New on the Short Circuit podcast: Can an AI be an "author" under copyright law?
- Your summarist (who has never been an employment lawyer) didn't know that the Equal Protection Clause might constitutionalize protections against a hostile gov't work environment. So color me even more surprised that a drug-court judge's allegedly "creepy" conduct toward a court counselor wouldn't even receive qualified immunity. You learn something new every day! (The First Circuit opinion is here.)
- New Jersey bars out-of-state wine retailers from shipping to locals unless they open a Jersey storefront and buy from in-state wholesalers. New York wine retailer sues under the dormant Commerce Clause. Third Circuit: The Garden State's rules help it trace booze, recall tainted stock, and bust shady operators. Cheers, Jersey.
- Does a law that bars people from speaking for pay trigger First Amendment scrutiny? You might think so, and so does the Third Circuit (and so does IJ, which urged this result in an amicus brief).
- When federal criminal defense lawyers think there are no non-frivolous arguments to be made on appeal, they can file an "Anders brief" saying as much. But the brief has to explain why there aren't any good arguments—a requirement that leads to a really bad day for this Third Circuit attorney, who, after first moving to withdraw and then later filing what he called a "notice of retirement," finally filed an Anders brief that was so "woefully inadequate" that the panel . . . well, it was a bad day.
- Your summarist (who has never been an oil-and-gas lawyer) didn't know that the Bureau of Ocean Energy Management even exists. The Short Circuit newsletter really is educational! Anyway, the bureau promulgated a rule, about who pays to decommission oil rigs, that the Gulf states sued about. Can the American Petroleum Institute intervene to defend the rule? Fifth Circuit: The feds can do that just fine by themselves. So no.
- The difficulty in parsing this unpublished Fifth Circuit opinion—in which every judge voted for a different set of outcomes, so the panel majority varies with the defendant officers—probably shouldn't obscure that it's ultimately about whether "[l]ocking [the plaintiff] in a hot prison shower for thirty hours, while ignoring his pleas for food, water, and cleaning supplies, as he passed out next to his own vomit, urine and excrement, clearly violated his Eighth Amendment rights." Great job, Texas.
- Muslim man in Michigan prison asks for halal meals. He's told to request vegan meals and then maybe later he'll get to move on to halal-compliant meat. But he's denied because a prison official saw him eat some sausages and a bunch of meat-flavored ramen and decided he's not all that religiously serious. Sixth Circuit: And it really doesn't matter because, among other reasons, he can't get damages under RLUIPA.
- In other Sixth Circuit news, those guys who were put in prison for planning to kidnap the Michigan governor are going to stay in prison.
- Macomb County, Mich. homeowner fails to pay her property taxes, so the county takes her home, sells it to pay the taxes, and pockets the difference. But wait, didn't both the Michigan Supreme Court and the U.S. Supreme Court say that's a taking? Sixth Circuit: They did, and Michigan has now cleaned up its act, allowing homeowners to make a claim for the excess of a tax sale. Trouble is, this homeowner even then failed to make a claim, waiving the subsequent lawsuit.
- "How does a case about a dog bite end up in federal court? Diversity jurisdiction." So starts the Sixth Circuit in a surprisingly readable decision about venue, concluding that the dog-bite victim picked the wrong federal court by choosing Kentucky, where he lived, rather than Ohio, where he was bitten.
- Car is pulled over in Summit County, Ohio, and police ask everyone to get out of the car. One passenger exits, revealing a mason jar of marijuana, a digital scale, a baggie of meth, and a bag with a gun and ammo. Yikes. He pleads guilty to being a felon in possession of a gun. His plea agreement calls for 77–96 months in prison, but his presentence report calls for 110–137 months due to the drugs. He's sentenced to 110 months. Sixth Circuit (unpublished and over a dissent): Shouldn't have enhanced. The record doesn't support the claim that he was trafficking drugs—this could all just be for personal use.
- After Robert Bork's VHS rental history came to light during his SCOTUS confirmation hearings, Congress passed a law banning the disclosure of such info—and in a way that includes video streamed over the internet, retaining relevance long after the demise of VHS. Does its use of the word "subscriber" extend to people who sign up for non-streaming services associated with streaming platforms and then have their video-viewing data handed over to Facebook? Sixth Circuit (2-1): Sure doesn't.
- After Robert Bork's VHS rental history came to light during his SCOTUS confirmation hearings, Congress passed a law banning the disclosure of such info—and in a way that includes video streamed over the internet, retaining relevance long after the demise of VHS. Does its use of the word "subscriber" extend to people who sign up for non-streaming services associated with streaming platforms and then have their video-viewing data handed over to Facebook? Seventh Circuit: Sure does.
- After spending 20 years in prison for murder, wrongfully convicted man wins an $18.75 mil award from the City of Chicago, of which at least $3.75 mil is attorneys' fees and costs. Insurance company (responsible for the city's liability between $15 mil and $20 mil): We insure damages, not fees and costs, so we're not on the hook! Seventh Circuit: Actually, you insure "ultimate net loss" that the city is "legally obligated to pay," so you are indeed on the hook.
- When natural-gas companies go to federal court to condemn land for pipelines, does state law or federal law control how much money the companies must pay? The Eighth Circuit says federal, which takes a big chunk of attorney fees away from these property owners but in exchange gives the rest of us a big, honking circuit split on this question.
- Remember that long-running zoning dispute where a church operating on agricultural land sued Maui County, Hawai'i, under RLUIPA? It's back! Ninth Circuit (published): RLUIPA's "substantial burden" test is a legal question for the court, but harmless error because the jury's finding against the church was consistent with the required legal outcome. Ninth Circuit (unpublished): Severs the unconstitutional land-use provision, dismisses the free-exercise challenge, excludes the church's expert, and affirms costs to the county.
- Your editors have no idea whether there are more requests for post-conviction relief based on newly discovered evidence these days, but they are morally certain that there are more requests where the newly discovered evidence takes the form of streaming true-crime documentaries about the convict's alleged cartel murders, of which this Ninth Circuit opinion is one.
- During jury deliberations in a Kansas drug-and-gun trial, a court IT tech briefly enters the jury room to help jurors watch a key cellphone video frame by frame. The jury convicts on all counts. Defendant: The IT guy's intrusion violated my Sixth Amendment right to an impartial jury! Tenth Circuit: The court authorized the tech support, so no presumption of prejudice. And no evidence that the IT tech said or did anything to influence the verdict, so no actual prejudice either.
New Case Alert! While the U.S. Supreme Court considers one IJ case about a wrong-house raid, we've launched another—this time, against sheriffs in North Carolina who terrorized an innocent family in a violent midnight raid. Why the raid? Because officers were searching for a suspected thief, whose cell phone pinged in the family's neighborhood. And because the baddie had been seen driving a Nissan sedan, and Alisa Carr had her Nissan sedan parked outside the home she shares with her fiancé, Avery, and their two kids. Did her car have same license plate as the suspect's vehicle? No. The same VIN? No. Was it the same model at least? ::Shuffles feet:: Um … no. Learn more here.
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