I'm going to try to do a weekly Circuit Court Roundup covering the most notable decisions released in the US Circuit Courts or Appeals each week. Whether or not this actually happens depends on how much time I actually have - sometimes (like today) I don't have much, but decide to use this review as a way to relax (yeah, sometimes I do extra work in order to relax ... I don't understand how that works either). In any case, here is the review for the week of August 16 - 20. My aim is going to be to post these reviews on Sunday or Monday nights.
DC Circuit - Cause of Action Institute v. OMB (20-5006) - Issued 8/20/2021
The Cause of Action Institute - presumably on a "we gotcha" fishing expedition, sought records under the Freedom of Information Act (FOIA) from the OMB and the Department of Agriculture for access to the internet browsing histories of several people in charge of those agencies. The court ruled that FOIA did not require the release of the browser records because FOIA does not require disclosure of records that are not "agency records," and whether or not specific records meet the definition in the FOIA statute depends on a test that includes how much control the agency intended to keep over the records. Here, the agencies had not altered the default 90-day history deletion record in Chrome and adjusted the Internet Explorer default only from 20 days to 45 days. No effort was made to retain the records beyond that, and no other steps were taken to archive browser histories. As a result, the court said there was no intent to document the browser histories for the record, and that the records were therefore outside the reach of FOIA.
1st Circuit - Associacion Hospital del Maestro v. Becerra (19-1475) - Issued 8/18/2021
Hospitals in the US are in most instances required to provide care to patients who arrive in their emergency rooms regardless of the patient's ability to pay. Understandably, for hospitals who receive a disproportionate number of these patients it can become a challenge to survive economically. As a result, Congress has authorized reimbursement funding for hospitals that meet certain requirements. Eligibility for these payments was eventually extended to Puerto Rico after initially being available only to states, but part of the formula for determining payments involves the number of patients seeking treatment who receive Supplemental Security income (SSI) - something which US citizens from Puerto Rico are not eligible for. An association of hospitals sued the Department of Health and Human Services to try to get access to more reimbursement funding, arguing that the formula was deficient. However, the Court ruled that just because the formula was unfair to Puerto Rico hospitals doesn't mean recovery was possible - Congress acted within its bounds in treating Puerto Rico differently under the formula for reimbursement, and there was no indication in the law that anything else was intended.
3rd Circuit - Lozano v. New Jersey (20-2476) - Issued 8/16/2021
This case involved a claim of qualified immunity by a police officer against claims of false arrest, false imprisonment, and malicious prosecution made by a veteran who was arrested after refusing a breathalyzer in the parking lot of a convenience store. The officer in question was not the arresting officer, but was present at the scene and ultimately transported the arrestee from the convenience store to the police station. The District Court found that the policeman lacked qualified immunity, arguing that he knowingly violated the arrestees rights. The Court of Appeals, however, determined that the officer in question was not in a position to observe any violations of rights and acted at all times in good faith. Additionally, his actions transporting the arrestee were not part of the arrest itself, but merely administrative actions incident to the arrest that was carried out by a different officer. As a result, qualified immunity applies.
3rd Circuit - Drummond v. Robinson Township (20-1722) - Issued 8/17/2021
Following the Supreme Court's decision in Heller v. District of Columbia, it was established that individuals possessed a Second Amendment right to bear arms. Heller made clear, however, that there were limitations on that right but did not attempt to enumerate them all. Instead, it left to the various courts the responsibility of analyzing restrictions as they came up. This case involved a couple of attempts to limit the practices of a gun range through modification of zoning rules. One of the new rules limited the types of rifles that could be utilized on the property, and the other changed the classification of Sportsman's Clubs to require a non-profit purpose (such as the protection of waterfowl or other wildlife). The Court analyzed the historical nature of the types of regulation at issue and determined that they were not historically practiced and also interfered with gun rights - as a result, under the Heller standard, the Court ruled that the zoning rules couldn't be justified with the available information and remanded the case for further discovery and for determination of whether a preliminary injunction against the zoning rules should be issued.
