Bray v. Planned Parenthood Columbia-Willamette, Inc., US 6th Cir. (3/21/14)
Civil Procedure, Communications Law, Constitutional Law
Bray is an antiabortion activist and wrote a book, A Time to Kill. In 1985, Bray was convicted for a felony relating to physical damage to abortion centers. He spent four years in prison. Planned Parenthood (PPCW) was a plaintiff in a 1995 suit against antiabortion activists (including Bray) for intimidation by threat of force under the Freedom of Access to Clinic Entrances Act, 18 U.S.C. 248. In 2005, PPCW sought to collect its $850,000 judgment and obtained a writ of execution authorizing seizure of specified property. The Bray family filed a “Bivens” suit, claiming that U.S. Marshals conspired with PPCW to seize their property in an unconstitutional manner. The complaint alleged that during a “surprise raid” Bray was required to sit on his couch while flak-jacketed Marshals, advocates for political positions that Bray despised, plus unknown persons, seized the books, papers, computers and cameras, of Bray and his family, excepting only children’s books and Bibles. Bray was not allowed to leave the couch or to call his lawyer. Eventually a Marshal called Bray’s lawyer. The district court dismissed. The Sixth Circuit affirmed, noting that Bray had settled with all defendants, except the Marshals, who were entitled to qualified immunity in carrying out a presumptively valid federal court order, even by “highly questionable ways.” The unconstitutionality of certain actions was not then clearly established with sufficient specificity. If the alleged facts are true, the incident was “more like home raids by Red Guards during China’s Cultural Revolution than like what we should expect” in the U.S., even if Bray’s ideas are “repugnant.”
The General Railroad Right-of-Way Act of 1875 provides railroad companies “right[s] of way through the public lands of the United States,” 43 U.S.C. 934. One such right of way, created in 1908, crosses land that the government conveyed to the Brandt family in a 1976 land patent. That patent stated that the land was granted subject to the right of way, but it did not specify what would occur if the railroad relinquished those rights. A successor railroad abandoned the right of way with federal approval. The government sought a declaration of abandonment and an order quieting its title to the abandoned right of way, including the stretch across the Brandt patent. Brandt argued that the right of way was a mere easement that was extinguished upon abandonment. The district court quieted title in the government. The Tenth Circuit affirmed. The Supreme Court reversed. The right of way was an easement that was terminated by abandonment, leaving Brandt’s land unburdened. The Court noted that that the government had argued the opposite position in an earlier case. In that case, the Court found the 1875 Act’s text “wholly inconsistent” with the grant of a fee interest. An easement disappears when abandoned by its beneficiary.
Jordan v. Jewel Food
HT to Professor Peter Martin who posts in his blog, 
Responding to a report of underage drinking in a home, officers found a group celebrating eighth grade graduation. Police asked the teens to step outside individually for breathalyzer testing. Seven tested positive for alcohol. Police arrested them and notified their parents. In the morning, a juvenile worker arrived at the police station, and, after speaking with a judge, indicated that the children were to be detained for a court appearance the next day. At the regional juvenile detention center, the minors underwent routine fingerprinting, mug shots, and metal-detection screening. During a hygiene inspection and health screening, they were required to disrobe completely for visual inspection to detect “injuries, physical abnormalities, scars and body markings, ectoparasites, and general physical condition.” A same-sex youth worker observed the juveniles for several minutes from a distance of one to two feet, recording findings for review by an R.N. The minors were required to shower with delousing shampoo. They were released the following day. The charges were dropped. In a suit under 42 U.S.C. 1983, the district court granted partial summary judgment in favor of the juveniles, based on a “clearly established right for both adults and juveniles to be free from strip searches absent individualized suspicion” that negated a qualified immunity defense. The Sixth Circuit reversed, stating that no clearly established principle of constitutional law forbids a juvenile detention center from implementing a generally applicable, suspicionless strip-search policy upon intake into the facility.
Long-time drug user Banka died after a binge that included use of heroin purchased from Burrage. Burrage pleaded not guilty to charges that he had unlawfully distributed heroin and that “death … resulted from the use of th[at] substance,” which carries a 20-year mandatory minimum sentence under the Controlled Substances Act, 21 U.S.C. 841(b)(1)(C). Medical experts testified that Banka might have died even if he had not taken the heroin. The court instructed the jury that the prosecution had to prove only that heroin was a contributing cause of death. The jury convicted Burrage, and the court sentenced him to 20 years. The Eighth Circuit affirmed. The Supreme Court reversed. Where use of the drug distributed by the defendant is not an independently sufficient cause of death or serious bodily injury, the penalty enhancement does not apply unless such use is a “but-for” cause of the death or injury. The Court declined to address cases in which multiple sufficient causes independently, but concurrently, produce death, because there was no evidence that Banka’s heroin use was an independently sufficient cause of his death. Congress could have written the statute to refer to a “substantial” or “contributing” factor in producing death, but instead used language that imports but-for causality.
Sixty-four-year-old Plaintiff was born anatomically male but suffered from severe gender identity disorder. In 1992, Plaintiff was convicted of murder and sentenced to life imprisonment. In 2000, Plaintiff filed a complaint against the Massachusetts Department of Correction (DOC), alleging that the DOC was denying her adequate medical care by not providing her with sex reassignment surgery. The district court subsequently issued an order requiring the Commissioner of the DOC to provide Plaintiff was sex reassignment surgery, finding that the DOC’s failure to provide the surgery violated Plaintiff’s Eighth Amendment rights. The DOC appealed. The First Circuit Court of Appeals affirmed, holding that the district court did not err in finding that Plaintiff had a serious medical need for sex reassignment surgery and that the DOC refused to meet that need for pretextual reasons unsupported by legitimate penological considerations in violation of Plaintiff’s Eighth Amendment rights.
Verizon challenged the FCC’s Open Internet Order, which imposed disclosure, anti-blocking, and anti-discrimination requirements on broadband providers. The court concluded that the Commission has established that section 706 of the Telecommunications Act of 1996, 47 U.S.C. 1302(a), (b), vests it with affirmative authority to enact measures encouraging the deployment of broadband infrastructure; the Commission reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here – that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet – was reasonable and supported by substantial evidence; given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act, 47 U.S.C. 201 et seq., expressly prohibits the Commission from nonetheless regulating them as such; and because the Commission has failed to establish that the anti-discrimination and anti-blocking rules did not impose per se common carrier obligations, the court vacated those portions of the Open Internet Order.
A heads up to all interested open access folks that the debut issue of The Journal of Open Access to Law (JOAL) is up and ready for consumption at 
This case involved three Enhanced 9-1-1 (E-9-1-1) calls regarding an altercation that resulted in three people being shot. MaineToday Media, Inc. sent a series of requests to inspect and copy the three transcripts to the police department, state police, attorney general, and others. The State denied the requests, claiming that the transcripts constituted “intelligence and investigative information” in a pending criminal matter and were therefore confidential under the Criminal History Record Information Act. MaineToday filed suit against the State, arguing that the Freedom of Access Act (FOAA) mandated disclosure of the transcripts as public records and that no exception to their disclosure applied. The superior court affirmed the State’s denial of MaineToday’s request. The Supreme Court vacated the lower court’s judgment, holding that the E-9-1-1 transcripts, as redacted pursuant to 25 Me. Rev. Stat. 2929(2)-(3), were public records subject to disclosure under the FOAA.
