Last Week in Federal Appeals (No. 16)
Last Week in Federal Appeals (No. 16)
Appellate decisions from the week of July 5-9, 2021
Fourth Circuit
Walker v. Donahoe
The Fourth Circuit, clarifying an earlier decision, held that—although carrying a firearm in a state that permits open carry cannot alone be enough to give reasonable suspicion to stop a citizen—it can contribute to it under the totality of the circumstances. In rejecting Walker’s Section 1983 claim against the officer who stopped him, the panel noted that Walker (1) was carrying an AR-15 assault rifle, (2) was the subject of a 911 call reporting a man with an assault rifle close to a school, (3) was stopped just a week after the Parkland school shooting, (4) was dressed like a soldier, and (5) was walking rather than driving (suggesting he might be a minor).
Fifth Circuit
McDonald v. Hammer
The Fifth Circuit held that the Texas Bar’s use of mandatory fees to lobby for substantive changes to Texas law, including changing the State’s marriage law to expressly recognize LGBTQ rights, violated the First Amendment rights of objecting members—even though they had the option of seeking a pro rata refund of their dues. Minority representation initiatives aimed a the legal profession and pro bono initiatives, however, do not.
Seventh Circuit
Demkovich v. St. Andrew the Apostle Parish
The Seventh Circuit, sitting en banc, held that the ministerial exception—which protects religious organizations from employment discrimination claims—applies to hostile work environment lawsuits. In this case, Demkovich (the church’s music director) alleged that the priest at St. Andrews made derogatory comments towards Demkovich because he is gay, especially after the priest learned that Demkovich planned to marry his partner. Demkovich further alleged that he was fired because of his plans to marry and that the priest belittled him because of his diabetes and weight issues.
Ninth Circuit
Killgore v. City of South El Monte
The Ninth Circuit held that the massage industry is “closely regulated” such that the government can perform administrative searches of massage parlors without a warrant. The panel further explained that the administrative inspection scheme here was justified by a government interest in detecting and preventing prostitution and human trafficking.
Eleventh Circuit
United States v. Leonard
In Rehaif, the Supreme Court held that, to convict a person of being a felon in possession of a firearm, the government must prove that the defendant knew he was a felon. Here, the Eleventh Circuit held that a defendant is not entitled to a presumption of prejudice (and thus must still prove the error was not harmless) where his indictment did not include this element.
D.C. Circuit
Judge Rotenberg Educational Center v. FDA
The D.C. Circuit vacated a 2016 rule promulgated by the FDA which banned the use of electrical stimulation devices to treat aggressive and self-injurious behaviors. The panel held that the FDA cannot ban a medical device’s use only for a particular purpose, because that improperly regulates the practice of medicine (which is the province of the States) in violation of federal statutes.
United States v. Hale-Cusanelli
The D.C. Circuit upheld a district court decision denying pretrial release to a defendant who participated in the January 6 attack on the U.S. Capitol. The panel upheld the lower court’s conclusion that he posed a danger to the community, based on his past racist behavior, statements about anticipating a civil war, and citation to Thomas Jefferson’s famous statement about the tree of liberty needing to be refreshed with the blood of patriots. The panel further explained that there is no requirement that a defendant have engaged in violent behavior before being denied pretrial release.
Points of Interest
The New Hampshire Supreme Court struck down a law passed by the GOP legislature changing the absentee voting process in the State. The Court unanimously upheld the trial court’s finding that the new restrictions caused voter confusion and would not serve an interest in deterring fraud.
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
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