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.

Thanks, mom and dad

United States v. Adent, No. 15-3554 (7th Cir. May 10, 2016).

Leonard and Joyce Adent owed the IRS back taxes, so the IRS put liens on the Adents’ property and sought to foreclose on the liens. The Adents’ son, Derek, jointly owned one of these properties with Leonard. Derek was an innocent party. He didn’t owe the IRS any taxes. But the district court still ordered the sale of the property he jointly owned with his dad. 

The Seventh Circuit affirms, holding that the district court acted within its discretion. Derek didn’t actually live on the property, so he won’t be losing his home. He’ll also get his half-interest back when the property is sold. 

The IRS’s interest in collecting back taxes has to win out over the interests of innocent third parties, at least in most cases. If an innocent owner’s interest in a property could prevent IRS foreclosure, scofflaws could evade taxes simply by jointly owning a piece of property with someone else. Still, if you were Derek, wouldn’t you be pretty angry with your parents?

Fourth Circuit clarifies 12(b)(6) standard in a wrongful-arrest case

Goines v. Valley Cmty. Servs. Bd., No. 15-1589 (4th Cir. May 9, 2016).

Gordon Goines has cerebellar ataxia, which affects his coordination and speech but not his intellect. A cable technician came to check out some connection problems that Gaines had reported, and determined that somebody had spliced—that is, stolen—the cable going to Gaines’s home. The technician told Goines to report the theft to the police. 

And that’s just what Goines did. According to Goines, he told the police that his TV was making noises because a neighbor had stolen his cable. The police, without turning on the TV, concluded that Goines was hearing voices, and, over his protests, took him into custody. There he was strip-searched and handcuffed to a table. He was eventually released.

Goines sued the arresting officers for taking him into custody without probable cause for believing he was mentally ill and a danger to himself or others. The district court granted the police officers’ Rule 12(b)(6) motion to dismiss Goines’s complaint.

The question on appeal is whether the district court should have considered a rather partisan document—the arresting officers’ report—in quite the way that it did. Normally courts considering motions to dismiss can consider a document outside the complaint only if it’s integral to the complaint and its authenticity isn’t questioned. Thus, for example, a court can normally consider the text of a contract in a breach-of-contract action, even if the contract isn’t attached to the complaint. In these circumstances, if the outside document contradicts the complaint—if, say, a contract provides for the sale of X widgets while the breach-of-contract complaint alleges it provided for Y—the outside document trumps the complaint. Here, the district court treated the police officers' report in more or less this way.

As the Fourth Circuit notes, though, the outside-document-governs rule can’t possibly be the rule for all outside documents. If it were, a libel case couldn’t possibly get off the ground: the libelous statement in an outside document would then trump a complaint’s denial of the libel’s truth. So the general rule must be that the outside document trumps the complaint if a complaint relies on an outside document for the truth of its contents.

Here, though, Goines wasn’t relying on the arresting officers’ report for the truth of its contents. In fact, he relied on it at times for nearly the opposite purpose: to show that what he told the police officers, and then what the police officers reported, were worlds apart. Goines relied on the report to show that the police officers ignored what he told them, and for that reason lacked probable cause to arrest him. 

When Goines’s allegations themselves are taken as true, the Fourth Circuit holds, they state a valid claim against the arresting officers. The district court’s dismissal of that claim is reversed.

Fourth Circuit dismisses breach-of-lease claim by Zoroastrian Center

Zoroastrian Ctr. v. Rustam Guiv Found. of N.Y., No. 14-1841 (4th Cir. May 4, 2016).

 A bas relief depicting the Roman Emperor Valerian bowing down before Emperor Shapur of Persia. Valerian was taken prisoner after the Battle of Edessa. His ultimate fate is disputed.

A bas relief depicting the Roman Emperor Valerian bowing down before Emperor Shapur of Persia. Valerian was taken prisoner after the Battle of Edessa. His ultimate fate is disputed.

