Last Week in Federal Appeals (No. 8)
Appellate decisions from the week of May 10-14, 2021
“While Deputy Fenton believed that the vials laying on the couch ‘seem[ed] a little odd,’ something seeming ‘a little odd’ is usually a hunch and not probable cause.”
~ Judge Erickson, United States v. Arredondo
First Circuit
SEC v. Morrone
The First Circuit held that the district court did not err in applying federal securities laws to the defendants, even though the case involved foreign transactions involving foreign investors and solicited by foreign brokerage firms. It held that a transaction is domestic under the Supreme Court’s decision in Morrison v. National Australia Bank, 561 U.S. 247, so long as a party “incurred irrevocable liability within the United States to deliver a security.” Here, the defendant corporation signed the relevant subscription agreements in Boston.
Fourth Circuit
United States v. Bartow 1
The Fourth Circuit reversed the defendant’s conviction for using “violent abusive language” after he used a racial slur while shopping for footwear on a military base. The First Amendment allows the government to criminalize so-called “fighting words,” but only where there is a likelihood that the person addressed “would make an immediate violent response.” The government here offered no evidence that anyone responded violently or that a reasonable person would have.
Sixth Circuit
Thomas v. TOMS King (Ohio), LLC
The Sixth Circuit held that a bare violation of the Fair and Accurate Credit Transactions Act (FACTA)’s “truncation” requirement (precluding companies from printing more than the last five digits of a credit card number on a receipt) is not sufficient to establish standing. The Court explained that printing the first six digits of the card only reveals the issuer and that the plaintiff had not otherwise proven any injury in fact.
Seventh Circuit
Flores v. City of South Bend
The Seventh Circuit reversed a district courts dismissal of a Section 1983 claim against a police officer where the officer, traveling at 98 miles-per-hour to reach the scene of a routine traffic stop, crashed into plaintiff’s car, killing her. Because no officer on the scene had radioed for assistance and there was no emergency, a jury could find that the officer acted with deliberate indifference. Moreover, because the plaintiff adequately alleged a failure to properly train officers, the district court also erred in dismissing the plaintiff’s claims against the City of South Bend.
United States v. Shelton
The Seventh Circuit vacated a defendant’s conviction after it became clear during trial that a co-worker who had searched her desk had done so at the direction of the FBI. The panel held that the district court erred in concluding the defendant had no reasonable expectation of privacy and that a later warrant would have issued even without the initial search.
Eighth Circuit
United States v. Arredondo
The Eighth Circuit upheld a district court’s order suppressing evidence officers discovered during a “welfare check.” The panel held that small medical vials were not immediately incriminating and, thus, that the plain view exception did not apply.
T.S.H. v. Green
The Eighth Circuit held that university police officers acted reasonably when they instructed a high school coach to confine football camp participants to a gymnasium for several hours so they could be questioned about an alleged peeping-Tom incident. The Court noted that the incident may have been viewed as a potential Title IX issue or a violation of Missouri law.
Ninth Circuit
A Community Voice v. EPA
For the second time this month (see also LULA v. Regan, covered here), the Ninth Circuit remanded a Trump-Administration environmental rule to the EPA for reconsideration. The panel held that the EPA’s 2019 dust-lead hazard standards (which relate to household lead dust) were not lowered to a level sufficient to protect health because the EPA looked to factors beyond health risks in setting acceptable limits.
Hardeman v. Monsanto
After a bell-weather trial, the Ninth Circuit upheld a $25.2 million verdict, including $20 million in punitive damages, against Monsanto in multidistrict litigation alleging that the company’s Roundup product causes cancer. The panel held that federal law did not preempt the plaintiff’s state-law, failure-to-warn claim and that the punitive damages award (after it was reduced by the district court) was not unconstitutionally excessive.
Hernandez-Galand v. Garland
The Ninth Circuit reversed the Board of Immigration Appeals’s decision to deny an immigrant’s petition to reopen her own and her minor child’s removal orders, holding that exceptional circumstances warranted reopening. Hernandez-Galand could not read and, because of a childhood head injury, suffered from chronic memory problems. She relied on her family to interpret her written hearing notice, which stated that the hearing was on 07/12/2016. But because, in El Salvador, dates are written with the date first and month second, they incorrectly believed the hearing was on December 7 rather than July 12. As a result, Hernandez-Galand had failed to appear.
United States v. Brown
The Ninth Circuit reversed a district court’s denial of defendant’s motion to suppress. It held that the officer who arrested Brown exceeded Terry v. Ohio’s limits on protective searches because he simply reached directly into Brown’s pocket to extract the item there. The officer did not discover it as part of any pat down or other limited intrusion.
Eleventh Circuit
United States v. Dominguez
The Eleventh Circuit held that “sexual activity” as used in 18 U.S.C. § 2442(b) does not require “actual or attempted physical contact between two persons.” In so holding, the panel deepened a Circuit split between the Fourth and Seventh Circuits.
Points of Interest
ATF has filed a petition for rehearing en banc in a 6th Circuit case (Gun Owners of America v. Garland, No. 19-1298) that rejected its attempt to regulate bump-stock attachments and concluded that Chevron does not apply in criminal cases.
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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A quick disclosure: My friend and former colleague, Rick Redmond (McNaul Ebel Nawrot & Helgren PLLC ), briefed and argued this case on behalf of the defense.