3rd Circuit - Dianoia's Eatery v. Motorists Mutual Insurance Company (20-2954) - Issued 8/18/2021
As a result of COVID, many restaurants lost significant money over the past year and a half. Understandably, this has led to quite a few claims for losses against insurance policies - and quite often the insurers argue they don't owe anything because of how the policies are written. This ruling combined three cases in which a restaurant sued an insurance company in a federal District Court claiming diversity jurisdiction, only to have the federal court decline to take the case under the provisions of the Declaratory Judgement Act, which allows federal courts to decline to take jurisdiction over a case. There are a set of 8 factors that courts should consider making this decision, and the decision on whether to take a case or not is subject to an abuse of discretion standard. Here, the appellate court found that the courts below had not sufficiently justified their decisions to decline jurisdiction under the DJA, and remanded the case for further development of the record.
4th Circuit - Sardis v. Overhead Door Corporation (20-1411) - Issued 8/20/2021
Following the workplace death of her husband, Andrea Sardis filed wrongful death suits against the Overhead Door Corporation. The only relevant evidence in favor of her position came in the form of expert testimony offered by two witnesses who failed to offer reliable or relevant evidence. The trial court determined that the only way to counter the evidence was through cross-examination and allowed the expert testimony to be presented, but the Court of Appeals found this was an abuse of discretion, as Federal Rule of Evidence 702 requires trial courts to act as gatekeepers preventing dubious experts from being presented at trial. The only reason for the plaintiff's suit succeeding at trial was the abuse of discretion of the trial court in allowing the bad expert testimony, so the result was reversed.
5th Circuit - Texas v. Biden (21-10806) - Issued 8/19/2021
During the Trump administration, the Department of Homeland Security implemented a so-called "Remain in Mexico" provision requiring certain aliens to remain in or return to Mexico while questions about their admissibility were resolved. Following the 2020 election, the Biden administration reversed course and stopped following the rule. Texas and Missouri challenged the rule change, arguing that the new administration's policy violated the Immigration and Nationality Act and that the change had not followed the Administrative Procedure Act in any case. The District Court concurrred and found against the administration. The administration is now seeking a stay of the order under the case can be fully litigated on appeal. The appellate court here denied the stay, finding that there was plentiful evidence that the administration had indeed violated the APA in promulgating the new rule, that the INA was being ignored, and that there was no irreparable damage to the government's position if the stay issued, but that the states involved would suffer damage in the interim.
5th Circuit - Whole Women's Health v. Paxton (17-51060) - Issued 8/18/2021
The Texas legislature passed a bill known as SB8 in 2017 that purported to ban the abortion technique known as "live dismemberment" dilation & extraction. A host of women's health clinics sued the state, arguing that SB8 violated the Constitutional abortion protections most clearly articulated in the Supreme Court's decision in Planned Parenthood v. Casey by placing an undue burden on a women exercising her right to seek and obtain an abortion. The lower court agreed, finding that banning of this procedure would severly restrict a woman's ability to secure an abortion. The appellate court reversed the decision and issued its own ruling that found the lower court to have committed 'numerous legal and factual errors.' Primarily since other types of dilation & extraction abortion are available, the court ruled that banning of one particular type of dilation & extraction procedure was not enough to rise to the level of a constitutional violation.
6th Circuit - United States v. Phillips (20-1051) - Issued 8/17/2021
This is not a particularly interesting case, but it is a potential pick for SCOTUS review because it presents a circuit split. The question is whether federal districut courts have jurisdiction over motions to waive accumulated interest on restitution orders. The court dismissed the motion on the grounds that it lacked subject-matter jurisdiction. The court, supported by the government on appeal, argued that there is a list of ways in which a final restitution order may be modified and that does not include the type of motion for the waiver of accumulated interest sought here. However, the statute discussing such modifications itself does not purport to be so limited. The legislative history is unhelpful, and the courts have split on the question. The court here decided that the plain language of the statute best supported the ability to modify the order related to the requirement to pay interest as a result of the mutable circumstances confronting the defendant, and so overturned the lower courts jurisdictional dismissal, reinstating the cause of action.