I, the Mazda-worshipping lord Shapur, king of kings, whose lineage is from the Gods, son of the Mazda-worshipping divinity Ardashir, king of kings, whose lineage is from the Gods, grandson of king Papak, am ruler of Iranshahr. . . . 

When at first we had become established in the empire, Gordian Caesar raised in all of the Roman Empire a force and marched against us. On the border of Babylonia a great frontal battle occurred. Gordian Caesar was killed. . . . And the Romans made Philip Caesar. Then Philip Caesar came to us and became tributary to us. . . . 

And Caesar lied again and did wrong to Armenia. Then we attacked the Roman Empire and annihilated at Barbalissos a Roman force of 60,000, and Syria and the environs of Syria we burned, ruined, and pillaged. . . . 

– From the Res Gestae Divi Saporis, ca. AD 260 (slightly altered). 

Zoroastrianism was the religion of ancient Persia, ruled in the third century by the Sassanian dynasty, whose scion, Shapur, gloried in his accomplishments in the inscription quoted above. Zoroastrianism is still practiced—most notably by the Parsis, a community descended from Persian refugees who fled to India after the Arab conquest. 

Zoroastrianism is also practiced in America. Here, the Zoroastrian Center leased land in Virginia from the Rustam Guiv Foundation for 99 years at a rate of one dollar a year. These favorable terms perhaps stem from the fact that both entities are dedicated to advancing Zoroastrianism. In any event, the parties also agreed that the Center would start building a religious center on the property by a date certain and complete it within three-and-a-half years. But the Zoroastrian Center didn’t meet the deadlines, and the Rustam Guiv Foundation terminated the lease. The Center sued for breach. 

The district court dismissed the suit on summary judgment, and the Fourth Circuit now affirms.

Summary judgment can’t be granted when there’s a genuine dispute about a material fact. This case shows how important that it is that the disputed fact actually be material. The Zoroastrian Center points to genuine disputes over certain facts: who drafted an amendment to the lease, for example, and whether a particular witness was credible. These facts don’t actually make a difference, though; what matters is that the Zoroastrian Center clearly didn’t abide by the written terms of the lease. Nor can the Center claim equitable estoppel, because it didn’t detrimentally rely on anything that the Rustam Guiv Foundation said.

Policeman arrests the people who are cleaning up his foreclosed house; the Eleventh Circuit helpfully confirms that laws apply to the police, too

Carter v. Filbeck, No. 15-12529 (11th Cir. May 3, 2016).

The first paragraph of the Eleventh Circuit’s opinion tells you all you need to know about this case, which features a police officer who arrested the men preparing the officer’s foreclosed house for resale:

Defendant-Appellant Timothy Filbeck was a lieutenant with the Butts County Sheriff’s Office. When his house was foreclosed upon, he, like anyone else who has been through foreclosure, had certain options available to him. But arresting the new owner’s agents, Plaintiffs-Appellees David Carter, Clayton Graham, Jr., and Mitchell Webster, who were lawfully performing their jobs, was not one of them. And neither was ordering Plaintiffs handcuffed and thrown in jail overnight. We think that should go without saying. Yet Filbeck did these things, anyway. Now Filbeck tries to convince us that he is immune from suit. We are not persuaded. Being a law-enforcement officer is not a license to break the law. And it is certainly not a shield behind which Filbeck may abuse his power with impunity.

Prison's ban on beards and caps violated Muslim prisoner's rights, rules Fifth Circuit

Ali v. Stephens, No. 14-41165 (5th Cir. May 2, 2016).

 An observant Muslim wearing a kufi, also called a taqiyah. Many Muslims believe that Muhammad's sayings enjoin them to wear kufis. (Credit:  Neil Moralee / flickr .)

An observant Muslim wearing a kufi, also called a taqiyah. Many Muslims believe that Muhammad's sayings enjoin them to wear kufis. (Credit: Neil Moralee / flickr.)

