An it harm none, do what ye will

Knowles v. Pfister, No. 15-1703 (7th Cir. July 13, 2016).

A pentacle medallion

A pentacle medallion

Gilbert Knowles, an Illinois prisoner and practicing Wiccan, wants to be able to wear a small pentacle medallion, a Wiccan religious symbol, around his neck. The prison says it’s worried about “star symbols” being used as gang identifiers, but it hasn’t been able to come up with any evidence that pentacle medallions have ever caused a problem. Plus, another prisoner has testified that he’s worn a pentacle medallion since 1998 without experiencing threats or violence. So the Seventh Circuit, per Judge Posner, holds that Knowles’s “freedom of religious has been gratuitously infringed,” and directs the district court to enter a preliminary injunction allowing Knowles to wear the medallion.

The spirit of the '90s is alive in criminal justice

Marshall v. Sec’y, Fla. Dep’t of Corr., No. 13-13775 (11th Cir. July 12, 2016).

In the aftermath of the Oklahoma City bombing and in the midst of a reelection campaign, Bill Clinton signed AEDPA into law. Sponsored by the very man seeking to replace Clinton in office, AEDPA restricted the federal courts’ power to grant writs of habeas corpus. Prisoners convicted in state court can now be granted the writ only if their conviction was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or if the conviction was “based on an unreasonable determination of the facts.” Under this law, an unconstitutionally convicted prisoner can’t get relief from the federal courts if he can’t point to a specific Supreme Court precedent that the state courts misapplied beyond all dispute. 

Two years after President Clinton put his signature on AEDPA, somebody robbed a Pizza Hut in Winter Haven, Florida, taking $261 dollars. An employee identified the robber as a black man in his young twenties, about 5’4”, 115 pounds, dark-skinned. Later that night, the police came across Johnny Marshall, a 32-year-old black man, about 5’8”, 180 pounds, light-skinned. Despite no evidence that Marshall was connected to the robbery, police took Marshall to the Pizza Hut employee, who quickly identified him as the robber. Based on the employee’s identification, Marshall was convicted of robbery and sentenced to life imprisonment because he was on prison release. 

In this habeas proceeding, Marshall argues that his trial lawyer provided him with ineffective assistance of counsel. That lawyer, Marshal says, should have moved to suppress the Pizza Hut employee’s identification on the ground that it was obtained as a result of the police’s unconstitutional seizure of Marshall. But the Eleventh Circuit holds that the lawyer’s failure to move to suppress cannot get Marshall a writ of habeas corpus, because this failure was just not quite incompetent enough. 

Judge Rosenbaum concurs separately. While Marshall’s lawyer was unconstitutionally ineffective, that is not enough under AEDPA. Judge Rosenbaum is not happy about this result: “Johnny Marshall has already spent seventeen years in jail for a $261 robbery that he very well may not have committed. And after our decision today, he may spend the rest of his life there.” Marshall’s only hope is clemency from Governor Rick Scott—which is to say, not much hope at all.

Not I, not I, but the wind that blows through me!

United States v. Alvarez-Núñez, No. 15-2127 (1st Cir. July 8, 2016).

The defendant pleaded guilty to firearm crimes. The probation officer’s sentencing report suggested an above-guidelines sentence, noting that the defendant was part of a reggaeton duo, Pacho y Cirilo, whose songs, in the report’s words, “promote violence, drugs and the use of weapons and violence.” The defendant objected to the report. The district court, however, ended up watching the video for “Como grita el palo,” one of the duo’s songs—a title that I think means something like “listen to that gat scream.” The court criticized the video’s content, decided it could consider the defendant’s music, and gave the recommended above-guidelines sentence: eight years in prison. (Note that the amateur music criticism preceded the decision to take the music into account.)

The First Circuit doesn’t hold that the district court violated the First Amendment by considering the defendant’s music. It does hold, though, that the district court shouldn’t have assumed that the music accurately reflected what was going through the defendant’s mind when he violated federal gun laws. A sentencing court, the First Circuit says, can’t just leap from art to life, particularly where, as here, the defendant has no previous criminal history. This sort of apprehension seems wise. We should all be reluctant to draw broad inferences from art to life. Art can be disguise as well as disclosure.

