Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Should federal courts of appeals act as advocates for the gov’t and raise defenses—unprompted—on the gov’t’s behalf? You can probably guess where we come down on this. For more details, dig into a recent IJ cert petition featuring a buffet of Younger abstention, sua sponte decision-making, and the Dormant Commerce Clause.

• Here’s a legal-ethics brain-twister: If you previously served as the general counsel for a nonprofit, can you represent clients suing that nonprofit over matters in which you previously represented the nonprofit? If you said, “Yes,” then you, too, might end up having your license to practice law suspended for 90 days, as the D.C. Circuit did to Judicial Watch founder and former general counsel Larry Klayman.
• Professional photographer takes photos of Prince, and then licenses one of the photos to Andy Warhol for a Rolling Stone piece. Andy Warhol proceeds to make a series of paintings of Prince based on the photo. Photographer: That’s copyright infringement. Andy Warhol’s Foundation: It’s fair use. District Court: Fair use. Second Circuit: Let’s not go crazy.
• New York City sues oil companies under state nuisance law for damages stemming from global warming. But according to the Second Circuit that state law is preempted by federal common law because of the issue’s interstate and international character. Further, federal common law “functions much like legal duct tape,” and gets ripped off when Congress speaks. Which it has done with the Clean Air Act. And there’s no role for international federal common law either because international diplomacy is a tricky thing federal courts must shy away from. Thus, NYC, no claim for you.
• Does the Fair Housing Act—which prohibits racial discrimination in housing—require landlords to address tenant-on-tenant harassment? Second Circuit (en banc): Landlords are not the boss of their tenants’ behavior towards other tenants, so no. Case dismissed. Dissent: If the landlord didn’t intervene because of the tenant’s race, that’s actionable. The case should go forward.
• Retired probation officer strolling around New Rochelle, N.Y. is approached by two plainclothes police officers. Retiree’s version: The officers didn’t identify themselves as police, were physically rough, over-tightened the handcuffs, and banged my head on the (unmarked) police car. Officers: We identified ourselves, used only reasonable force to restrain the recalcitrant suspect, and immediately released him once we verified that he was not the misdemeanant we were seeking. District court: The retiree “should be thanking his lucky stars” his injuries were minor; this case is way less important than many of my other cases; and the defendants win. Second Circuit: Given the parties’ different accounts of what happened, there are obvious fact disputes bearing on whether the officers used excessive force. To trial the case must go. And while we’re at it, no qualified immunity if the retiree’s account of the incident is accurate.
• Publicly intoxicated man is placed in the Botetourt County, Va. jail to sober up. A few hours later, he’s found dead. Man’s estate sues his custodians for displaying deliberate indifference to his serious medical needs (a Fourteenth Amendment violation). District court: Case dismissed. Fourth Circuit: Not so fast. The man was lethargic, semi-conscious, and barely able to walk, and the officers knew he had consumed prescription narcotics—all strongly sug

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