David Rasheed Ali, a Texas prisoner and observant Muslim, was forbidden to wear a kufi and a four-inch beard, both of which are required by his religious beliefs. Believing these prohibitions violated his rights under the Religious Land Use and Institutionalized Persons Act, or RLUIPA, he sued the warden of his prison. After a trial, the district court ruled in Ali’s favor, finding that the warden’s bans on religious headwear and four-inch beards violated RLUIPA because they didn’t further a compelling interest in the least restrictive way.

The warden has appealed, arguing that his bans further several compelling interests. The bans prevent inmates from storing contraband in their beards or under their hats. They allow prison guards to identify inmates readily—and also allow outsiders to identify inmates if they escape, because, as in The Fugitive, you can alter your appearance radically just by shaving off your beard. The bans, according to the warden, also make running the prison less expensive and complicated. 

Deferring to the district court as the factfinder, the Fifth Circuit disagrees with the warden and affirms—at times, it seems, with some reluctance. 

The district court found that guards can search beard hair for contraband as easily as they do head hair—and the prison doesn’t ban head hair, so why does it have to ban Ali’s beard? The same goes for a kufi: the prison can just search under it for contraband. As for in-prison identification, a kufi makes prisoners more distinguishable, not less. If the prison is concerned about Ali’s beard obscuring his identity, the prison should just make sure that his identification photo displays him with a beard. And, while shaving a beard can help an escaped inmate elude the authorities, so can many other things, too. Shaving one’s head after an escape would help too—and, to repeat, the prison doesn’t make prisoners shave their heads. The Fifth Circuit also affirms the district court’s finding that the increase in expense to the prison is minimal and cannot justify the bans on Ali’s beard and kufi.

Knot, meet sword

Bell v. McAdory, No. 15-1036 (7th Cir. Apr. 29, 2016).

 Detail from the “Alexander Mosaic” in Pompeii ( credit: Wikimedia Foundation )

Detail from the “Alexander Mosaic” in Pompeii (credit: Wikimedia Foundation)

The federal rules governing when to file a notice of appeal can tie even lawyers up in knots. All the more easily can they tie up pro se litigants, like the plaintiff in this case. And these rules are supremely important. A late notice of appeal deprives a U.S. Court of Appeals of jurisdiction, no matter how weighty the excuse for lateness

The plaintiff here, who is a civilly committed sexual offender, asserts that the facility that is housing him violated his due-process rights by forcing him to spend eight days naked and shivering in a drafty infirmary. The district court entered judgment in favor of the defendants, which triggered the 30-day clock to file a notice of appeal. One day after that 30-day period had ended, the plaintiff filed a motion that the district court treated as a motion for relief from judgment under Rule 60(b). While that kind of motion normally postpones the time for appealing, the plaintiff’s motion was itself late, and a late Rule 60 motion can’t postpone the notice-of-appeal clock. Even so, a denial of a late Rule 60 motion is separately appealable—and, when the district court denied the motion, the plaintiff here timely appealed that denial. 

The problem is that the plaintiff here isn’t challenging the denial of the Rule 60 motion—he’s challenging the underlying judgment, and he’s too late to do that. What can the Court of Appeals do? 

The Seventh Circuit, speaking through Judge Easterbrook, points out that the rules allow a district court to extend the 30-day notice-of-appeal period if the would-be appellant asks for such an extension within 30 days after the unextended notice-of-appeal period ends. (Got that?) And the district court could have treated the plaintiff’s Rule 60 motion as a request for just such an extension. So the court of appeals cuts the Gordian knot by remanding the case for the district court to consider whether to grant an extension, which can run until 14 days after the district court rules on the request for an extension. And now the plaintiff has appointed counsel. Hence, if the district court grants the extension, his counsel will no doubt be sure to appeal on time. 

