Last Week in Federal Appeals (No. 7)
Last Week in Federal Appeals (No. 7)
Appellate decisions from the week of May 3-7, 2021
“We must remember that the Federal Judiciary is hardly a cross-section of America. A district judge, who belongs to a select class of highly educated professionals, might remove a juror by honestly misinterpreting the juror’s language as proof of misconduct …. Religious beliefs may provide the basis for removal when those beliefs do not permit them to complete their jury service. [However,] Jurors may pray for and believe they have received divine guidance as they determine another person’s innocence or guilt, a profound civic duty but a daunting task to say the least. Prayer is a part of the personal decision-making process of many people, a process that is employed when serving on a jury. To ask that jurors become fundamentally different people when they enter the jury room is at odds with the idea that the jury be drawn from a fair cross section of the community.” ~ Chief Judge Pryor, United States v. Brown
Second Circuit
Rucker v. Giffen
The Second Circuit held that a prisoner does not fail to exhaust his administrative remedies under the Prison Litigation Reform Act where (1) his failure to file for the remedy within the allowed time results from a medical condition and (2) the prison’s administrative system does not accommodate that medical condition by allowing a reasonable opportunity to file for administrative relief. The prisoner in this case was hospitalized and in critical condition during the five days the prison allowed for filing a grievance.
Fourth Circuit
United States v. Davis
The Fourth Circuit held that the district court erred in denying the defendant’s motion to suppress evidence collected from his backpack without a warrant after he was handcuffed and lying face down on the ground. Relying on the Supreme Court’s decision in Arizona v. Gant, it held that officers may search non-vehicular containers incident to a lawful arrest “only when the arrestee is unsecured and within reaching distance” of the container “at the time of the search.”
United States v. Santos-Portillo
Federal agents arrested Santos-Portillo for unlawfully entering the United States after having earlier been deported based on a felony conviction. But they failed to get an administrative arrest warrant beforehand, so he moved to suppress the evidence collected during the arrest. The Fourth Circuit held that, because the administrative arrest statute does not provide for suppression, the federal courts lacked authority to impose it.
Fifth Circuit
United States v. Smith
The Fifth Circuit held (on plain error review) that the defendant’s admission that he “touched” a firearm at a friend’s house was not a sufficient factual basis for his guilty plea to being a felon in possession of a firearm.
Seventh Circuit
Evans v. Jones
The Seventh Circuit reversed the district court’s denial of habeas relief, finding that the Illinois state courts had unreasonably applied federal law when they concluded that a prosecutor’s statements did not reference facts not before the jury. The prosecutor had argued that the state’s key witness only recanted his identification of the defendant after being visited by a defense investigator. Even though counsel for both sides apparently assumed the witness spoke to a defense investigator, the witness testified only that he spoke to a woman about the case and said he did not know who she was.
Ninth Circuit
Howard Jarvis Taxpayers Association v. California Secure Choice Retirement Savings Program
In 2017, California passed a law creating the “CalSavers” program, a state-run IRA savings program for employees of private employers who do not offer their own retirement plans. Eligible employees are automatically enrolled unless they opt out. The Ninth Circuit held that such plans (which have been adopted in several states) are not preempted by ERISA.
Lemmon v. Snap, Inc.
The Ninth Circuit held that Section 230 of the Communications Decency Act did not protect Snapchat from a lawsuit filed by the parents of two boys who died in a high-speed accident. The parents argued that Snapchat’s reward system and its Speed Filter (which allows users to document their real-time speed) encouraged their sons to drive at dangerous speeds. Because the suit was based on the design of the application, rather than any obligation to monitor third-party speech, the Court held that Section 230 did not apply.
Tenth Circuit
United States v. Venezia
The Tenth Circuit held that the police violated the Fourth Amendment by impounding a vehicle without a legitimate community caretaking rationale. The Court highlighted several factors supporting its decision, including that: The car was in a hotel parking lot (not obstructing traffic), the hotel owner was not consulted about the possibility of leaving the car on the property, the officers had no reason to think they would not eventually be able to contact the listed owner, the officers did not consider a proposed alternative, and the car would not have provided further evidence of the offenses for which the defendant was arrested.
Eleventh Circuit
United States v. Brown
The Eleventh Circuit, sitting en banc, held that a district court erred by removing a juror who said, after the start of deliberations, “that the Holy Spirit told him that the defendant … was not guilty on all charges.” The district court removed the juror even though the judge found sincere and credible the juror’s assurances he was following the jury instructions and basing his decisions on the evidence. The Eleventh Circuit held that it was error to conclude “that the juror’s statements about receiving divine guidance were categorically disqualifying.”
Shipley v. Helping Hands Therapy
The Eleventh Circuit held that a district court may not remand a removed case to state court where a procedural defect in removal was raised for the first time in a reply brief filed 54 days after the notice of removal. This is so, the Court explained, even when the original motion to remand was filed within the statutory 30 day time limit. In so holding, the Court deepened an existing circuit split (the Ninth Circuit agrees with this decision, the Fifth Circuit came out the other way).
Of Interest
The Supreme Court of Utah held that transgender people have a common-law right to change their legal sex designations such that “their government identification documents [match] their held-out identities. “Language matters,” the Court wrote, “We address appellants by their appropriate pronouns. The ease with which we could have misgendered them by using opposite-sex pronouns, despite their appearances and pronouncements, amplifies the importance of matching their government identification documents to their held-out identities.”
The Supreme Court of New Mexico released an opinion explaining its decision to issue a writ of mandamus compelling the Secretary of State to issue mail absentee ballot applications to all eligible voters in light of the COVID-19 pandemic. It held that “the Secretary of State had a duty to exercise her power to the fullest extent of the law to promote the safety of election workers and voters while conducting the June 2020 election.”
The Supreme Court of Wisconsin rejected an as-applied Second Amendment challenge to a statute prohibiting “operating or going armed with a firearm” while intoxicated.
In a 50-plus page concurrence, Judge Newsom of the 11th Circuit argued that the “injury-in-fact” requirement of standing is inconsistent with the constitution. Instead, he says, a plaintiff should have standing whenever “he has a legally cognizable cause of action, regardless of whether he can show a separate, stand-alone factual injury.” Judge Newsom says he reached this conclusion after “several pretty unsatisfying encounters with” current standing doctrine.
Poll Results
Last Thursday, I included a poll with my post about the Ninth Circuit’s recent holding that Washington could pass a workers compensation law that singled out the federal government for special treatment.
By a 2-1 margin, readers agreed with Judge Collins’ dissent from denial of rehearing arguing that the panel incorrectly interpreted federal law.
Post Script
Finally, a bit of housekeeping. Substack recently released an update that allows me to divide posts into “Sections.” So I have added three sections to the home page to help readers find the articles most relevant to them:
Last Week in Federal Appeals. That’s this newsletter, which provides short blurbs on the previous week’s appellate decisions.
Bill of Particulars. Periodic criminal-law focused posts that are more in-depth than the weekly newsletter.
On the Pleadings. Periodic civil-law focused posts that are more in-depth than the weekly newsletter.
If you would like, you can adjust your subscription settings to only receive updates from particular sections. But I hope (of course) that you’ll stick around for all the content on the site.
The home page itself will continue to display posts from all three sections.
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.
