Last Week in Federal Appeals (No. 31)
Appellate decisions from the weeks of January 31 - February 11, 2022
“It is clear that subsection (iv) covers a substantial amount of protected speech. Many commonplace statements and actions could be construed as encouraging or inducing an undocumented immigrant to come to or reside in the United States. . . . Hansen and amici provide numerous other examples of protected speech prosecutable according to the plain text of the statute, including encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her tourist visa, or providing certain legal advice to undocumented immigrants. Examples of protected speech encompassed by subsection (iv) include everyday statements or conduct that are likely repeated countless times across the country every day. Subsection (iv) [thus] “create[s] a criminal prohibition of alarming breadth” comparable to other statutory provisions the Supreme Court has held are facially overbroad.
~Judge Ronald M. Gould, United States v. Hansen
Decision Summaries
Second Circuit
United States v. Patterson
The Second Circuit reversed a district court decision granting a motion to suppress. It held that a defendant was not arrested even though officers blocked his way, shouted at him, and pointed guns at him.
Third Circuit
Mears v. Connolly
The Third Circuit held that a New Jersey state mental-health facility violated a visitor’s due process rights when it failed to protect her from assault. The panel explained that, though the government doesn’t have a general duty to protect us from harm perpetrated by third-parties, it does where it creates the danger. Here, the hospital encouraged a mother to visit her mentally-ill son and then left them unsupervised.
Fourth Circuit
Appalachian Voices v. Department of the Interior
The Fourth Circuit held that the Department failed to adequately consider the impact of a new natural-gas pipeline on two endangered fish species. It remanded the matter to the agency for further consideration.
Fifth Circuit
United States v. Bates
The Fifth Circuit held that crimes that can be committed with a “recklessness” mental state do not qualify as crimes of violence under the “elements clause” of the U.S. Sentencing Guidelines’ career offender provisions.
In re: Taxotere (Docetaxel) Products Liability Litigation
The Fifth Circuit held that Rule 30(b)(6) of the Rules of Civil Procedure, which permits a corporate party to designate one person as a “corporate representative” to testify on its behalf, cannot be used as an end-run around Rule 702 of the Federal Rules of Evidence, which governs expert testimony. The panel explained that a corporate representative cannot offer qausi-expert opinion testimony without being qualified as an expert, even if he is purportedly testifying to knowledge known to the corporation.
Eighth Circuit
United States v. Crandall
The Eighth Circuit held that a non-retroactive change in the criminal statute under which a defendant was sentenced is not an “extraordinary and compelling reason for reducing a sentence” under 18 U.S.C. § 3582(c).
Ninth Circuit
United States v. Hansen
The Ninth Circuit held that a portion of 8 U.S.C. § 1324, which prohibits encouraging or inducing an alien to reside in the United States for private financial gain, violated the First Amendment. The panel held that subsection (iv) of that statute covers a substantial amount of speech protected by the First Amendment because many commonplace statements an actions could be construed as encouraging or inducing an undocumented immigrant to come to or reside in the United States.
Eleventh Circuit
T.R. v. Lamar County Board of Education
The Eleventh Circuit held that school officials violated a student’s Fourth Amendment rights when they submitted her to two, separate strip searches in an attempt to find marijuana while the student was on her period. The panel explained that school officials were not entitled to assume that the student had drugs on her person even though they “found marijuana stems and seeds, rolling paper, two lighters, and an assortment of pills in T.R.’s backpack.”
D.C. Circuit
American Federation of Government Employees v. FLRA
The D.C. Circuit held that the Federal Labor Relations Authority’s decision to abandon its de minimis impact rule—which gives federal employees the right to collectively bargain over any management decision that had more than a minimal impact on their working conditions—was arbitrary and capricious. The Authority wanted to require that a decision have a “substantial impact” for employees to have the right to collectively bargain about.
In the News:
Scott Detrow of NPR provides an overview of President Biden’s ongoing process for selecting a nominee to replace Justice Breyer. He reports that President Biden has decided to take a “deep dive” into the background of four candidates.
Roll Call provides an overview of various State-court decisions on redistricting.
The Supreme Court stayed a three-judge district court opinion invalidating Alabama’s new Congressional map, allowing it to go into effect pending the Justices’ review of the merits. (See here for additional coverage.)
SCOTUSBlog and the New York Times ran profiles on Judge Michelle Childs, a potential Supreme Court nominee:
The New York Times also ran a profile of California Supreme Court Justice Leondra Kruger.
Yale Kamisar, a University of Michigan Law School Professor known as the “Father” of the Miranda ruled, died at age 92.
State Decisions of Interest:
The Florida Supreme Court rejected Governor DeSantis’s request for an advisory opinion as to whether the State can dismantle a Black, North-Florida Democrat’s Congressional seat to make the map more favorable to Republicans.
The Missouri Supreme Court suspended the law licenses of two attorneys who made national news by waiving guns at Black Lives Matter protestors in St. Louis.
The North Carolina Supreme Court struck down a redistrict map passed by the State legislature, finding that it violated the State constitution by overly favoring Republicans.
The Ohio Supreme Court again rejected redistricting maps adopted by the State Legislature, which it held unduly favored Republicans despite minor changes made in response to the Court’s earlier decision.
The Wisconsin Supreme Court allowed a ban on ballot drop boxes to go into affect ahead of April’s elections.
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.