The defendant’s sentence is vacated and the case is remanded for resentencing.


Cruz Martinez v. United States, No. 14-5860 (6th Cir. July 7, 2016) (en banc).

Citing an extradition treaty, Mexico asked the United States to extradite Avelino Cruz Martinez to face murder charges. Martinez claims that extradition would violate a provision in the treaty prohibiting extradition where prosecution “has become barred by lapse of time according to the laws of the requesting or requested Party.” He argues that because prosecution would violate his constitutional right to a speedy trial, that prosecution has become “barred by lapse of time” under American law. 

The question before the en banc Sixth Circuit is what the treaty means by “barred by lapse of time.” Does it refer only to the statute of limitations, or does it include a vilation of the speedy-trial right? 

The majority decides that “lapse of time” doesn’t include a violation of the speedy-trial right. It points to the Spanish version of the treaty, which uses the term prescripción—or, more exactly, cuando la acción . . . haya prescrito—to refer to when a prosecution has “become barred by lapse of time.” And prescripción—what Louisiana lawyers would call “prescription”—refers to a concept that’s very close to the statute of limitations: a civil-law rule forbidding the enforcement of a right by failing to enforce that right within a fixed period. That’s quite unlike the speedy-trial right, which can’t be violated by delay alone. Judge Clay, the author of the now-superseded panel opinion, disagrees in a dissent that is as intemperate as it is unpersuasive.

Do not pity the negligent executive

United States v. DeCoster, Nos. 15-1890, 15-1891 (8th Cir. July 6, 2016).

Caution: potentially dangerous (credit: flickr / liz west)

Caution: potentially dangerous (credit: flickr / liz west)

In 2010, Quality Egg’s salmonella-infected eggs sickened at least 1,900 people, and perhaps as many as 56,000. An FDA inspection of its facilities later revealed live and dead rodents and frogs, manure piled to the rafters, and holes in the walls. The federal government charged both Quality Egg’s owner and its CEO with introducing contaminated eggs into interstate commerce. Both men pleaded guilty, and were sentenced to three months in prison. 

On appeal, they challenge their sentences as unconstitutional because they hadn’t knowingly distributed contaminated eggs. The majority of this Eighth Circuit panel upholds the sentences, reasoning that the record shows that the executives were criminally negligent, which is enough to justify their three-month sentences. Judge Beam dissents, outraged by what he believes to be the palpable injustice of the executives’ imprisonment.

It’s hard to sympathize with the egg executives here. Consider the relative risks of selling eggs and selling marijuana. 

The dangers associated with eggs are unnervingly common. The CDC estimates that one in fifty consumers is exposed to a salmonella-contaminated egg each year. And a salmonella infection is, at best, deeply unpleasant. At worst, it can kill the young, the old, and those with weakened immune systems. If an egg executive negligently sells contaminated eggs, a short trip to a minimum-security prison seems fitting. 

Marijuana can certainly be unpleasant, but you can’t kill yourself with an overdose, and even chronic use is not clearly associated with disease. Marijuana dependence is a genuine public-health problem, but it is relatively uncommon. And yet distributing large amounts of marijuana, apparently peacefully, can still get you imprisoned for almost five years in the Eighth Circuit. Compared to that, three months seems enviable.

West Virginia can't challenge Obama administration's decision not to enforce Obamacare

West Virginia ex rel. Morrisey v. U.S. Dep’t of Health & Human Servs., No. 15-5309 (D.C. Cir. July 1, 2016).

When Obamacare went into effect, health insurers announced that they planned to cancel millions of policies because they fell below the law’s minimum-coverage requirements. In response, the Obama administration decided not to enforce those requirements for a transitional period of three years. West Virginia has now sued the federal government, challenging this non-enforcement decision as beyond the President’s power. The President’s non-enforcement decision not having injured the state in any concrete way, the D.C. Circuit has little trouble determining that West Virginia lacks standing to bring this challenge.

Pilot can't sue the drug-testing company that gave false information about him to the FAA

Pasternack v. Lab. Corp. of Am. Holdings, No. 112 (N.Y. June 30, 2016).

Here’s the New York Court of Appeals’ decision in a case I reported on earlier.  