7th Circuit - Carter v. Buesgen (20-3140) - Issued 8/18/2021
I'm including this case because it's a fairly rare example of a prisoner winning against a system that has utterly failed him. Carter is an inmate who was convicted after a prosecutor failed to live up to the terms of a plea bargain, turning away from the plea agreement at the last minute and lamenting the plea agreement in front of the judge, resulting in the judge departing from the agreed plea and sentencing Carter to an extra three years. Carter then sought relief in the Wisconsin state courts, as he is required to do, only to encounter a series of delays - 10 months to get his trial transcripts to allow the appeal in the first place (when only 2 months are allowed by law), repeated requests by his public defender to delay trial because the public defender was busy - requests which were repeatedly approved by the court without comment. It has now been four years, and Carter would be eligible for parole in just 6 months under the terms of his original plea. The District Court found a lack of jurisdiction because Carter had failed to exhaust all of his remedies in State Court, but the appellate court pointed out that he is trying to - and the court hasn't let it happen. The repeated failure of the Wisconsin courts to give Carter his day in court have opened the door to federal court, and the appellate court remanded to the district court with instructions to proceed with giving Carter the day in court that Wisconsin has denied him - finally.
7th Circuit - Protect Our Parks v. Buttigieg (21-2449) - Issued 8/19/2021
This case represented a challenge from some residents of Chicago to the building of President Obama's Presidential Library in Chicago's Jackson Park. The city had determined that the building of the library in that location would revitalize the neighborhood and ultimately be a boon to the area - the plaintiffs, on the other hand, felt that the construction would have negative environmental consequences and that the library should be built elsewhere. They sought an injunction forcing the various federal agencies involved in the process of conducting environmental reviews, to conduct a wider analysis and ultimately to deny the approval. The Court here, however, determined that the agency had acted appropriately and followed the necessary standards for issuing its approvals, thus authorizing the construction to continue.
8th Circuit - United States v. Barnes (20-2583) - Issued 8/20/2021
The police in this case sought a warrant for the defendant's geolocation data from his cell phone and from a Gmail account, as part of a drug trafficking investigation. The defendant asserted that the information was unrelated to the underlying crime (or at least had not been sufficiently argued for in the warrants sought by the officers) and that the evidence therefore should be considered to have been illegally gathered, and so thrown out. The Court relied on United States v. Leon in finding that the officers had a reasonable, good-faith belief that their warrants authorized the use they made of geolocation data to determine the defendant's movements in relation to the known location of drugs, and that there was therefore no justification for throwing out the evidence (and ultimately the convictions) through operation of the exclusionary rule.
9th Circuit - Quintero Perez v. United States (17-56610) - Issued 8/16/2021
This case involves the shooting of a Mexican national by a Border Patrol agent while the Mexican national was on the border fence trying to assist a fellow Mexican national who was being arrested by the Border Patrol after an unsuccessful effort to enter the United States. As the fence is on United States territory, the shooting occurred entirely within the United States, although the victim's body ended up lying across the international border, half in the United States and half in Mexico when he died. The victim's family attempted to sue the United States under several theories, including the Alien Tort Statute and the Federal Tort Claims Act. First, under the ATS, the 9th Circuit found that the existence of the ATS itself was not an express waiver of sovereign immunity and that an underlying claim would need to be available for the ATS to apply - that was not the case here. The plaintiff attempted to rely on the notion of jus cogens international standards upheld by all nations - but the court did not accept the argument and found that an express waiver of immunity was still necessary. While it may have been possible for the plaintiff to pursue a claim under the FTCA, that claim was time barred. The plaintiff had failed to pursue that claim earlier due to a mistaken understanding of the law in the 9th Circuit, but a mistake of law on the part of the plaintiff was not grounds to toll a limitations period. As a result, the FTCA claim was not made in a timely fashion and was foreclosed. The court lamented not being able to remedy what it saw as a wrong, but found this case to be outside what it could remedy under applicable law.