The Seventh Circuit also takes the opportunity to throw serious doubt on the merits of the district court’s judgment. And it points out that if the district court, on remand, wants to reconsider that judgment, it is free to do so.

Eleventh Circuit gives Hardbody Harrison an opportunity to prove that his judge was racist and brain-damaged

Norris v. United States, No. 15-10390 (11th Cir. Apr. 25, 2016).

Jack Camp was a federal district court judge in Georgia. The FBI suspected Camp, then in his late 60s, of committing drug crimes with Sherry Ann Ramos, whom Camp was also paying for sex. 

Camp thought Ramos’s black boyfriend was taking advantage of her. This, he told her, made it hard for him to sentence other black men who he thought were taking advantage of white women—particularly the pro wrestler “Hardbody” Harrison Norris, who was convicted of forcing women into prostitution and whom Camp sentenced to life imprisonment. Black men pimping out white women burned him up, Camp told Ramos, and he couldn’t help but want to give them life in prison.

Eventually, Camp was convicted of drug and gun crimes. To argue that he should get a light sentence, his lawyers told the court that he had suffered a brain injury in a bike accident and was bipolar. (He ended up with 30 days in prison and 400 hours of community service.)

Norris has now brought a collateral challenge to his conviction and sentence, arguing that his due process rights were violated by Camp’s racial bias and mental incompetence. The district court denied Norris even an evidentiary hearing. The Eleventh Circuit now reverses, saying that Norris’s allegations of bias and mental incompetence justify an evidentiary hearing. Whether Norris will actually be able to prove bias and incompetence is left to the district court on remand.

ERISA burden shifting

Estate of Barton v. ADT Sec. Servs. Pension Plan, No. 13-56379 (9th Cir. Apr. 21, 2016).

Bruce Barton asked the ADT Security Services Pension Plan for pension benefits. His eligibility for benefits depended on whether he met a couple of conditions. In the first place, he had to have worked for companies whose employees were eligible to get pension benefits through the plan. Second, he must have earned vested benefits by working at least 1000 hours per year for those companies.

The pension plan denied Barton benefits because it believed he hadn’t shown that he met those two conditions. The district court agreed, ruling that Barton hadn’t carried his burden of proof. 

The majority of this Ninth Circuit panel holds that the district court put the burden on the wrong party. A pension plan is in a much better position than a retiree to figure out whether the retiree’s employers participated in the pension plan. It is the pension plan that admits employers to participation in the first place. It’s also unreasonable, the Ninth Circuit adds, to require employees to prove that they worked a certain number of hours per year. The employer should keep those records, and if it doesn’t—well, that’s the employer’s fault, not the employee’s. The burden of proof should have been on the plan and the plan sponsor, not on Barton’s estate. The case is remanded for the district court to apply the correct burden of proof. 

Judge Ikuta dissents, arguing that this burden shifting conflicts with the deference that’s usually given to a pension plan’s benefit determinations. Perhaps I’m misunderstanding her argument, but I’m inclined to disagree. It’s true that federal courts generally defer to benefit determinations, but pension plans cannot violate ERISA itself. If the pension plan here denied Barton benefits because he purportedly hadn’t met his burden of proof, then the plan simply violated ERISA—or rather, the “federal common law of rights and obligations” built up around ERISA. That law, as the Ninth Circuit now holds, puts the burden of proof on the plan, and not on Barton.

A ski resort's ban on snowboarders isn't state action

Wasatch Equality v. Alta Ski Lifts Co., No. 14-4152 (10th Cir. Apr. 19, 2016).

 Not a victim of a civil rights violation ( credit: G Morel / flickr )

Not a victim of a civil rights violation (credit: G Morel / flickr)

The U.S. Forest Service has allowed a ski resort to operate within a National Forest. That ski resort bans snowboarders. Does that ban count as state action, thereby allowing snowboarders to argue that it denies them equal protection of the law? Nope.

Does an invalid appointment under Article II mean no standing under Article III?

