An overview of recent Federal Court decisions

Please take advantage of the latest edition of short circuita weekly report written by a group of people at the Institute for Justice.

New certificate petition: Earlier this year, the Second Circuit granted absolute immunity to prosecutors in Suffolk County, New York, who brought baseless charges in favor of a company seeking to retaliate against its former employees employees and their attorney. But my friends, a state appeals court ruled that the prosecution violated the First and Thirteenth Amendments — and was therefore outside the bounds of prosecutors’ authority. And at common law, officials acting outside their authority would never have enjoyed immunity.

• A computer scientist and inventor challenge provisions of the Digital Millennium Copyright Act that prohibit circumvention of computer code used to block unauthorized access to copyrighted material. The first wants to publish a book on the subject for research purposes, while the second wants to sell a device containing code that can bypass security measures. Valid First Amendment claims? DC circuit: The government has made it clear that the law does not apply to the book, and there is no problem regulating the device, because the government is targeting the function of the code, not what it communicates.
• Allegation: The deceased hotelier’s children from his first marriage are taking out large loans for businesses in which they have inherited a large stake. The loans are secured by the estate, in which the children of his second marriage – “the Jamestown clan” – have a larger share. Jamestown Clan Complainant: What is a RICO! Now we drink your milkshake. First round: Point of fact, these claims belong in federal court. Unclassified case.
• A New York man leads a secret society of all women (other than himself), structured as a pyramid of “masters” and “slaves” – the latter dropping blackmail material on themselves to join. He is convicted of sex trafficking for the sexual favors he received, but says he did not commit what the law calls a “commercial sex act” because no one made a profit. Second Circuit: Obtaining “everything of value” satisfies the status, and this includes privileged positions and free work that “mastery” in the regime received. Convictions confirmed.
• Allegation: A Honduran immigrant, who was deported in 2004 as a child and then granted deferred status in 2013, travels regularly to Louisville, Kentucky. The ICE facility for posting bail for inmates and is on a first name basis with numerous officers until…they arrest it! During her eight days in detention, she was transferred to eight or nine facilities in three states and deprived of food and sleep. Sixth Circuit (on a dissent): And some of his claims shouldn’t have been dismissed.
• Selling in the same spot on the sidewalk for years can create a lot of things — loyal customers, a sense of belonging, a throbbing pain in your lower back — but it doesn’t, says the Sixth circuitcreate a property right there.
• Catholic Medical Organizations: The Affordable Care Act (and its regulations) require us to perform and provide gender transition procedures or face criminal and civil penalties and loss of federal funding. Which violates the First Amendment. Feds: Yes, but maybe the law doesn’t require it, and maybe we wouldn’t enforce it if it did. Eighth Circuit: Permanent injunction confirmed.
• Do you know the Hollywood Foreign Press Association? It’s the club of journalists who vote for the Golden Globes. Well, apparently it’s hard to get in. Like, really difficult. Ninth circuit: But no matter how difficult it is to join, its exclusivity is not a violation of antitrust laws.
• In protest against the fossil fuel industry, a Bellingham, Washington woman sabotages the rail line by installing a ‘shunt’, a device that falsely signals the presence of another train on the tracks, in an effort to stop an incoming train carrying crude oil. She is found guilty of “violence against rail carriers” and receives an enhanced sentence for “recklessly” endangering the safety of a public transport vehicle. Accused: But I thought what I had done was perfectly safe! Ninth circuit: Well, you’re an idiot.
• A non-citizen is twice convicted of child endangerment – drunk driving with a child in the car. Deport him? Seated en banc, and over the course of 169 pages, a divided Ninth Circuit say yes; California’s Child Endangerment Act comes close enough to Congress’ definition of the expellable offense of child abuse, neglect, or abandonment.
• Ninth Circuit: Everyone knows that taking clause claims can be resolved in federal court without the plaintiffs first arguing in state court. But what this opinion presupposes is – perhaps this one cannot?
• An armed robber on the run from Salt Lake City police crashes into an innocent tailor’s shop. Bullets are flying (196 bullets in 20 seconds by police alone, to be precise), the store is badly damaged, the thief diesand the trader is psychologically traumatized. Tenth circuit: Which certainly stinks of the tailor, but the police, who had no intention of hurting him, did not violate his rights.
• Rather than stopping when a Bryan County, Oklahoma sheriff activated his headlights for a taillight violation on an empty rural road, the motorcyclist speeds up. She is traveling at 90 mph when another officer veers in front of her, causing an accident. (She lives.) Excessive force? Tenth circuit (unpublished): Qualified Immunity. Dissent: It was a misdemeanor of little or no danger to others when the officer used deadly force – certainly enough to get a trial.
• The last time we spoke of the word “and”, the Fifth circuit stated that it meant “or” (in the context of the “safety valve” provision of the First Step Act). The Eleventh Circuit (en banc) now rules “and”, in fact, means “and”. There are dissenting judges who disagree. And a concurring judge describes that disagreement as “the shooting at the Eleventh Circuit Corral [which] …produces no clear winner once the smoke clears.”
• And in actuality in bench, the DC circuit (on a dissent) will not reconsider his decision that an agency must go through the development of notice and comment rules when repealing a rule that was enacted under a previous administration but had not become final when the new administration takes office . (The request was made by a trade association which tried to intervene after the government said it would not request en banc review. The court refused the intervention, preventing en banc review. )
• And in addition to bench news, the Fifth circuit won’t reconsider her decision that it did not violate the Establishment Clause for a Texas justice of the peace – a former Pentecostal preacher – to open court with a prayer delivered by a local religious leader. Three judges disagreed with the denial, arguing that there was enough evidence the judge was biased against litigants who did not participate in the prayer for the matter to go to a jury.
• And in additional en banc news, the Sixth circuit will reconsider her decision grant habeas relief to a man sentenced to death for the rape and murder of a 9-year-old girl. The initial panel found that the defense attorney’s failure to sufficiently challenge the forensic evidence of the rape merited a new conviction, while Judge White had previously dissented on the grounds that the rape conviction was only one of four aggravating factors that the jury had found merited the death penalty and therefore there was no likelihood that an effective lawyer could have reached a different verdict.

Last year, an officer in Fort Bend, Texas, arrested Justin Pulliam in retaliation for exercising his First Amendment right to record and criticize police. When arrested Justin was on private property with the permission of the landlord and away from the active scene, a mental health call (a priority for Justin, as people in emotional distress are particularly at risk of being injured by the police). Justin spent several hours in jail, was strip searched and personally reprimanded by the sheriff for refusing to speak without an attorney present – the culmination of months of harassment by the department. at the request of the sheriff. Click here for more on IJ’s latest costume.