Fred Pasternack is a physician who is also a part-time commercial pilot. He was selected for an FAA-mandated random drug test, to be performed by a company called LabCorp. Pasternack arrived at the testing site, provided urine, but LabCorp told him that he hadn’t provided enough and had to wait. Pasternack was supposed to see a patient soon, though, so he asked whether he could leave and come back. There was no objection. Pasternack left, returned three hours later, and provided a urine sample that tested negative. Later, though, LabCorp determined that when Pasternack left to see a patient, it counted as a “refusal to test.” 

As a result, the FAA revoked Pasternack’s pilot’s license. After years-long litigation with the FAA, Pasternack eventually got his license back. He has also sued LabCorp, the company that caused the mess in the first place by saying, wrongly, that he had refused to be tested. Pasternack asserts claims for fraud and negligence under New York law.

When Pasternack lost in the district court and then appealed, the Second Circuit decided to certify two questions to the New York Court of Appeals. First, did LabCorp owe Pasternack a duty of care, particularly in light of the duties that LabCorp had under federal drug-testing regulations? Second, does Pasternack have a valid fraud claim when it was the FAA, rather than Pasternack himself, that relied on LabCorp’s allegedly false statements?

Today, a divided court answers both questions in the negative. Pasternack appears to be out of luck.

Sixth Circuit: District judges may consider the views of jurors in crafting a criminal sentence

United States v. Collins, Nos. 15-3263, 15-3309 (6th Cir. June 29, 2016).

Those who receive and distribute child porn face extraordinarily long sentences in federal court. The political incentives for long sentences seem clear: nobody in Congress wants to look soft on the issue. These incentives produce a system where, in some circumstances, a child rapist will get a shorter sentence than someone who possesses child pornography. But do Americans themselves really favor our current system? Or to put the question more precisely, even if Americans favor long sentences in the abstract, do they favor them in concrete cases?

Judge James Gwin of the Northern District of Ohio wanted to answer this question. After a jury found the defendant here guilty of receiving and distributing child pornography, Judge Gwin polled the jurors to ask them what they thought an appropriate sentence was. (Note that the jurors were polled after they had already come back with a conviction.) Jurors’ proposed sentences ranged from zero to five years in prison, with a mean of fourteen months and a median of eight months. All but one juror recommended a sentence less than half the five-year mandatory minimum. And all the jurors recommended sentences far below the sentencing guideline range, which was 22 years to 27 years in prison. 

Relying on the jurors’ reactions as one factor in his decision, Judge Gwin sentenced the defendant to the mandatory minimum of five years. The Sixth Circuit upholds this decision on appeal. Nothing in the Sentencing Reform Act—the Act that created the sentencing guidelines and the modern federal sentencing regime—prohibits a district judge from considering jurors’ input. That input also bears directly on how the community views the gravity of the defendant’s crime—and that view is one of the things that Congress directed the Sentencing Commission to consider in crafting sentencing guidelines. Now that the sentencing guidelines aren’t mandatory, a district judge can consider the community view if he thinks the sentencing guidelines don’t accurately reflect it.

An apology letter to a victim: a First Amendment violation?

State v. K. H.-H., No. 91934-8 (Wash. June 23, 2016).

Here’s an important case about the First Amendment. The juvenile offender here assaulted a female acquaintance. The juvenile court required him to write a “sincere written letter of apology” to the girl, admitting “he did he was accused of” and is “sorry he put her in that position.” The letter had to be approved by both the probation officer and the state. 

Does this sentence violate the First Amendment? Can the state compel an offender to speak in this way? 

To answer this question, the majority of the Washington Supreme Court employs a fairly lenient test. The First Amendment permitted the trial court to require the apology letter, the majority holds, as long as the letter was reasonably related to attaining some legitimate penological goal. And here, according to the majority, the letter passes that test, because it’s designed to rehabilitate the juvenile offender and acknowledge the victim’s injury. 

Justice Gordon McCloud, joined by two of her colleagues, dissents, believing that the First Amendment calls for closer scrutiny of the apology letter. Under the majority’s test, she argues, an “Alabama court could have ordered Dr. Martin Luther King, Jr., to write an apology to the state of Alabama rather than his ‘Letter from Birmingham Jail.’” The core problem, Justice Gordon McCloud argues, is that the trial court required the offender to express a particular point of view. If the court had simply asked the offender to write an essay pondering the effects of sexual assault on victims, that would be a different matter.