9th Circuit - Herring Networks v. Maddow (20-55579) - Issued 8/17/2021
During a 2019 segment of the Rachel Maddow show, the host made a comment about the One America Network and one of its employees, relying on some reporting from the Daily Beast suggesting that an OAN employee was also being employed by a Russian propaganda outlet called Sputnik. The corporation that owns OAN sued Maddow for defamation, and Maddow defended the suit under California's "anti-SLAPP" provision. Anti-SLAPP laws are designed to prevent lawsuits from being used to intimidate people against using their protected First Amendment rights. The Court here upheld the district court's ruling dismissing the lawsuit against Maddow, as Maddow's statements were all protected First Amendment speech, with nothing that could be categorized as defamation.
9th Circuit - Maner v. Dignity Health (18-17159) - Issued 8/20/2021
The question presented in this case is whether a supervisor's favoring of their romantic interest over other employees constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. The appellate court upheld the district court's dismissal of the suit. The standard test for whether sex discrimination is occurring is to reverse the sex of the individual involved in the claim and determine if that would matter to the result. In this case, it would have no bearing - the issue is the preferential treatment being given to a supervisor's "Paramour preference," which may be unfair or even discriminatory but does not qualify as sex discrimination for Title VII purposes.
9th Circuit - Plancarte Sauceda v. Garland (19-73312) - Issued 8/20/2021
This case involved a review of a denial by the Board of Immigration Appeals of an application for asylum. One of the ways that an applicant can demonstrate that they qualify for asylum is by demonstrating membership in a social group that faces particular danger. The applicant here argued that the social group of which is a member is nurses - and the BIA argued that because this is not an immutable characteristic, it was insufficient. The 9th Circuit ruled that this was not the case - the threat to the applicant was from a drug cartel, and the cartel was especially interested in the knowledge that the applicant had as a nurse. They intended to threaten and intimidate the applicant into assisting the cartel - under penalty of death for defying them - and the applicant's nursing knowledge is in fact immutable. As a result, the 9th Circuit remanded to the BIA with instructions to consider the social group prong met and to review the evidence to determine if the applicant's case met the other requirements for asylum to be approved.
10th Circuit - Animal Legal Defense Fund v. Kelly (20-3082) - Issued 8/19/2021
Kansas passed a law attempting to prevent people from disrupting feedlot and other agricultural enterprises by restricting entering those locations and taking various actions - such as recording, exercising control over, or trespassing upon one of these facilities for purposes of damaging the enterprise. The ALDF wants to get people hired at these facilities in order to place whistleblowers inside of them, but didn't want to run afoul of the law. The ALDF argued that its statements showing abuses and other negative practices at the facilities would be made for the purpose of harming the enterprise, and since deception would have been used to gain employment, the ALDF seeks to invalidate the statute to prevent it from interfering with their plans. The district court below found that various provisions of the Kansas law were unconstitutional restraints on speech. The appellate court affirmed, finding that the Kansas law made no attempt whatsoever to determine whether it interfered with any protected speech and was therefore clearly unconstitutional.
10th Circuit - St. George v. City of Lakewood (20-1259) - Issued 8/20/2021
This is a bizarre case involving a police shooting. After being shot in the leg and engaging in a gun fight with police officers during their investigation of him on allegations from an escort of sexual assault and attempted murder, the plaintiff sought to bring an excessive use of force argument against the policeman who shot him. The facts are very strange and included the police calling the plaintiff 6 times in 15 minutes to try to get him to come outside. By the end of the 15 minutes the plaintiff had armed himself after coming to believe that associates of the escort with whom he had previously had a disagreement earlier that evening. The police did not reveal themselves or otherwise make their presence known despite these phone calls saying that they were there, contributing to the court's decision that the plaintiff could not have known he was dealing with the police at the time the shoot out occurred. The court sent the case back to the district court to determine whether qualified immunity still applies, finding that it was not clear that the plaintiff had acted unreasonably in light of the circumstances.