Consumer Fin. Protection Bureau v. Gordon, No. 13-56484 (9th Cir. Apr. 14, 2016).

Back in 2012, President Obama invoked his power to make recess appointments when he tapped Richard Cordray to head the CFPB without getting the Senate’s confirmation. Noel Canning has now confirmed that the President lacked that power, so Cordray’s recess appointment was a nullity. 

Cordray was later confirmed by the Senate. The significant fact for present purposes, though, is that the CFPB lacked a lawful head in 2012, when it instituted this enforcement suit against Gordon, a lawyer providing mortgage-modification services.

Did the headlessness of the CFPB deprive the agency of Article III standing to bring this suit? 

The argument for lack of standing goes like this. While the executive branch has the power to enforce the law, other litigants cannot use the machinery of the federal courts simply to ensure that the law is obeyed. Without a concrete injury, those litigants lack standing. Here, without an executive-branch official to head it, the CFPB was a creature of congressional legislation, not presidential appointment, and hence lacked the executive branch’s unique power to take care that the laws be faithfully executed. And because the CFPB was not in the executive branch, it had no standing to bring the present suit. This is the position that Judge Ikuta takes in dissent.

The majority of this Ninth Circuit panel sees things differently. Congress has provided that the CFPB itself is part of the executive branch—and, in any case, the problems with Cordray’s recess appointment under Article II do not deprive the federal courts of jurisdiction under Article III. 

Second Circuit certifies novel copyright issue to New York Court of Appeals (updated 6/9/16)

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 15-1164-cv (2d Cir. Apr. 13, 2016). 

Judge Guido Calabresi has argued that federal courts should certify questions of state law to state courts more often than they do. Here, joined by two of his colleagues, he certifies an interesting issue of New York law to that state’s highest court.

The owner of the Turtles’ recordings has sued Sirius for copyright infringement—not under federal law, but under the common law of New York. The owner is asserting that Sirius violated its rights under the common law of New York by broadcasting the Turtles’ pre-1972 recordings without payment or permission. But why isn’t the owner suing under federal law, and why is it suing over pre-1972 recordings? That’s because federal law didn’t protect sound recordings—as opposed to musical compositions—until 1972. And it still doesn’t protect recordings created before 1972. Pre-1972 recordings can seek protection only from state law.

But what sort of protection does New York law afford to owners of sound recordings? Specifically, if you perform the recordings publicly, as Sirius does, do you have to get a license from the owner? There isn’t an obvious answer to this question. Copyright law has long distinguished between rights in musical works or compositions, on the one hand, and rights in sound recordings, on the other, and it has generally given more protection to the former than the latter. New York courts have yet to address the question, the answer to which has potentially huge implications. So the question is certified to the New York Court of Appeals. If that court accepts certification and issues an opinion, I’ll be sure to post an update.

UPDATE (6/9/16): Last month, the New York Court of Appeals accepted the certified question.

Somebody other than Donald Trump suffers from delusions about Mexican gangsters

United States v. Argueta-Rosales, Nos. 14-50384, 14-50385 (9th Cir. Apr. 12, 2016).

Omar Argueta is a Mexican national who was deported from the United States in his teens. Addicted to meth and having suffered a beating at the hands of Mexican gangsters, Argueta began to believe his life was in danger. He decided to cross the border into California. He vaulted over a fence and was walking casually away when a border patrol agent called out to him. Argueta approached the agent, who told him to return to Mexico. When Argueta didn’t do that, he was put under arrest, telling the agent to do what he had to do. 

Later, in a jail interview, Argueta claimed he was afraid of persecution in Mexico, and then began referring to people who were in his cell with him. The problem is that he wasn’t sharing a cell with anyone. A court-appointed psychologist later testified that Argueta was delusional.

Argueta was charged with attempting to reenter the United States unlawfully. He was convicted after a bench trial. The question in this appeal is whether a man who crosses the border under the spell of a paranoid delusion—here, a delusion that he was in immediate danger of being knocked off by gangsters—can be convicted of attempted unlawful reentry. 

