A collection of significant and strange cases decided by the federal courts of appeals this week. Each summary delivered in a minute or less: seven cases, seven minutes. On the docket this week was housing in Oakland, free speech, Title IX, and magic mushrooms.
1. Ninth Circuit upholds Oakland’s tenant relocation assistance measure.
A tenet of the landlord-tenant relationship is the promise of quiet enjoyment. The landlord allows the tenant to enjoy the property in peace and quiet and without the landlord’s interruption—for a specified length of time, of course. Oakland, CA seeks to deter landlords from abruptly cutting that time short. Oakland generally requires landlords to pay tenants a fee if the landlord evicts the tenant because the landlord (or a relative) wants to move in. This “relocation fee” ranges from $7,500 to $14,000 depending on the size of the property and the socioeconomic status of the tenant. Is this fee an unconstitutional taking, exaction, or seizure of landlords’ property? Ninth Circuit panel: No, no, and no. The fee isn’t a taking; it’s a regulation of the landlord-tenant relationship. The fee isn’t an exaction, for it’s not a condition to a government benefit. And the fee isn’t a seizure, for Oakland hasn’t seized landlords’ money, and tenants aren’t acting qua Oakland when they get the money.
2. A doctor, the DEA, and psilocybin walk into the Ninth Circuit.
A Seattle doctor and co-director of a medical research institute sought to administer psilocybin, a natural psychedelic, to cancer patients. He explained that psilocybin—the compound in magic mushrooms—would supplement, not replace, the patients’ normal course of treatment and provide therapeutic care for the patients’ anxiety and depression. Now, psilocybin is a Schedule I controlled drug, i.e., it has “no currently accepted medical use or treatment” (though some recent medical studies suggest otherwise). It is a crime to possess it without authorization, which is hard to get. Ever mindful, the doctor sent a letter to the U.S. Drug Enforcement Agency, asking how he might research or prescribe psilocybin without breaking federal law. The DEA’s response directed the doctor to the procedure by which one gets authorization to research the drug. It then explained that authorized researchers are exempt from prosecution. Doctor: The DEA’s response is inadequate. Ninth Circuit, will you help me out? Ninth Circuit: Problem is, doc, you filed suit under a law that lets us review “final determinations . . . of the Attorney General.” The DEA’s response wasn’t that; it was an informative letter. We lack jurisdiction, so this suit is dismissed.
3. Prisoners, the First Amendment, and nudity walk into the Second Circuit.
Does a Connecticut prison rule, which bans any depiction of sexual activity or nudity unless it is “literary, artistic, educational or scientific”, violate prisoners’ First Amendment rights? Second Circuit panel: No, and here’s 58 pages explaining why not.
4. Labor unions get small win at the D.C. Circuit.
If certain federal employers change “personnel policies . . . affecting working conditions,” they must engage in collective bargaining with their employees’ representatives. The Federal Labor Relations Authority decides what kinds of policy changes trigger collective bargaining. For decades the FLRA said any policy change is sufficient so long as it doesn’t have a de minimis effect on workplace conditions. But in 2020 the FLRA raised the bar. It said a policy change now must have a “substantial impact” on workplace conditions to trigger bargaining. Employee unions foresaw that management would have greater leeway to alter office policies. They sued the FLRA. Their opening gripe is that the way the FLRA made its decision was arbitrary and capricious under the Administrative Procedure Act. But their main claim is that the FLRA can’t ever raise the bar because federal law requires the de minimis standard. D.C. Circuit panel: The FLRA’s decision was arbitrary and capricious, but this means we can’t opine on the main claim.
5. Sixth Circuit keeps women’s swimming-and-diving team’s Title IX suit afloat.
In 2020 Michigan State University cut its men’s and women’s swimming-and-diving teams. Women’s team: This disproportionately harms female athletes, shirking Title IX. MSU must reinstate the women’s team. District court: I disagree, based on my calculations of gender ratios at the university and in the athletic department before and after the cuts. Injunction denied. Sixth Circuit panel (over a dissent): Some of the district court’s calculations used ratios where Title IX requires numbers, so we’ll need a do-over. Vacated and remanded.
6. Fourth Circuit denies qualified immunity for West Virginia police officer in deadly house call.
A son, a daughter, and her family are all staying on the property of their father, Stephen Crumbley, in rural West Virginia. Things haven’t been rosy. It is cold. Snow covers the ground. Mr. Crumbley stays by himself in a separate A-frame, and his pipes have frozen. He has a moonshine hangover and is coming down from a meth high. The daughter is out of cigarettes. Last week Mr. Crumbley, rifle in hand, ran his son’s girlfriend off the property. Today, his kids fear he’ll do whatever it takes to keep them on it. Tension mounts when the daughter finds the tires on her car have suddenly gone flat. The son sneaks off the property (which doesn’t have cell service) and calls 911. He tells police his father is holding everyone there hostage. He also warns that his father has made threats to shoot police officers if they step foot on his property. Two troopers respond. One stays with the cruiser. The other goes to the family’s cabin and tells them to lock the doors. He returns to the cruiser. Then Mr. Crumbley emerges from his A-frame. He is irate. He yells for the troopers to leave his property and threatens a shootout. Then, brandishing a shovel, he tries to break down the door to his children’s cabin. The troopers advance, ordering him to stop. He drops the shovel and runs. The troopers give chase. One slips in the snow. The other, Cory Elliott, sees Mr. Crumbley disappear round the corner of his A-frame. Trooper Elliott stops, draws his service weapon, and turns the corner. Mr. Crumbley stands about twenty feet away facing the house, with his left side turned toward Trooper Elliot. He is bending over a couch that runs parallel to the A-frame wall, and Trooper Elliott cannot see what Mr. Crumbley is doing. Suddenly Mr. Crumbley stands upright, turns toward Trooper Elliott, and begins to lift his hands. Fearing Mr. Crumbley has a gun, Trooper Elliot fires. One shot hits Mr. Crumbley’s right hand. A second hits Mr. Crumbley in the back. The bullet enters just below the right shoulder blade, passes through a lung and the liver, and lodges. Mr. Crumbley falls to the ground. As it happens, he is not holding a gun. The troopers call for paramedics, but they are unable to save Mr. Crumbley, and he dies. Mr. Crumbley’s son sues Trooper Elliott for excessive force. District court: Trooper Elliott has qualified immunity. Fourth Circuit panel: Hm. Trooper Elliott’s is the only version of the events that took place behind the A-frame. And Trooper Elliott shot Mr. Crumbley in the back. We think that’s enough to call into question—but not necessarily refute—Trooper Elliott’s story. To trial this case shall go.
7. Tenth Circuit answers Speedy Trial Act question.
The Speedy Trial Act generally says that a criminal trial must start no more than 70 days after the defendant first appears in the federal district court in which the criminal charges are pending. But suppose the case is transferred to a different district—say, for the defendant to enter his plea—and the defendant makes his first appearance in that district. Are the charges pending in that district? And if so, does the defendant’s appearance in that district start the 70-day clock? Tenth Circuit panel: Yes and yes. Modus tollens: If the charges aren’t pending there, then the defendant can’t enter a plea there. But the defendant did enter his plea there. Therefore, etc.
And in en banc news: The full Sixth Circuit, voting 11:6, allowed a recent Tennessee abortion law to take effect temporarily. The law forbids a physician to perform an abortion if the physician knows the reason for the abortion is the fetus’ sex, race, or Down Syndrome diagnosis. But the Sixth Circuit upheld an injunction against another Tennessee abortion law. That one would place staggered restrictions on the availability of abortions depending on when a fetal heartbeat is detected.
Benchwarmers 