Tuesday, August 02, 2011

Published Circuit Opinons - August 2

(TMB will no longer list "errata" postings.  Doesn't seem to be much point, really.)

Third Circuit:

No 4A expectation of privacy in the common areas of a locked mutli-unit building.  Logic - the building is locked to provide security, not privacy.

Res judicata does not bar complaints that are predicted on events that postdate the filing of the initial complaint; Not responding to a theory in summary judgment motions means that a party can't object later on to an instruction on the theory; Exclusion of (possibly - apparently bungled in briefs) contradiciton on non-collateral issues didn't affect substantial rights; no DP violation in dismissal of police officer.

Where state law allows municipalities to set a tax rate, but a state agency is charged with collecting the tax, a municipality's suit to encforce a certain interpretation of the tax law is barred under third-party standing doctrine.  (NB, statute required that officials of the municipality be joined to any suit to collect the tax.)

Sixth Circuit:

Independent federal remedy exception to Garmon's ban on courts considering matters that arguably implicate NLRA claims saves CFAA suit argung that targeted emails overloaded a server; Targeted email campaign is sufficient damage to server under CFAA; Intent requirement of CFAA does not require perfect knowledge - merely the conscious purpose of causing damage; Use of public access (telephones, email) defeats "unauthorized" requirement of CFAA; No error in refusing leave to amend, especially as the request was in the footnote of a reply brief; Injunction properly denied, as NLGA requires that parties make every reasonable effort to settle before court acts; Targeted email and voicemail campaigh is insufficient 'violence and destruction,' NLGA trumps more specific, later-enacted statute (CFAA).

Eighth Circuit

Revocation of supervised release upheld, as no clear error in court's decision that guns in a youtube video were not props.

 No judicial estoppel on a claim where the earlier action was unsuccessful; No need for court to take judicial notice of a pretrial filing in an earlier action where the issue was preserved for trial; No error in jury instructions; Sufficent is the evidence to the verdict therein.

Ninth Circuit:

Even where a prison lockdown continues past the termination of the investigation of the events that led to the lockdown, there was no clear violation of the law by prison officials.
Nondiscrimination policy narrower than "all comers" is reasonable in light of university's purposes of promoting diversity and nondiscrimination; Restrictions are not viewpoint-based, as there was no intent in the policy to restrict certain kinds of speech; Triable issue as to whether the policy was unequally enforced; Nondiscrimination policy is a rule of general application, and therefore does not violate Free Exercise or Equal Protection clauses.

Habeus - a credible claim of actual innocence is an equitable exception to AEDPA's one-year time limit -  circuit split flagged;  Not in this case, though; Koz, concurring: Dictum, as this dude is non-innocent.

Where co-owner of computer with separate PW-protected files gives possession of the computer to another after removing the PW protection, and the second person then returns it to the other former co-owner, the former co-owner has common authority to consent to a search of the entire computer; Alternatively, there was apparent authority; Dissent: Co-user is not necessarily a co-wner; under bailment theory, ability to access computer files does not necessarily equate with the right to do so; 4A merely requirs that it be a closed container, not a locked one.

No jurisdiction under federal long-arm statute (4(k)(2)), as claims asserted do not arise from federal law, despite prior removal by defts to federal court; Government Contractor Defense TKO's present claim, including duty to warn; 

Going to en banc, opinion withdrawn.

Tenth Circuit:

No error in court declining to allow deft to present evidence of a homicide he committed in order to establish a necessity defense on a gun charge; No error in revising sentence upward based on homicide conviction, as the sentence was revised upwards for other reasons entirely.

NB - DC Circuit web server is down.  
(If law is code, is a timeout error anarchy?)

Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

Category tags above are sporadically maintained Do not rely. Do not rely. Do not rely.

Author's SSRN page here.