Ninth Circuit affirms convictions of Hawaii Cannabis Ministry leaders

United States v. Christie, Nos. 14-10233, 14-10234 (9th Cir. June 14, 2016).

The Hawaii Cannabis Ministry used marijuana religiously. Once you became a member of the Ministry—and it was easy to become a member—you would receive a “Ministry ID card.” Every day, through its staff members, the Ministry distributed marijuana to those with ID cards. The staff members didn’t confirm that the person picking up the pot was really the person listed on the Ministry ID card, and didn’t restrict further distribution. This state of affairs prompted the federal government to charge Reverend Roger Christie and his wife Sherryanne, the leaders of the Ministry, with unlawful manufacture and distribution of marijuana. The two entered conditional guilty pleas.

The Christies’ main argument on appeal is that their prosecution violates the Religious Freedom Restoration Act (RFRA). The government has not challenged the sincerity of the Christies’ religious beliefs, or their view that the federal marijuana laws substantially burden their practice. The question, instead, is whether the government has a compelling interest in prosecuting the Christies that can’t be satisfied in a less restrictive way—i.e., less restrictive to the Christies’ religious practices. 

The Ninth Circuit says that the government had a compelling interest in restricting marijuana from being distributed to those outside the Ministry. And, in what seems to me the far weaker part of the opinion, the court also holds that the government had no less restrictive way of furthering this interest than by prosecuting the Christies. The Christies ask why the government couldn’t merely shut down the Christies’ daily distribution of marijuana to anybody with a Ministry ID card—why the need for a criminal prosecution? The Ninth Circuit responds that this alternative would still allow the Christies to give out marijuana at Sunday services—marijuana that then could be distributed. Fair enough. But couldn’t the federal government just insist that the Christies require on-site consumption of marijuana? Why wouldn’t this less restrictive alternative to criminal prosecution prevent distribution of marijuana outside the putatively religious community? The Ninth Circuit doesn’t really say. 

What’s really going on here seems pretty clear: the Ninth Circuit doesn’t believe that the Christies’ religious beliefs are sincere. That belief may well be justified. But the explicit rationale for the court’s decision is unconvincing. 

D.C. Circuit vacates extortion conviction; trial counsel should have introduced evidence of battered-woman syndrome

United States v. Nwoye, No. 14-3060 (D.C. Cir. June 10, 2016).

A woman named Queen Nwoye had a liaison with a married doctor. After the relationship ended amicably, Nwoye’s new boyfriend urged her to lure the doctor into a meeting by claiming that she wanted to renew the affair. The doctor took the bait, and the boyfriend took photos of the two in flagrante delicto. Nwoye and the boyfriend then used the photos to blackmail the doctor out of $185,000, until the doctor finally contacted the FBI. 

Nwoye was charged with extortion. She asked the district court to give the jury a duress instruction, saying that her boyfriend had abused her and threatened to kill her if she didn’t cooperate in the blackmail. The district court refused to give the instruction. On direct appeal, a split panel of the D.C. Circuit affirmed because Nwoye hadn’t shown that her boyfriend had threatened her with imminent death or serious injury. The court noted that Nwoye hadn’t introduced any expert testimony on battered-woman syndrome. 

Now, in this collateral challenge, Nwoye argues that her legal representation at trial was ineffective because counsel didn’t seek to present any expert testimony on battered-woman syndrome (now called battered-person syndrome). This syndrome, well-established enough to have its own ICD code, imbues its sufferers with learned helplessness, robbing them of the ability to escape abuse. 

Another split panel of the D.C. Circuit today holds that Nwoye’s counsel was ineffective. Battered-woman syndrome can support a claim of duress by showing that a reasonable person in the defendant’s shoes would have felt no choice but to accede to the batterer’s demands. That’s what expert testimony could have done here—it could have supported a duress instruction by showing that a reasonable person in Nwoye’s circumstances would have felt in imminent danger if she hadn’t participated in the blackmail scheme. Trial counsel fell below a constitutional minimum by failing to introduce expert testimony, and this failure prejudiced Nwoye’s case by depriving her of a good defense. Judge Sentelle dissents.

