Last Week in Federal Appeals (No. 19)
Appellate decisions from the weeks of July 26-30 and August 2-6, 2021.
“Each university may decide what is necessary to keep other students safe in a congregate setting. Health exams and vaccinations against other diseases (measles, mumps, rubella, diphtheria, tetanus, pertussis, varicella, meningitis, influenza, and more) are common requirements of higher education. Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at university close contact is inevitable.
…
Other conditions of enrollment are normal and proper. The First Amendment means that a state cannot tell anyone what to read or write, but a state university may demand that students read things they prefer not to read and write things they prefer not to write. A student must read what a professor assigns, even if the student deems the book heretical, and must write exams or essays as required. A student told to analyze the role of nihilism in Dostoevsky’s The Possessed but who submits an essay about Iago’s motivations in Orthello will flunk.”
~Judge Easterbrook, Klaasen v. Indiana University
Appellate Happenings took an unscheduled hiatus last week while I was getting an appellate brief of my own in filing shape. So this week’s issue covers decisions from the last two weeks.
Second Circuit
Henry v. County of Nassau
The Second Circuit reversed a district court order dismissing Henry’s claim that Nassau County violated his Second Amendment rights. The County had confiscated his pistol license and firearms after a state family court issued a temporary protection order against him, but these items were not returned after the order was dissolved.
Third Circuit
Kenegerski v. Harper
The Third Circuit held that the Civil Rights Act of 1964 permits plaintiffs to file a retaliation claim based on a claim that they were fired or harassed for associating with a person of another race. Here, a corrections officer claimed that a co-worker referred to the officer’s bi-racial grand-niece as a “monkey” and sent a series of racially offensive text messages. The victim officer complained to supervisors and was fired a few months later.
Fourth Circuit
North Carolina v. United States
The Fourth Circuit held that North Carolina could seek to assess a civil penalty against a Marine Corps facility that failed a state air quality compliance test. It explained that the Clean Air Act waived the federal government’s sovereign immunity as to this type of penalty.
Eline v. Meehan
The Fourth Circuit rejected an equal protection challenge to an Ocean City, Maryland, ordinance that prohibited public nudity, passed in response to complaints about topless sunbathing. The plaintiffs had challenged the law on the grounds that it prohibits women, but not men, from appearing bare-chested in public.
Fifth Circuit
Hughes v. Vannoy
The Fifth Circuit affirmed a district court’s grant of habeas corpus to a state prisoner based on an ineffective assistance of counsel claim. The basis for the claim was trial counsel’s failure to interview witnesses who would have contradicted an eyewitness account of the crime.
Sixth Circuit
Bristol Regional Women’s Center v. Slatery
The en banc Sixth Circuit upheld a Tennessee law mandating a 48-hour waiting period before a woman can obtain an abortion.
Southard v. Newcomb Oil Co.
The Sixth Circuit affirmed a district court’s decision refusing to compel arbitration. The panel held that the Federal Arbitration Act did not apply because the parties’ contract—to the extent there was one—was an agreement to participate in alternative dispute resolution, not arbitration. It noted that “[t]he common features of classic arbitration include 1) a final, binding remedy by a third party, 2) an independent adjudicator, 3) substantive standards, and 4) an opportunity for each side to present its case.”
Seventh Circuit
Planned Parenthood v. Marion County Prosecutor
The Seventh Circuit upheld an Indiana law requiring medical providers to report to the state complications “arising from” abortions. The panel held that, while the statute has some ambiguity, it was not unconstitutionally vague.
Klaasen v. Indiana University
The Seventh Circuit rejected eight college students’ challenge to Indiana University’s requirement that all students be vaccinated against COVID-19 unless they are exempt for religious or medical reasons. The panel explained that the requirement did not violate the students’ due process rights.
United States v. Dingwall
The Seventh Circuit reversed a district court’s decision precluding a defendant from presenting a duress defense where she claimed she committed robberies because she feared brutal violence at the hands of an abusive boyfriend. The panel explained that she could present the defense even though the boyfriend was not physically present at the robberies.
Eighth Circuit
United States v. Lamm
The Eighth Circuit held that the government can authenticate social media evidence by providing circumstantial evidence linking the defendant to a social media account—though simply providing a certification from a social media company is not enough. The panel recognized the difficulty in authenticating social media accounts because of “the great ease with which a social media account may be falsified.” Here, the government was able to link the defendant’s cell phone number to the accounts.
Ninth Circuit
Capriole v. Uber Technologies
The Ninth Circuit reversed a district court decision refusing to compel arbitration in a class action brought by drivers against Uber. The panel held that Uber drivers do not fall within the interstate commerce exception to the Federal Arbitration Act.
Tenth Circuit
United States v. Woodard
The Tenth Circuit held that a district court erred in declining to suppress evidence collected from a defendant’s car after it was impounded. The panel explained that the police had not acted according to a standard policy and had impounded the car merely as a pretext to search it.
Janny v. Gamez
The Tenth Circuit reversed a parolee’s Section 1983 claim arguing that conditions of his parole violated his First Amendment rights. Officers enrolled the parolee in a Christian transitional program requiring “mandatory prayer, bible study, and church attendance” and told him he had to choose between participating and going back to jail.
D.C. Circuit
Usoyan v. Republic of Turkey
The D.C. Circuit held that protestors injured by Turkish security forces in a clash outside the Turkish ambassador’s residence in Washington, D.C., could sue Turkey in federal court. The panel rejected claims of sovereign immunity, political question doctrine arguments, and claims that issues of international comity barred the suit.
Points of Interest
The Minnesota Supreme Court held that the state’s permit-to-carry law, which requires a permit to carry a gun in public places, did not violate the Second Amendment.
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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