DC Circuit - Cause of Action Institute v. OMB (20-5006) - Issued 8/20/2021
The Cause of Action Institute - presumably on a "we gotcha" fishing expedition, sought records under the Freedom of Information Act (FOIA) from the OMB and the Department of Agriculture for access to the internet browsing histories of several people in charge of those agencies. The court ruled that FOIA did not require the release of the browser records because FOIA does not require disclosure of records that are not "agency records," and whether or not specific records meet the definition in the FOIA statute depends on a test that includes how much control the agency intended to keep over the records. Here, the agencies had not altered the default 90-day history deletion record in Chrome and adjusted the Internet Explorer default only from 20 days to 45 days. No effort was made to retain the records beyond that, and no other steps were taken to archive browser histories. As a result, the court said there was no intent to document the browser histories for the record, and that the records were therefore outside the reach of FOIA.
1st Circuit - Associacion Hospital del Maestro v. Becerra (19-1475) - Issued 8/18/2021
Hospitals in the US are in most instances required to provide care to patients who arrive in their emergency rooms regardless of the patient's ability to pay. Understandably, for hospitals who receive a disproportionate number of these patients it can become a challenge to survive economically. As a result, Congress has authorized reimbursement funding for hospitals that meet certain requirements. Eligibility for these payments was eventually extended to Puerto Rico after initially being available only to states, but part of the formula for determining payments involves the number of patients seeking treatment who receive Supplemental Security income (SSI) - something which US citizens from Puerto Rico are not eligible for. An association of hospitals sued the Department of Health and Human Services to try to get access to more reimbursement funding, arguing that the formula was deficient. However, the Court ruled that just because the formula was unfair to Puerto Rico hospitals doesn't mean recovery was possible - Congress acted within its bounds in treating Puerto Rico differently under the formula for reimbursement, and there was no indication in the law that anything else was intended.
3rd Circuit - Lozano v. New Jersey (20-2476) - Issued 8/16/2021
This case involved a claim of qualified immunity by a police officer against claims of false arrest, false imprisonment, and malicious prosecution made by a veteran who was arrested after refusing a breathalyzer in the parking lot of a convenience store. The officer in question was not the arresting officer, but was present at the scene and ultimately transported the arrestee from the convenience store to the police station. The District Court found that the policeman lacked qualified immunity, arguing that he knowingly violated the arrestees rights. The Court of Appeals, however, determined that the officer in question was not in a position to observe any violations of rights and acted at all times in good faith. Additionally, his actions transporting the arrestee were not part of the arrest itself, but merely administrative actions incident to the arrest that was carried out by a different officer. As a result, qualified immunity applies.
3rd Circuit - Drummond v. Robinson Township (20-1722) - Issued 8/17/2021
Following the Supreme Court's decision in Heller v. District of Columbia, it was established that individuals possessed a Second Amendment right to bear arms. Heller made clear, however, that there were limitations on that right but did not attempt to enumerate them all. Instead, it left to the various courts the responsibility of analyzing restrictions as they came up. This case involved a couple of attempts to limit the practices of a gun range through modification of zoning rules. One of the new rules limited the types of rifles that could be utilized on the property, and the other changed the classification of Sportsman's Clubs to require a non-profit purpose (such as the protection of waterfowl or other wildlife). The Court analyzed the historical nature of the types of regulation at issue and determined that they were not historically practiced and also interfered with gun rights - as a result, under the Heller standard, the Court ruled that the zoning rules couldn't be justified with the available information and remanded the case for further discovery and for determination of whether a preliminary injunction against the zoning rules should be issued.
