Last Week in Federal Appeals (No. 54)
Last Week in Federal Appeals (No. 54)
Appellate decisions from the week of October 23-27, 2023
“The operation of a drone is not inherently expressive—nor is it expressive to fly a drone 400 feet over a prison, sports venue, or critical infrastructure facility. And nothing in the No-Fly provisions has anything to do with speech or expression. These are flight restrictions, not speech restrictions.”
~ Judge Willett, National Press Photographers Association v. McCraw
Decision Summaries
Fifth Circuit
Galbraith v. Hooper
The Fifth Circuit held that, under Louisiana law, a state prisoner did have a protected due process liberty interest in parole. The panel thus affirmed a district court’s ruling that Louisiana violated the prisoner’s due process rights by rescinding his parole just before it became effective.
National Press Photographers Association v. McCraw
The Fifth Circuit rejected a group of press photographers’ argument that they had a First Amendment right to fly drones over and film private individuals and property without their consent. The panel did not, however, hold that there might not be a First Amendment right to do so under circumstances; it merely rejected a facial challenge to a Texas law governing the use of drones.
Sixth Circuit
United States v. Zakhari
The Sixth Circuit held that a district court erred by refusing to suppress a statement given to police after a suspect asked to speak with his sister, an attorney. The panel rejected the district court’s conclusion that the suspect’s request was “equivocal” because it seemed be an attempt to speak with a family member rather than seek legal advice. The panel also held that the district court erred in rejecting the suspect’s claim of prosecutorial vindictiveness without requiring the government to substantiate its explanation for adding additional charges well after the first indictment was handed down.
Ninth Circuit
No on E, San Franciscans Opposing the Affordable Housing Act v. Chiu
The Ninth Circuit held that challengers to a local secondary-disclosure law related to political contributions had not shown a likelihood of success on the merits of their First Amendment challenge, concluding that the district court correctly refused to issue a preliminary injunction. The San Francisco law in question requires certain political advertising committees to disclose not only their top contributors but also the major donors to those contributors.
Tenth Circuit
Frank v. Lee
The Tenth Circuit upheld a Wyoming law prohibiting electioneering within 300 feet of a polling place on election day, rejecting a First Amendment challenge to the law. The panel remanded for further proceedings with respect to a 100-foot ban on electioneering activities around “absentee polling” places.
Chase Manufacturing, Inc. v. Johns Manville Corp.
The Tenth Circuit revived a federal antitrust lawsuit against a pipe insulation manufacturer that threatened to stop selling its product to distributors if they bought from a new market entrant offering a better (and cheaper) product. The panel held that the district court erred by finding that the plaintiff had failed to establish a genuine issue of material fact precluding summary judgment.
Eleventh Circuit
United States v. McCall
The Eleventh Circuit held that the good faith exception to the exclusionary rule applied to a search of an iCloud account based on a warrant that contained no time limitation and was only indirectly connected with the alleged crime. The panel reasoned that “like judges, law enforcement officers may struggle to apply existing” Fourth Amendment “standards to new circumstances.”
Butler v. Smith
The Eleventh Circuit reversed a district court’s grant of qualified immunity to a school resource officer who prompted felony charges of child cruelty against a mother whose son chose to keep attending a school that required him to either (1) walk several miles home after school or (2) remain at a local park in the afternoon until his mother could pick him up. The panel explained that qualified immunity was inappropriate because the officer had the mother “arrested on extraordinarily serious felony charges based on conduct that, by any objective measure, doesn’t remotely qualify” and “to make matters worse . . . conspicuously omitted material exculpatory information” from her warrant application.
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