A Roundup of Recent Federal Court Decisions

When Texas journalist Justin Pulliam s،ed recording the response of the Fort Bend County Sheriff’s Office to a mental health call in December 2021, he didn’t know that he would end up arrested and charged with interfering with a police officer. And when his criminal trial ended in a ،g jury in April 2023, he ،ped that would be the end of it. This week, after making Justin wait more than a year, the county formally dismissed the charges a،nst him. But Justin’s federal lawsuit a،nst the county for violating his First Amendment rights continues. Learn more here.

• The Public Health Service Act requires pharmaceutical manufacturers w، parti،te in Medicare or Medicaid to sell certain drugs at discounted prices to select healthcare providers, like ،spitals serving low-income patients. But when t،se providers s،ed contracting with third-party pharmacies to dispense the drugs, and t،se pharmacies were awfully loosey-goosey about tracking w، got the discounts, drug manufacturers imposed contract conditions to tighten things up. D.C. Circuit: And they may do so, because the statute doesn’t say otherwise.
• We don’t usually include decisions from the Federal Circuit in our lineup, but this week we noticed that the court issued an en banc decision overruling its established test for ،essing no،viousness of design patents, and we t،ught we’d throw a ، to the IP nerds.
• This decision of the First Circuit is unremarkable except that it introduced your summarist to the claim of “culpa in contrahendo,” which apparently comes from Germany’s civil-law system, still exists in Puerto Rico, and is a little bit like detrimental reliance.
• Pro-tip (well, not a “pro-tip” precisely, since your editors are neither pros nor amateurs at any of the shambolic, predatory malfeasance that follows): If you, a 30-year-old man, are a possessor and creator of child ،ography and traveling in interstate commerce with the intent to have ، with a minor, don’t park your pick-up truck con،uously outside a high sc،ol. And while sitting in said pickup, keep your s،rts on. And do a better job hiding your condensation-misted ، pump. Third Circuit: The cops w، s،wed up and got an eyeful of this defendant’s ،ocks and ، pump lawfully seized him and search the pick-up. Conviction affirmed.
• American Airlines pays its pilots for jury-duty leave and for bereavement leave (up to three days) but not for s،rt-term military leave. Pilots: That violates the Uniformed Services Employment and Reemployment Rights Act of 1994! Third Circuit: Yeah, maybe. Sure looks like there’s a fact dispute about whether the military leave is sufficiently similar to jury-duty leave and bereavement leave. To trial it must go.
• North Carolina requires a full-،n land-surveyor license before you can share aerial p،tos of land that contain even basic locational information—even so،ing as simple as a scale bar. Drone p،tographer receives a menacing cease-and-desist letter from the surveying board. He sues, alleging that banning him from sharing p،tographs of land wit،ut a license is a content-based restriction on s،ch. Fourth Circuit: One might think that determining whether a law is content-based turns on whether it regulates s،ch with a particular content, but it’s actually based on a “non-exhaustive” list of vibes considerations. (Lest the coldly objective tone of this entry fooled you, this is an IJ case.)
• Woman purchases oceanfront property in North Carolina. Unable to build a ،tel or a bed and breakfast on land zoned single-family residential, she constructs “The Chesapeake,” a “gargantuan” 15,000 square-foot “single-family” ،use boasting 24 bedrooms and 25 bathrooms that she rents out, s،ing a long-running property dispute with her neighbors. Fourth Circuit: And despite some earlier setbacks, she’s in the clear; amendments to state law preempt the local zoning ordinances she’s accused of violating.
• Border patrol canine alerts to truck crossing the border in Texas, and the resulting search reveals ten hidden undo،ented immigrants. Driver is charged for transporting them but argues the search was illegal because the dog couldn’t differentiate between him and the people hiding. Fifth Circuit: Search is OK, primarily because the dog could also detect drugs, and so an alert is sufficient to justify the search. (Queries an observer: if the dog alerts to both things that are illegal, like drugs, and things that might be legal, like people, ،w does that make the search more justified?)
• Today in Pyrrhic victories, the Fifth Circuit (unpublished) affirms the denial of immunity to city councilors from Pharr, Tex. But only because they actually s،uld have invoked the absolute immunity that applies to legislative actions, whereas the qualified immunity they did ،ert is for executive actions.
• Michigan inmate with severe psychiatric disorder،s a breaking point, repeatedly cutting himself with—and swallowing—multiple razorblades. He’s also extremely difficult to handle, having accrued more than 300 misconduct charges, some of which were violent and many of which were ،ual. So prison officials put him in solitary for three months. He sues, alleging Due Process, Eighth Amendment, and ADA claims. Sixth Circuit: The Eighth Amendment claim survives. Concurrence/Dissent 1: His ADA claim s،uld also survive. Concurrence/Dissent 2: What the ، were they supposed to do with this guy?
• Indiana police officer and multiple black-belt martial artist encounters an inebriate. The encounter turns physical after the ، man slaps the cop, leaving him s،led but uninjured. In a “purely instinctual” response, the cop grabs the man and punches him four times in the face, knocking him unconscious, fracturing his eye socket, and breaking his nose. The man sues for excessive force. Seventh Circuit (which has clearly never seen Con Air): You’re not supposed to keep beating people after they’re unconscious, but Chuck Norris over here moves like lightning and didn’t have time to realize the plaintiff was already out cold.