3rd Circuit - Dianoia's Eatery v. Motorists Mutual Insurance Company (20-2954) - Issued 8/18/2021
As a result of COVID, many restaurants lost significant money over the past year and a half. Understandably, this has led to quite a few claims for losses against insurance policies - and quite often the insurers argue they don't owe anything because of how the policies are written. This ruling combined three cases in which a restaurant sued an insurance company in a federal District Court claiming diversity jurisdiction, only to have the federal court decline to take the case under the provisions of the Declaratory Judgement Act, which allows federal courts to decline to take jurisdiction over a case. There are a set of 8 factors that courts should consider making this decision, and the decision on whether to take a case or not is subject to an abuse of discretion standard. Here, the appellate court found that the courts below had not sufficiently justified their decisions to decline jurisdiction under the DJA, and remanded the case for further development of the record.
4th Circuit - Sardis v. Overhead Door Corporation (20-1411) - Issued 8/20/2021
Following the workplace death of her husband, Andrea Sardis filed wrongful death suits against the Overhead Door Corporation. The only relevant evidence in favor of her position came in the form of expert testimony offered by two witnesses who failed to offer reliable or relevant evidence. The trial court determined that the only way to counter the evidence was through cross-examination and allowed the expert testimony to be presented, but the Court of Appeals found this was an abuse of discretion, as Federal Rule of Evidence 702 requires trial courts to act as gatekeepers preventing dubious experts from being presented at trial. The only reason for the plaintiff's suit succeeding at trial was the abuse of discretion of the trial court in allowing the bad expert testimony, so the result was reversed.
5th Circuit - Texas v. Biden (21-10806) - Issued 8/19/2021
During the Trump administration, the Department of Homeland Security implemented a so-called "Remain in Mexico" provision requiring certain aliens to remain in or return to Mexico while questions about their admissibility were resolved. Following the 2020 election, the Biden administration reversed course and stopped following the rule. Texas and Missouri challenged the rule change, arguing that the new administration's policy violated the Immigration and Nationality Act and that the change had not followed the Administrative Procedure Act in any case. The District Court concurrred and found against the administration. The administration is now seeking a stay of the order under the case can be fully litigated on appeal. The appellate court here denied the stay, finding that there was plentiful evidence that the administration had indeed violated the APA in promulgating the new rule, that the INA was being ignored, and that there was no irreparable damage to the government's position if the stay issued, but that the states involved would suffer damage in the interim.
5th Circuit - Whole Women's Health v. Paxton (17-51060) - Issued 8/18/2021
The Texas legislature passed a bill known as SB8 in 2017 that purported to ban the abortion technique known as "live dismemberment" dilation & extraction. A host of women's health clinics sued the state, arguing that SB8 violated the Constitutional abortion protections most clearly articulated in the Supreme Court's decision in Planned Parenthood v. Casey by placing an undue burden on a women exercising her right to seek and obtain an abortion. The lower court agreed, finding that banning of this procedure would severly restrict a woman's ability to secure an abortion. The appellate court reversed the decision and issued its own ruling that found the lower court to have committed 'numerous legal and factual errors.' Primarily since other types of dilation & extraction abortion are available, the court ruled that banning of one particular type of dilation & extraction procedure was not enough to rise to the level of a constitutional violation.
6th Circuit - United States v. Phillips (20-1051) - Issued 8/17/2021
This is not a particularly interesting case, but it is a potential pick for SCOTUS review because it presents a circuit split. The question is whether federal districut courts have jurisdiction over motions to waive accumulated interest on restitution orders. The court dismissed the motion on the grounds that it lacked subject-matter jurisdiction. The court, supported by the government on appeal, argued that there is a list of ways in which a final restitution order may be modified and that does not include the type of motion for the waiver of accumulated interest sought here. However, the statute discussing such modifications itself does not purport to be so limited. The legislative history is unhelpful, and the courts have split on the question. The court here decided that the plain language of the statute best supported the ability to modify the order related to the requirement to pay interest as a result of the mutable circumstances confronting the defendant, and so overturned the lower courts jurisdictional dismissal, reinstating the cause of action.
