A collection of significant and strange cases decided by the federal courts of appeals this week. Each summary delivered in a minute or less: six cases, six minutes. On the docket this week was voting rights at SCOTUS, qualified immunity, national forests, and profane T-shirts.
1. SCOTUS will review Alabama voting districts but won’t block their use before primaries.
The 2022 midterm elections are in the offing. Polls for primary elections open in a few months. But fights over voting rights are already underway in Alabama. State legislators drew a new map of Alabama’s congressional districts after the 2020 census. A coalition of black voters challenged the new map in court, arguing the new districts dilute minority votes. The Supreme Court agreed to hear the case next fall. But the Court, voting 5:4, allowed Alabama to use the redrawn map while litigation continues. Justice Kavanaugh seemed to provide the majority’s reasoning. Since absentee balloting begins in just a few weeks, he wrote, to order Alabama to switch back to the old map now would violate the principle that courts should not change election laws in the immediate run up to the election. Chief Justice Roberts, in dissent, voted to stop Alabama from using the new map while the case is pending. Justices Kagan, Breyer, and Sotomayor (in a separate dissent) voted the same, but they added that the majority has prejudged the entire case by refusing to block the new map now. Justice Kavanaugh devoted some of his opinion to rebutting that claim.
Now for the non-SCOTUS decisions:
2. Ninth Circuit treks through Los Padres National Forest case.
The Tecuya Ridge is a tree-covered line of mountains in the southern part of the Los Padres National Forest. Junipers and conifers dot the Ridge, providing a habitat for condors, owls, and other birds. However, the dense forests make the Ridge prone to wildfires; there have been fifteen since 1998. The U.S. Forest Service decided that the best way to reduce the risk of wildfire is to “thin”—cut down—some trees and shrubs within a designated strip of land along the Ridge called a “fuelbreak.” Less wood and fewer leaves in this strip means less fuel for a wildfire, allowing firefighters to control the flames more easily. Now, some of the trees on the ridge have diameters larger than 21 inches at breast height. Why does this number matter? Well, it’s the starting point for this entire case. A federal law allows the Forest Service to cut down “small diameter timber” on the Ridge. Is 21in a “small diameter”? Forest Service: Yep. Ninth Circuit panel (over a dissent): The Forest Service hasn’t given a good enough explanation to support its answer. Until it does, the fuelbreak project for the Tecuya Ridge is on hold.
3. Ninth Circuit treks through another Los Padres National Forest case.
Five miles west of the Tecuya Ridge lies Cuddy Valley, another area with dense trees and a history of wildfires. The Forest Service has a similar “thinning” project for the Valley, and the project includes cutting large trees that can be used for commercial timber. Ordinarily the Forest Service must prepare a report assessing the project’s potential effects on the surrounding ecosystem. But there’s an exception if the Forest Service’s purpose for thinning trees is to “reduce fire hazard”. Environmental groups: The exception doesn’t apply if the trees can be used for commercial timber. Ninth Circuit panel (over a dissent): Take a hike. Nothing in the text of the exception limits the size of the trees that may be cut down. Nor does the exception include an exception to the exception for commercial timber.
4. Profane T-shirts and free speech at the Sixth Circuit.
A man heads to the county fair. Of all his wardrobe options, he chooses a shirt with the words, “Fuck the police”. The fairgrounds’ Executive Director stops the man, and police escort him off the premises. Along the way he lets loose a barrage of insults (but no threats) toward the police and the Director. Police arrest him for disorderly conduct. The charges are dropped, and he sues the police for wrongful arrest. Sixth Circuit panel: The First Amendment protects foolish and immoderate speech. The man’s shirt and insults were exactly that: coarse but protected. His wrongful arrest claim may proceed.
5. Ninth Circuit invalidates ban on “encouraging” illegal immigration.
Federal law forbids anyone to “encourage[] or induce[]” a noncitizen to enter the U.S. illegally. The law has faced recent scrutiny in court. A recurring argument is that some of the conduct the law criminalizes is speech or expression that the First Amendment protects, and thus the law is “overbroad” and unconstitutional. That argument didn’t persuade a Fourth Circuit panel in 2011. It did persuade a Ninth Circuit panel in 2018, but the Supreme Court vacated that decision on unrelated grounds. This week a different Ninth Circuit panel was persuaded and invalidated the law as overbroad. Will the rematch make it all the way to Washington? Quite possibly.
6. Eleventh Circuit grants qualified immunity to police officer in mistaken house call.
In Tchaikovsky’s Swan Lake the prince declares his love for the princess, thinking it will free her from the sorcerer’s curse that turned her into a swan. But the princess is not the one standing before the prince when he declares his love. In fact, it is the sorcerer’s daughter, disguised to look like the princess. This mistake sets the ballet’s tragic ending in motion.
So it is in this case of a house-call gone wrong. In the early morning hours a 911 call is placed from 736 Swan Lake Road in Henry County, Georgia. But dispatch gives police officers unclear information, and they respond to 690 Swan Lake. The homeowner, David Powell—who has nothing to do with the crime taking place down the street—sees dark figures snooping around his yard and pointing flashlights in the windows. Thinking he’s being burgled, he grabs his pistol and steps out onto his driveway. Mr. Powell spots one of officers, Patrick Snook, on the front stoop. Officer Snook does not identify himself. Mr. Powell begins to raise his pistol. Officer Snook then fires three shots, killing Mr. Powell. Mrs. Powell sues Officer Snook for excessive force. Eleventh Circuit panel: This is a “tragic” case, but Officer Snook has qualified immunity because he was not required to warn Mr. Powell before using deadly force.
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