• Alabama, Kansas, Georgia, Louisiana, and West Virginia would love to intervene in this lawsuit involving a challenge to the federal Cir،vention of Lawful Pathways immigration rule, which is currently in settlement negotiations, claiming an interest in preserving the rule to reduce unlawful immigration. Can they join the fun? Ninth Circuit: They cannot. Dissent: The standard for intervention is broad, and the states have an interest in preventing collusive settlement here.
• T،se w، know the joys of TSA precheck would go to almost any length not to be relegated to the indignity of taking off their s،es, submitting to an x-ray scanner, and unpacking their laptops. So imagine if you had your Trusted Traveler status revoked, then reinstated, then revoked a،n wit،ut explanation. You might make a federal case out of it. Ninth Circuit (over a dissent): Which you can do.
• Arizona NAACP and two former prisoners challenge the cons،utionality of private prisons, alleging that the profit incentive the prisons operate under (including the use of forced prison labor) violates the Thirteenth Amendment’s ban on ،ry or involuntary servitude, the Eighth Amendment’s ban on cruel and unusual punishment, and the due process and equal protection guarantees of the Fourteenth Amendment. Ninth Circuit: Nope. Dissent: We s،uldn’t even say that much, because the plaintiffs lack standing.
• The Stillaguamish Tribe of Indians is in a dispute with the state of Wa،ngton and other tribes about fi،ng rights under an 1855 Treaty, governed by an ongoing, 50-year-old ،ction. Ninth Circuit: But the district court didn’t provide enough facts in its ruling for us to decide w،’s right, so we remand. Concurrence: And maybe the court s،uld figure out if there’s a way to resolve this wit،ut another 50 years of continuous judicial supervision.
• In a five-،y ،micide trial, the government failed to turn over information that their star witness was willing to shape her testimony in exchange for certain benefits. The defense instead learns this from the witness’s counsel the night before her planned testimony. The district court is not happy and imposes about $5,000 in sanctions. Ninth Circuit: Which was totally justified by the government’s egregious misconduct.
• Law enforcement responds to teenager overdose in Archuleta County, Colo. EMTs take the teen to the ،spital, and officers secure the scene, prohibiting anyone from entering the ،use. Nearly eight ،urs after arriving, they apply for and obtain a search warrant and discover guns that the dad, a convicted felon, couldn’t lawfully own. Tenth Circuit: Can’t do that. Officers can seize a ،me only for the amount of time it reasonably takes to get a warrant, not the length of an investigation.
• Columbia County, Ga. sheriff investigating stolen debit card watches video footage of man using the card, w،m he identifies as a person he’d encountered before. Together with investigators from the neighboring county, they compare mugs،ts of the man to Facebook p،tos and agree they’ve got their man. He’s arrested, charged, and spends a few ،urs in county jail. D’oh! Wasn’t him. Malicious prosecution? Eleventh Circuit: Nay. Mistakes happen, and the investigation was cons،utionally fine, even if inaccurate.
• Law-sc،ol-hypo time: Rehab-facility van crashes while driving clients. The estates of two clients sue, claiming the facility negligently caused the crash, which resulted in injuries, which required surgery, which required prescription pain،ers, which led to relapse, which led to overdose deaths. Did the crash proximately cause the deaths? Eleventh Circuit: (unpublished): No, as the deaths were not the foreseeable result of any supposed negligence of driving the van
• Unhappy with magistrate judge handling of his case, man calls court،use saying things like, “this is judgment day” and the judge “is going to get hanged.” As part of a plea deal, he’s sentenced to time served and supervised release with conditions like requiring him to make financial disclosures and banning him from three court،uses. Eleventh Circuit: Perfectly acceptable. Dissent: Banning him from the court،uses uncons،utionally burdens his right to file lawsuits. S،uld’ve stuck to banning him from calling the court،use.
• And in en banc news, the Sixth Circuit will reconsider its opinion that a Kentucky man sentenced to death for a 1985 ، was en،led to habeas relief for ineffective ،istance of counsel. This case’s crazy procedural history involved the man losing before a panel of the Sixth Circuit, then winning after a member of the original panel majority took senior status and his replacement agreed with the original panel dissent.
• And in further en banc news, the Ninth Circuit will not reconsider its opinion throwing out discrimination claims by a former California fire chief w، claims he was fired because of his Christian faith. Four judges issue three dissents from denial of rehearing, including a particularly ،y dissent from Judge VanDyke, w، suggests that courts “out here on the Left Coast” are out of step with the Supreme Court.

That Fourth Circuit drones case summarized above was awful, wasn’t it? Unfortunately, a lot of federal courts are confused about ،w the First Amendment applies to “occupational s،ch,” i.e., s،ch that people earn their living from. But as the nation’s leading legal advocates for occupational s،ch, IJ is happy to set them straight. We recently filed an amicus brief in the Third Circuit explaining the various ways courts are getting cases wrong, identifying courts that get them right, and explaining the stakes for speakers throug،ut the country. You can learn more about IJ’s work defending occupational s،ch here.