7th Circuit - Carter v. Buesgen (20-3140) - Issued 8/18/2021
I'm including this case because it's a fairly rare example of a prisoner winning against a system that has utterly failed him. Carter is an inmate who was convicted after a prosecutor failed to live up to the terms of a plea bargain, turning away from the plea agreement at the last minute and lamenting the plea agreement in front of the judge, resulting in the judge departing from the agreed plea and sentencing Carter to an extra three years. Carter then sought relief in the Wisconsin state courts, as he is required to do, only to encounter a series of delays - 10 months to get his trial transcripts to allow the appeal in the first place (when only 2 months are allowed by law), repeated requests by his public defender to delay trial because the public defender was busy - requests which were repeatedly approved by the court without comment. It has now been four years, and Carter would be eligible for parole in just 6 months under the terms of his original plea. The District Court found a lack of jurisdiction because Carter had failed to exhaust all of his remedies in State Court, but the appellate court pointed out that he is trying to - and the court hasn't let it happen. The repeated failure of the Wisconsin courts to give Carter his day in court have opened the door to federal court, and the appellate court remanded to the district court with instructions to proceed with giving Carter the day in court that Wisconsin has denied him - finally.
7th Circuit - Protect Our Parks v. Buttigieg (21-2449) - Issued 8/19/2021
This case represented a challenge from some residents of Chicago to the building of President Obama's Presidential Library in Chicago's Jackson Park. The city had determined that the building of the library in that location would revitalize the neighborhood and ultimately be a boon to the area - the plaintiffs, on the other hand, felt that the construction would have negative environmental consequences and that the library should be built elsewhere. They sought an injunction forcing the various federal agencies involved in the process of conducting environmental reviews, to conduct a wider analysis and ultimately to deny the approval. The Court here, however, determined that the agency had acted appropriately and followed the necessary standards for issuing its approvals, thus authorizing the construction to continue.
8th Circuit - United States v. Barnes (20-2583) - Issued 8/20/2021
The police in this case sought a warrant for the defendant's geolocation data from his cell phone and from a Gmail account, as part of a drug trafficking investigation. The defendant asserted that the information was unrelated to the underlying crime (or at least had not been sufficiently argued for in the warrants sought by the officers) and that the evidence therefore should be considered to have been illegally gathered, and so thrown out. The Court relied on United States v. Leon in finding that the officers had a reasonable, good-faith belief that their warrants authorized the use they made of geolocation data to determine the defendant's movements in relation to the known location of drugs, and that there was therefore no justification for throwing out the evidence (and ultimately the convictions) through operation of the exclusionary rule.
9th Circuit - Quintero Perez v. United States (17-56610) - Issued 8/16/2021
This case involves the shooting of a Mexican national by a Border Patrol agent while the Mexican national was on the border fence trying to assist a fellow Mexican national who was being arrested by the Border Patrol after an unsuccessful effort to enter the United States. As the fence is on United States territory, the shooting occurred entirely within the United States, although the victim's body ended up lying across the international border, half in the United States and half in Mexico when he died. The victim's family attempted to sue the United States under several theories, including the Alien Tort Statute and the Federal Tort Claims Act. First, under the ATS, the 9th Circuit found that the existence of the ATS itself was not an express waiver of sovereign immunity and that an underlying claim would need to be available for the ATS to apply - that was not the case here. The plaintiff attempted to rely on the notion of jus cogens international standards upheld by all nations - but the court did not accept the argument and found that an express waiver of immunity was still necessary. While it may have been possible for the plaintiff to pursue a claim under the FTCA, that claim was time barred. The plaintiff had failed to pursue that claim earlier due to a mistaken understanding of the law in the 9th Circuit, but a mistake of law on the part of the plaintiff was not grounds to toll a limitations period. As a result, the FTCA claim was not made in a timely fashion and was foreclosed. The court lamented not being able to remedy what it saw as a wrong, but found this case to be outside what it could remedy under applicable law.