Under Ninth Circuit precedent, it’s not enough that Argueta knew he was crossing the border without permission. To be convicted, he also had to have crossed the border without the principal purpose of being taken into government custody. (As an example of somebody who would not face conviction, imagine a refugee who illegally enters the country and immediately goes to DHS, asking for asylum.) Because there’s conflicting evidence on what Argueta’s principal purpose was—he didn’t exactly flee from the border patrol—the conviction is vacated. 

Judge Bybee, concurring, urges the court to overturn the earlier precedent under which Argueta’s conviction has now been vacated. The panel majority devotes the last section of its opinion to responding to his arguments. 

Prairie potholes

Foster v. Vilsack, No. 14-3887 (8th Cir. Apr. 11, 2016).

 A prairie pothole in North Dakota ( credit: flickr / Justine Meissen )

A prairie pothole in North Dakota (credit: flickr / Justine Meissen)

Ever heard of the “Prairie Pothole Region”? I hadn’t— at least not before reading this opinion. The region covers parts of the upper Midwest and ranges north into the Prairie Provinces. The “prairie potholes” that define this region are shallow depressions carved out during the last ice age. They fill with water for portions, and sometimes all, of the year. Prairie potholes can serve as ecologically important wetlands, and Congress has protected them by ensuring that farmers can’t receive federal farm-program payments if they convert USDA-designated wetlands into crop land.

This appeal asks whether the USDA properly designated an acre-sized prairie pothole on Arlen and Cindy Foster’s South Dakota farm as a protected wetland that the Fosters can’t farm without losing federal aid. Looking at the administrative record and giving due deference to the USDA, the Eighth Circuit rules that the USDA did indeed properly designate the Fosters’ prairie pothole as a wetland.

Fit of reactionary pique leads to grant of mandamus

In re Conde Vidal, No. 16-1313 (1st Cir. Apr. 7, 2016).

In 2014, a reactionary district court judge dismissed the claims of plaintiffs challenging Puerto Rico’s ban on same-sex marriage. After Obergefell, the First Circuit vacated that dismissal and remanded, noting that it agreed with the parties that the ban was unconstitutional. 

Then, after the parties jointly moved to enter judgment in favor of the plaintiffs, the same district court judge refused. He issued a self-indulgent 10-page order that began by quoting a nineteenth-century Supreme Court opinion extolling “the union for life of one man and one woman in the holy estate of matrimony.” The order asserted that the Fourteenth Amendment didn’t fully apply in Puerto Rico, so Obergefell didn’t control. 

This order wasn’t immediately appealable, since the district court had declined to enter a final judgment. So, instead of appealing, the plaintiffs (joined ultimately by Puerto Rico itself) sought a writ of mandamus from the First Circuit. The First Circuit now grants the writ: “The district court’s ruling errs in so many respects that it is hard to know where to begin.” Most importantly, it flouted the First Circuit’s mandate, which had told the district court that Puerto Rico’s ban was unconstitutional. So the district court’s ruling is overturned and the case is remanded with directions to assign the case to a different, and presumably less willful, judge.

Washington Court of Appeals rejects negligence claim against tattoo parlor

Chester v. Deep Roots Alderwood, LLC, No. 73225-1-I (Wash. Ct. App. Apr. 4, 2016).

Anna Chester got a tattoo. Unbeknownst to either Chester or the tattoo parlor, though, some of the ink had been contaminated during manufacture. As a result, Chester suffered a serious bacterial infection, the infection caused her kidneys to fail, and Chester now requires dialysis. Chester sued the tattoo parlor for negligence.

