully automatic—it’s a machine gun! The trafficker is charged with possession of a machine gun in furtherance of a drug crime, which carries a 30-year sentence. He objects that he had no idea the pistol was modified—he was holding it temporarily for his boss—and asks for a jury instruction requiring the gov’t prove he knew the pistol had been modified. The district court denies the instruction, and he’s convicted. First Circuit: Vacated. “The contention that an injury can amount to a crime only when inflicted by intention is … as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”
  • In which the Second Circuit determines that Connecticut’s state-law claims against ExxonMobil for unfair trade practices—allegedly misleading consumers about climate change—belong in state court.
  • Man who fled war in Bosnia at age six wrecks his car on the highway and is convicted of DUI. Deport him? BIA: Yup, he was high on pot, which is federally illegal. Third Circuit: Reversed! It’s the elements of his state DUI conviction, not the underlying conduct, that trigger deportation. And the elements of his conviction did not identify a specific drug.
  • The National Labor Relations Board is an interesting administrative animal. It is an inferior tribunal to federal courts of appeals but follows precedent that it itself has made and that has been expressly disagreed with by … federal courts of appeals. This dynamic was at play in this Third Circuit opinion about a Pittsburgh newspaper that discontinued some of its paper editions and consequently laid off some of its unionized “paperhandlers.”
  • Parties to a dispute about dredging at a Lake Charles, La. port agree to have their case heard by a magistrate judge. After a 20-day bench trial, the magistrate sides with the plaintiff, awarding them more than $124 mil. Uh oh! Nobody told the defendant that plaintiff’s counsel was a groomsman at the magistrate’s wedding, or that the magistrate had officiated the wedding of one of plaintiff’s counsel’s daughters three months before the lawsuit was filed. Fifth Circuit: Which means defendant’s consent to magistrate-judge referral may have been constitutionally insufficient. Remanded for discovery into how close the judge and plaintiff’s counsel really were.
  • Berrien, Mich. officers take incoherent, agitated man—who is accused of damaging property—to ground. He dies of asphyxia. Sixth Circuit (unpublished, over a dissent): A jury should decide if the officers used excessive force after he was on the ground.
  • Illinois has a points-based system for scoring applicants for licenses to operate cannabis dispensaries, but there are far more applicants with perfect scores than there are licenses, so the state holds a lottery limited to applicants with perfect scores. But the only way to get a perfect score is to be an Illinois resident, severely harshing the vibes of two out-of-state cannabis entrepreneurs. They sue, alleging a violation of the dormant Commerce Clause. District Court: And they’re basically right, but they waited to sue until two years after the application deadline and eight months after the lottery results were announced; it would be inequitable to unwind the results now. Seventh Circuit: Quite right. And since Illinois has now removed the bonus for state residents, plaintiffs’ other claims also fail.
  • In which the Seventh Circuit savages a New York-barred lawyer who has spent much of his career getting into trouble in Illinois. In honor of the Seventh Circuit’s fierce aversion to advocates’ mentioning the names of authoring judges when discussing judicial opinions, we will refrain from naming the authoring judge. (But yes it’s exactly who you think it is.)
  • ZoomInfo is an online directory of professionals and their employment information. If you look someone up on their website, you’ll see a “teaser profile,” providing the person’s name, employer, and job title, along with a subscription link to view the full profile. A California labor organizer files a class action, alleging that ZoomInfo violated her (and everyone else’s) right of publicity by using her name and likeness to promote its product without permission. ZoomInfo seeks dismissal under California’s anti-SLAPP law, but is denied. Ninth Circuit: As it should have been. Concurrence 1: We shouldn’t even hear interlocutory appeals of anti-SLAPP denials! Concurrence 2: I also think that!
  • University of Arizona football player—whom the university knew repeatedly and violently assaulted two female undergraduates the previous year—repeatedly and violently assaults female student in off-campus house he shares with other players. She sues under Title IX. Ninth Circuit (en banc): Her case can go forward. She’s sufficiently alleged the university had substantial control over the context in which the assault occurred, that the university knew about it, and that it was deliberately indifferent. Multiple dissents: She didn’t, and we’re really stretching Title IX here.
  • Huntsville, Ala. officers: When we told man—who we suspected of messing with a car that wasn’t his—to produce ID, he jumped up and waved his hands in a physically threatening manner! Which gave us arguable probable cause to arrest. Eleventh Circuit: The four separate video cameras that captured this moment show nothing of the sort. No qualified immunity.
  • After TASER International, Inc. successfully sued Phazzer Electronics for various violations of its intellectual property, the owners of Phazzer, in plain violation of the court’s injunction, just wouldn’t stop selling stun guns! Eventually, a federal court holds them and a former Phazzer employee in criminal contempt. The former employee challenges her conviction on the grounds that, as a former employee, she isn’t bound by the injunctions. Eleventh Circuit: And she successfully dodges this TASER. She might possibly have been subject to criminal contempt for aiding and abetting someone still bound by the injunction, but the gov’t didn’t present that theory.
  • And in en banc news, the Fifth Circuit will reconsider its opinion holding that Mississippi’s felon-disenfranchisement law violates the Eighth Amendment’s prohibition on cruel and unusual punishment.
  • And in amicus brief news, IJ is urging the Seventh Circuit to take probable cause seriously in the context of warrantless roadside automobile searches, including here, where an Urbana, Ill. police officer searched a car based on the alleged smell of “a little bit of weed,” ultimately turning up an illegal handgun. Since weed and hemp are both legal in Illinois, this smells more like the sort of general searches that led the Founders to enact the Fourth Amendment.

Friends, as you may know from this very newsletter, we at IJ have sued the FBI twice already over the same March 2021 seizure: taking money and other valuables owned by people who are not suspected of any crime from hundreds safe-deposit boxes in Los Angeles. (Instead, it was only the business that owned the vaults that was suspected of wrongdoing.) Well, hold onto your hats, because we have just now filed a THIRD separate lawsuit arising from a third distinct outrage: The FBI has lost some of the valuables it seized, including a whopping $123k worth of gold coins from one client. Just up and vanished! And while the FBI so far maintains they haven’t done anything wrong, we maintain that … they really, really have. Click here to learn more.