One interesting procedural wrinkle: Nwoye is not in prison, and, in fact, not even on supervised release. Her collateral challenge thus takes the form not of a 28 U.S.C. § 2255 petition, but of a petition for a writ of coram nobis

Land carrack not a work of visual art, holds the Ninth Circuit

Cheffins v. Stewart, No. 12-16913 (9th Cir. June 8, 2016).

La Contessa, pictured at the Burning Man festival in 2005. (Credit: flickr / Thrakazog.)

La Contessa, pictured at the Burning Man festival in 2005. (Credit: flickr / Thrakazog.)

The plaintiffs, two Burning Man attendees, built a replica of La Contessa, a sixteen-century Spanish galleon, out of a used school bus. They stored the replica on land owned by Burning Man organizers. Not long thereafter, though, defendant Michael Stewart, one of the biggest property owners in the area, took possession of the land. Stewart set La Contessa on fire, and sold the school bus as scrap metal. The replica builders have sued Stewart under the Visual Artists Rights Act, part of the Copyright Act. The Visual Artists Right Act gives artists the right to prevent the intentional destruction of “works of visual art.”

What’s a work of visual art? It includes a sculpture, and according to the plaintiffs, that’s what their replica of La Contessa was. But the Copyright Act doesn’t just contain a positive definition of a work of visual art. It also contains a negative definition. It says that a work of visual art is not “applied art,” among other things. And here Stewart maintains that that the replica was applied art, and hence not protected by the Act.

So what’s applied art? The Act doesn’t define that term, but the Ninth Circuit construes it to mean an object with artistic qualities that nevertheless “originally was—and continues to be—utilitarian in nature.” And here, the court says, La Contessa, even after it stopped being a utilitarian school bus, “retained a largely practical function,” being used for transportation, rides, and a forum for performance. It isn’t protected by the Visual Artists Rights Act.

Judge McKeown concurs separately. She’d define applied art differently, as work that is “primarily directed to a utilitarian purpose.” Take the columns of the Parthenon as an example, she says. They’re outstanding sculptures, and thus should be protected by the Visual Artists Rights Act, but they also have some utilitarian function: they hold up the building. And yet the majority, she believes, leaves unresolved how utilitarian a work must be before it qualifies as applied art. Still, that doesn’t affect the result here. There’s “powerful evidence that the primary purpose of La Contessa” was utilitarian, so Judge McKeown concurs in the result. 

Tenth Circuit holds that New Mexico rule of professional conduct can't bind federal prosecutors

United States v. Supreme Court of N.M., Nos. 14-2037, 14-2049 (10th Cir. June 7, 2016).

A New Mexico ethical rule prohibits prosecutors from subpoenaing a lawyer to testify about a past or present client unless the testimony is “essential” or “there is no other feasible alternative.” A federal grand jury, however, has the power to subpoena a witness even if that witness’s information might be available from another source. The federal government argues that this rule can’t be enforced against federal prosecutors, because New Mexico’s rule would prevent a federal prosecutor from asking a federal grand jury to issue a subpoena that it could otherwise issue. The Tenth Circuit agrees with the United States and holds that the rule is preempted.

Judge Tymkovich dissents, pointing to the McDade Amendment, a federal law requiring lawyers working for the federal government to obey state ethical rules. The McDade Amendment is named after Joe McDade, who in the early ’90s was indicted for bribery. He was eventually acquitted, but he complained that federal prosecutors had violated Pennsylvania ethical rules. Meanwhile, McDade’s constituents had enthusiastically reelected him. And, in 1998, McDade offered a rider to an appropriations bill that—despite opposition from Orrin Hatch—eventually became the McDade Amendment. 

The majority doesn’t think the McDade Amendment saves New Mexico’s rule. The Tenth Circuit, and other courts too, have construed the McDade Amendment narrowly. If the state ethical rule concerns “professional ethics,” then the McDade Amendment saves it. If the rule is a “substantive or procedural” one that is “inconsistent with federal law,” McDade doesn’t apply. And here, according to the panel majority, New Mexico’s rule establishes a procedural rule. Besides, adds the majority, the grand jury’s role under the Fifth Amendment requires reading McDade narrowly. While the majority doesn’t use the phrase, it sure looks like it’s applying the canon of constitutional doubt.