Chester asserts that the parlor was negligent because it violating a Washington regulation and statute requiring the use of sterile ink. Washington has mostly abolished the doctrine—usually dubbed negligence per se—under which negligence may be committed merely by violating certain statutes or regulations. It has carved out an exception, however, for statutes or regulations about the sterilization of needles and instruments used in body art and tattooing: violating those statutes or regulations can count as negligence per se. As the Washington Court of Appeals sees it, however, no Washington statute or regulations actually requires sterile ink (as opposed, say, to sterile tattoo needles). No regulatory violation, no negligence per se.

Chester argues, as an alternative path to victory, that she’s made out a claim for plain-vanilla negligence. The Washington Court of Appeals rejects this argument, too. Sterile ink is not industry-standard. While some ink makers have claimed their ink is sterile, studies have undercut their claims. Because Chester hasn’t shown that truly sterile ink was readily available to the tattoo parlor, her negligence claim is rejected.

Radical jurisprudence

Mustoe v. Ma, No. 74166-7-I (Wash. Ct. App. Apr. 4, 2016).

 “Rooted” (credit:  Kit / flickr )

“Rooted” (credit: Kit / flickr)

A pair of Douglas firs stood on Jennifer Mustoe’s property, close to the line separating Mustoe’s property from that of her neighbors, Xiaoye Ma and Anthony Jordan. Jordan dug a ditch on his property near the property line, and in the process exposed about half of the Douglas firs’ roots, which had protruded into Ma and Jordan’s property. Jordan then removed these exposed roots with a chainsaw. With the roots removed, the trees (valued at $16,000) now posed a high risk of falling onto Mustoe’s house, so she had them cut down for about $4,000. 

Mustoe sued Ma and Jordan for negligently removing her trees. The Washington Court of Appeals now holds that Ma and Jordan owed no duty to Mustoe to prevent damage to her trees. It sees this case as not much different from a case in which tree branches protrude into a neighbor’s property. In that sort of case, it’s well established, the neighbor may remove the protruding branches. So, too, the neighbor may remove protruding roots. 

It’s certainly true that a neighbor may remove protruding branches. But it’s also true that he may not cut down the tree itself. If a neighbor removes enough protruding roots so that the tree can’t safely stand—which appears to be what happened here—isn’t that more like removing the tree itself? 

At any rate, if Mustoe and Ma had known what their property rights were ahead of time, perhaps they could have bargained about them (Mustoe pays a thousand dollars to Ma in exchange for not digging a ditch, for example). But we aren’t living in a Coasean world. 

Poisoning and punitives

Lompe v. Sunridge Partners, LLC, No. 14-8082 (10th Cir. Apr. 1, 2016).

The plaintiff, Amber Lompe, was poisoned by carbon monoxide emanating from her apartment building’s malfunctioning furnace. She survived, but now suffers from a number of neurological problems. She sued her apartment building’s owner and its property manager, asserting tort claims under Wyoming law. 

At trial, evidence suggested that carbon monoxide problems had repeatedly shown up earlier, and that the building’s furnace-maintenance program was subpar. Also, only about half of the apartments had working carbon-monoxide detectors. As for Lompe herself, she had thrown away her detector after she had replaced the batteries and it still didn’t work.  

The jury awarded $2.7 million to Lompe in compensatory damages and $25.5 million in punitives. The jury assessed most of its award against the building manager rather than the building owner. 

On appeal, the Tenth Circuit holds that the evidence at trial was insufficient to show that the building owner was “willful and wanton,” the standard for awarding punitive damages under Wyoming law. It upholds the award of punitive damages against the building manager, but holds that the amount of punitive damages was unconstitutionally excessive. It reduces that amount to $1.95 million, equal to the compensatory damages the jury assessed against the building manager. 

Judge Bacharach dissents. He would hold that the evidence was sufficient for the jury to award punitive damages against the building owner, and would reduce the punitives only to $7.8 million, four times the amount of compensatory damages.

ABC films a dying man without consent; New York court upholds widow's claim against hospital, rejects her claim against ABC

Chanko v. Am. Broad. Co., No. 44 (N.Y. Mar. 31, 2016).