9th Circuit - Herring Networks v. Maddow (20-55579) - Issued 8/17/2021
During a 2019 segment of the Rachel Maddow show, the host made a comment about the One America Network and one of its employees, relying on some reporting from the Daily Beast suggesting that an OAN employee was also being employed by a Russian propaganda outlet called Sputnik. The corporation that owns OAN sued Maddow for defamation, and Maddow defended the suit under California's "anti-SLAPP" provision. Anti-SLAPP laws are designed to prevent lawsuits from being used to intimidate people against using their protected First Amendment rights. The Court here upheld the district court's ruling dismissing the lawsuit against Maddow, as Maddow's statements were all protected First Amendment speech, with nothing that could be categorized as defamation.
9th Circuit - Maner v. Dignity Health (18-17159) - Issued 8/20/2021
The question presented in this case is whether a supervisor's favoring of their romantic interest over other employees constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. The appellate court upheld the district court's dismissal of the suit. The standard test for whether sex discrimination is occurring is to reverse the sex of the individual involved in the claim and determine if that would matter to the result. In this case, it would have no bearing - the issue is the preferential treatment being given to a supervisor's "Paramour preference," which may be unfair or even discriminatory but does not qualify as sex discrimination for Title VII purposes.
9th Circuit - Plancarte Sauceda v. Garland (19-73312) - Issued 8/20/2021
This case involved a review of a denial by the Board of Immigration Appeals of an application for asylum. One of the ways that an applicant can demonstrate that they qualify for asylum is by demonstrating membership in a social group that faces particular danger. The applicant here argued that the social group of which is a member is nurses - and the BIA argued that because this is not an immutable characteristic, it was insufficient. The 9th Circuit ruled that this was not the case - the threat to the applicant was from a drug cartel, and the cartel was especially interested in the knowledge that the applicant had as a nurse. They intended to threaten and intimidate the applicant into assisting the cartel - under penalty of death for defying them - and the applicant's nursing knowledge is in fact immutable. As a result, the 9th Circuit remanded to the BIA with instructions to consider the social group prong met and to review the evidence to determine if the applicant's case met the other requirements for asylum to be approved.
10th Circuit - Animal Legal Defense Fund v. Kelly (20-3082) - Issued 8/19/2021
Kansas passed a law attempting to prevent people from disrupting feedlot and other agricultural enterprises by restricting entering those locations and taking various actions - such as recording, exercising control over, or trespassing upon one of these facilities for purposes of damaging the enterprise. The ALDF wants to get people hired at these facilities in order to place whistleblowers inside of them, but didn't want to run afoul of the law. The ALDF argued that its statements showing abuses and other negative practices at the facilities would be made for the purpose of harming the enterprise, and since deception would have been used to gain employment, the ALDF seeks to invalidate the statute to prevent it from interfering with their plans. The district court below found that various provisions of the Kansas law were unconstitutional restraints on speech. The appellate court affirmed, finding that the Kansas law made no attempt whatsoever to determine whether it interfered with any protected speech and was therefore clearly unconstitutional.
10th Circuit - St. George v. City of Lakewood (20-1259) - Issued 8/20/2021
This is a bizarre case involving a police shooting. After being shot in the leg and engaging in a gun fight with police officers during their investigation of him on allegations from an escort of sexual assault and attempted murder, the plaintiff sought to bring an excessive use of force argument against the policeman who shot him. The facts are very strange and included the police calling the plaintiff 6 times in 15 minutes to try to get him to come outside. By the end of the 15 minutes the plaintiff had armed himself after coming to believe that associates of the escort with whom he had previously had a disagreement earlier that evening. The police did not reveal themselves or otherwise make their presence known despite these phone calls saying that they were there, contributing to the court's decision that the plaintiff could not have known he was dealing with the police at the time the shoot out occurred. The court sent the case back to the district court to determine whether qualified immunity still applies, finding that it was not clear that the plaintiff had acted unreasonably in light of the circumstances.
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