Challenge to buffer zones around Pittsburgh's abortion clinics may proceed, holds Third Circuit

Bruni v. City of Pittsburgh, No. 15-1755 (3d Cir. June 1, 2015).

Protester stands directly in front of door to Planned Parenthood clinic in Washington, D.C. (Credit: flickr / American Life League.)

Protester stands directly in front of door to Planned Parenthood clinic in Washington, D.C. (Credit: flickr / American Life League.)

Pittsburgh forbids people from “congregating, patrolling, picketing, or demonstrating” within 15 feet of health care facilities. This law is meant to create a 15-foot buffer zone around abortion clinics. The Pittsburgh City Council enacted the law to ensure that patients have “unimpeded access to medical services” and to prevent the kind of confrontations that had required the Pittsburgh Police to intervene more than once in the past. 

A First Amendment challenge to that law—dismissed by the district court under Rule 12(b)(6)—has now reached the Third Circuit. The Third Circuit must decide this case in the shadow of McCullen v. Coakley, which two years ago invalidated a similar but more restrictive Massachusetts law. 

The Massachusetts law created a 35-foot buffer, but the majority opinion here thinks that Pittsburgh’s 15-foot buffer still significantly burdens the plaintiffs’ anti-abortion speech. The question then becomes whether a less restrictive buffer zone would still keep the peace and give patients safe passage. It is the City’s burden to prove that a less restrictive zone would not further these ends. The majority remands the case for factual development, after which the City will have an opportunity to try to carry its burden. In reaching this conclusion, the majority overrules Brown v. City of Pittsburgh, an earlier Third Circuit opinion. There, the Third Circuit had struck down Pittsburgh’s combination of a 15-foot buffer and an 8-foot “bubble” around everyone that approached a clinic, but it had upheld the 15-foot buffer on its own. 

Judge Fuentes concurs in the judgment only, believing that the majority’s reasoning puts too onerous a burden of proof on the City of Pittsburgh.

Tenth Circuit exonerates a 911 operator whose advice got a man killed

Estate of Reat v. Rodriguez, No. 15-1001 (10th Cir. Mar. 31, 2016).

A street scene in Wheat Ridge, Colorado, not far from where Jimma Pal Reat was killed. (Credit: flickr / Paul Swansen.)

A street scene in Wheat Ridge, Colorado, not far from where Jimma Pal Reat was killed. (Credit: flickr / Paul Swansen.)

Jimma Pal Reat and a couple family members were driving through Denver when they were attacked by armed assailants from another car. Reat drove away—across the Denver city line—and called 911. The operator instructed a reluctant Reat to return to Denver, claiming that police could not help him unless he returned. So Reat returned, and when he did, the same men who had attacked him earlier shot him dead. 

Reat’s estate has now sued the 911 operator, citing the state-created-danger doctrine. Under that doctrine, a government officer may be held liable for recklessly creating a known danger for a particular person. Here, however, the Tenth Circuit holds that the 911 operator can’t be held liable because he didn’t violate clearly established law. The state-created-danger doctrine is usually applied when a state actor creates a danger by limiting a citizen’s liberty to act. Here, the Tenth Circuit says that the operator didn’t actually deprive Reat and his passengers of their ability to leave Denver. He just provided totally incompetent advice. Because Reat had the theoretical power to disregard that advice, the operator can’t be held liable.

Eleventh Circuit: the Bankruptcy Code and the Fair Debt Collection Practices Act can coexist

Johnson v. Midland Funding, LLC, No. 15-11240 (11th Cir. May 24, 2016).

In 1977, Congress passed the Fair Debt Collection Practices Act to protect consumers from abusive debt collectors. Under the Act, a debt collector can’t sue or threaten to sue a consumer over a time-barred debt, because unsophisticated consumers probably wouldn’t think of invoking the statute of limitations against that debt. Plus, even if some consumers are more sophisticated, the passage of time might dull their memory or erode their records of the debt—leaving them simply unable to assert a statute-of-limitations defense. 