 New York-Presbyterian Hospital (credit:  flickr / ecksunderscore )

New York-Presbyterian Hospital (credit: flickr / ecksunderscore)

While crossing a street near his home, Mark Chanko was hit by a sanitation truck. He was rushed to New York-Presbyterian Hospital, where he died less than an hour after he had arrived. 

Sixteen months later, Mark Chanko’s widow, Anita, was watching an ABC documentary on New York-Presbyterian. She saw a surgery resident she recognized as the doctor who had treated her husband. The doctor was responding to an accident; a man had been hit by a truck. Then she saw a man on a stretcher, his face blurred out, moaning in pain and asking where his wife was. And she saw the doctors pronounce him dead. 

Ms. Chanko immediately recognized this man as her husband. ABC had never asked her or anybody in her family for permission to broadcast her husband’s last moments.

She sued New York-Presbyterian for breaching physician-patient confidentiality, and sued ABC for intentional infliction of emotional distress, also called the tort of “outrage.” The New York Court of Appeals says her claim for breach of patient confidentiality may proceed, but that her claim for outrage must be dismissed. The law sets a high bar for the “extreme and outrageous conduct” that must serve as the basis for a claim of outrage, and here that bar isn’t met. Yes, what ABC did “would likely be considered reprehensible by most people.” But it also blurred Mr. Chanko’s image, didn’t name him, and the scene lasted less than three minutes. Although the court doesn’t mention it, this ruling allows it to avoid the potential First Amendment issues that lurk in the background of this case.

God help us if all politics are local

Van Liew v. Stansfield, No. SJC-1906 (Mass. Mar. 30, 2016).

Roland Van Liew was running to be a selectman for Chelmsford, Massachusetts. Colleen Stansfield, a member of the local planning board, decided to attend a Van Liew campaign event at the town library. This may not have been the greatest idea, since Van Liew was Stansfield’s sworn enemy. Once, Van Liew had called Stansfield up and called her uneducated and stupid. He had sent out mailings labeling her a corrupt liar, a charge he had repeated during a recent recall election. Now, at the library event, Stansfield approached Van Liew. There ensued an argument that ended with Van Liew yelling, “You sent an anonymous letter to my wife and I’m coming after you.” 

Stansfield sought and was granted an ex parte anti-harassment order against Van Liew. The order required Van Liew not to harass or contact Stansfield—and not even to write emails, or blog, or disseminate any document about her, which seems obviously unconstitutional. Two weeks later, at a full hearing that Van Liew attended, the court found no harassment and vacated the order. 

Van Liew then filed this lawsuit, which alleges that Stansfield had no basis for filing an anti-harassment suit against him and asserts claims for malicious prosecution and abuse of process. Stansfield moved to dismiss the complaint under Massachusetts’ anti-SLAPP law, and the trial court granted her motion.

But the trial court should have granted Stansfield’s anti-SLAPP motion only if Van Liew has failed to show that Stansfield’s anti-harassment lawsuit lacked any arguable merit. And this question, in turn, depends on whether Stansfield could reasonably have thought that Van Liew had “harassed” her under Massachusetts law. 

Because of First Amendment concerns, Massachusetts courts have limited harassment-by-words to two categories only. First, there are fighting words, direct personal insults that’ll probably cause a fight: some guy at a bar comments on your mother’s sexual proclivities. Second, there are true threats, which are direct or not-so-veiled threats of imminent physical harm: “That’s a nice store you have; it’d be terrible if something happened to it.” To commit harassment under Massachusetts law, you have to commit three or more discrete acts of harassment. 

Even if the encounter in the library counted as harassment, nothing else Van Liew did remotely qualified as either fighting words or a true threat. Because he did not commit three acts of harassment, Stansfield’s anti-harassment lawsuit lacked all merit, and the Supreme Judicial Court rules that the trial court should have denied the anti-SLAPP motion.