The question in this appeal is how this prohibition interacts with the Bankruptcy Code. The Code, as the courts have interpreted it, allows creditors to file time-barred claims against a debtor in bankruptcy. But a debt collector that chooses to do this, the Eleventh Circuit has earlier held, violates the Fair Debt Collection Practices Act, because its bankruptcy claim amounts to a threat to sue over a time-barred debt, if not a suit itself. 

The courts reconcile potentially conflicting statutes if at all possible, and here the Eleventh Circuit easily reconciles the Bankruptcy Code and the Fair Debt Collection Practices Act. The Code allows creditors to file time-barred claims, but it doesn’t shield them from any obligations they might have under the Act. And the Act’s obligations, at any rate, apply only to debt collectors—roughly, entities whose regular business it is to collect debts—and not to all creditors. The two legal regimes can coexist.

Seventh Circuit affirms denial of preliminary injunction against Chicago's peddling laws, but leaves their ultimate fate in doubt

Left Field Media LLC v. City of Chicago, No. 15-3233 (7th Cir. May 23, 2016).

Under Chicago law, you cannot peddle any merchandise on the sidewalks immediately surrounding Wrigley Field. You can go across the street to sell magazines, but you can’t do it right outside the stadium. The publisher of a magazine called Chicago Baseball has sued the city, asserting that Chicago’s restrictions on peddling are unconstitutional under the First Amendment.

The district court denied the magazine publisher a preliminary injunction. On appeal, the Seventh Circuit unequivocally upholds one part of Chicago’s restrictions. Because Chicago prohibits the peddling of any merchandise, whether printed or not, this prohibition is “neutral with respect to speech (both the fact of speech and the content of speech).” 

But the publisher also challenges another Chicago law requiring anybody peddling anything on its streets to get a license. It exempts newspapers from this licensure requirement, but not magazines. Reed v. Town of Gilbert, which was issued after the district court had denied a preliminary injunction, may require more intensive scrutiny of this licensing law. What’s more, Chicago’s licensure requirement is personal. Each peddler, rather than merely each employer of peddlers, must obtain a license. The Seventh Circuit notes that this may make it harder for Chicago Baseball to hire the peddlers it wants. 

Despite all of these doubts, however, the Seventh Circuit affirms because the city has never ticketed the publisher and its peddlers for lacking licenses. Plus, it’s not clear whether the city treats Chicago Baseball as a newspaper or a magazine—hence the publisher may lack standing to challenge the licensing requirement at all. But the Seventh Circuit notes that the district court may consider a new request for an injunction should one be forthcoming on remand. The ultimate fate of the licensing requirement is left open.

In a battle between Texas tort reform and the Federal Rules of Civil Procedure, the Rules win

Passmore v. Baylor Health Care Sys., No. 15-10358 (5th Cir. May 19, 2016).

Here’s an interesting case about the relationship between state law and the federal courts. First-year law students learn that state substantive law and federal procedural law govern diversity cases. The distinction between the procedural and the substantive is famously elusive. One might think that a standard of appellate review, for example, is a rule of procedure, but that’s not necessarily true. A state law that seems procedural may well be substantive simply because it promotes certain substantive state policies. 

Texas law, for example, requires plaintiffs in medical-malpractice cases to serve an expert report within 120 days after the defendant files an answer—an extraordinarily early deadline. If the plaintiff misses that deadline, the case must be dismissed. You might think this is purely procedural, but it promotes certain substantive policies that the state of Texas considers important. It gives medical-malpractice defendants early notice of the plaintiff’s claim. It forces plaintiffs to put up or shut up early on in the case, thereby discouraging frivolous litigation (or so the Texas Legislature apparently believes). So you might think that this law applies in federal court.

But, as the Fifth Circuit holds in this case, this analysis ignores the supremacy of federal law. When a federal rule or statute applies to a certain issue, then that rule or statute governs that issue, so long as the issue is being litigated in federal court. This is true even if the issue might be considered a substantive one that would otherwise be governed by state law.

In federal court, Federal Rule of Civil Procedure 26 governs the disclosure of expert reports. It says that those reports generally must be disclosed “at the times and in the sequence that the court orders.” What’s more, Rule 37 dictates the consequences of blown disclosure deadlines. It gives federal district courts discretion about what sanctions to levy against a noncompliant party. Because Rules 26 and 37 put expert-disclosure deadlines and sanctions for late disclosure in the discretion of the district court, it is those rules that govern medical-malpractice litigation in federal court.

Reasonable suspicion, or parking while black?

United States v. Johnson, No. 15-1366 (7th Cir. May 17, 2016).

In Wisconsin, like most places, you can’t park within 15 feet of a stop sign unless you’re loading or unloading passengers. The Milwaukee police saw a car parked within 15 feet of a stop sign. Two police cruisers swooped in, both with all of their lights on. One car pulled up parallel to the parked car, and another pulled up behind. They opened the doors of the parked car and seized the passengers. They found a gun in the car, and one of the passengers—the defendant here—was charged and convicted of being a felon in possession. The question on appeal is whether the police violated the Fourth Amendment.

The majority says that the police had probable cause to believe that the car was violating Wisconsin’s law against parking within 15 feet of the stop sign. This justified the seizure. The police didn’t have to eliminate the possibility that the car was loading and unloading passengers, because probable cause doesn’t require law enforcement to eliminate lawful explanations for what they see.

Anyway, the majority adds, the police certainly met Terry’s less demanding standard of “reasonable suspicion” to stop the car. And once they stopped the car, they saw the defendant, through the now-illuminated car windows, trying to hide a gun. The gun was the fruit of a lawful stop, so it shouldn’t be suppressed.

Judge Hamilton sees things differently. To him, this seems like a purely pretextual stop for parking while black. And he sees no reason to extend Whren (which held that pretextual stops don’t violate the Fourth Amendment) to stops for pure parking violations. 

But Judge Hamilton’s stronger argument, at least under existing law, is that the police simply didn’t have reasonable suspicion. He notes what the majority doesn’t: that the car was parked in front of a liquor store, the driver was absent, and the motor was running. If the police thought this was suspicious, he argues, it’s only because of the neighborhood. And if that is enough by itself, then the police have a license for racial discrimination.

Eighth Circuit affirms dismissal of Tea Party activist's retaliation claim against Nebraska regulators

Bennie v. Munn, No. 14-3473 (8th Cir. May 11, 2016).

A 2010 Tea Party protest in St. Paul, MN (credit: flickr / Fibonacci Blue)

A 2010 Tea Party protest in St. Paul, MN (credit: flickr / Fibonacci Blue)

Robert Bennie, a financial advisor in Nebraska, ran a TV commercial offering prospective new customers $100 toward the purchase of a gun. Outside the office, Bennie was active in the Tea Party, denouncing President Obama in the pages of the Lincoln Journal Star as “dishonest,” a “communist,” and “an evil man.” 

As a broker-dealer, Bennie was overseen by the state of Nebraska, whose financial regulators decided to talk to Bennie about his recent advertising, as well as the newspaper article featuring his comments. Not long after their chat with Bennie, the regulators warned Bennie’s firm that it might take administrative action. 

Bennie then sent out a mass mailing for a seminar on retirement income. The regulators alerted Bennie’s firm, who agreed that the mailing didn’t comply with regulations. The firm later fired Bennie. 

Bennie has sued the regulators, asserting that they violated the First Amendment by retaliating against him for his political speech. There’s certainly some evidence suggesting that the regulators didn’t much like Bennie. They didn’t like how he rode around in a horse in one of his commercials. And they didn’t like what one of them described as Bennie’s “quite polarizing” comments about Obama.

Did this dislike stem from Midwestern resistance to flashiness, or from disagreement with Bennie’s politics? The district court, for its part, thought the regulators were motivated by Bennie’s political speech, at least in part. 

This case can’t end there, though. A First Amendment retaliation claim also requires the plaintiff to prove that the government’s retaliatory actions would have “chilled” an ordinary person from speaking out. And here, the district court found that the Nebraska regulators’ actions wouldn’t have chilled an ordinary person in Bennie’s position from speaking out against Obama’s communist agenda. And so it returned a judgment for the regulators. A majority of this Eighth Circuit panel concludes that the district court’s factual finding wasn’t clearly erroneous, and thus affirms.