Three new opinions

E.D. v. Sharkey—civil rights—affirmance—Restrepo

[Disclosure: I helped to author an amicus brief filed on behalf of the ACLU and other groups in support of the immigration detainee, and I assisted the detainee’s able counsel with oral-argument preparation as a moot court judge.]

An employee at the controversial immigrant family detention center in Berks County, Pennsylvania, had sexual contact with a woman being detained there. The woman had fled Honduras with her three year-old child to escape violence and sexual assault. She filed a civil-rights suit alleging that the employee coerced her into giving in to his sexual demands and that the other staffers failed to stop him. The defendants moved for summary judgment, asserting qualified immunity and challenging the merits and municipal liability, and the district court ruled largely in the woman’s favor.

Today, the Third Circuit affirmed the denial of qualified immunity, holding that immigration detainees are entitled to the same due process protections as pretrial detainees, that the right not to be sexually assaulted by a state employee while confined was clearly established, and that the right to be protected by co-workers aware of ongoing assaults also was clearly established. The court observed that the disputed question of consent did not support summary judgment given both Pennsylvania law and ICE policies barring detainee sexual abuse regardless of consent, and the court questioned whether consent will be relevant at trial. Finally, the court denied the county’s appeal for lack of jurisdiction because it challenged municipal liability not qualified immunity.

Chief Judge Smith concurred to express concern about the form of the district court’s order, which (as EDPA opinions often do) set out its reasoning in a single footnote. He observed that, while footnote opinions are not inherently problematic, this one’s failure to identify undisputed facts and its cursory discussion without referring to record evidence fell short of what the Third Circuit requires in qualified immunity cases.

Joining Restrepo were Smith and Fuentes; Smith also concurred. Arguing counsel were Matthew Connell of MacMain Law Group for the appellants and Su Ming Yeh of the Pa. Institutional Law Project for the woman.


TD Bank v. Hill—civil / intellectual property—partial reversal—Krause

A long-running dispute between a bank and its former CEO culminated in a messy copyright squabble over a book the CEO wrote. Parts of his book, it seems, were adopted from a manuscript he’d written when he was still CEO for which the bank held a copyright. The district court rejected the CEO’s defenses on the copyright claims, but it vacated the broad injunction that the district court had entered blocking him from selling the book because no presumption of irreparable harm applied and because the bank had no real plans to publish its manuscript. The opinion includes nods to the case’s subject matter like “the latest chapter,” “the plot thickened,” “the best laid plans of mice and men,” and “peripeteia.”

Joining Krause were Fuentes and Cowen in part; Cowen dissented in part, arguing that the majority erred in ruling that the bank hadn’t waived its copyright-assignment argument. Arguing counsel were William Tambussi of Brown & Connery for the bank and Howard Hogan of Gibson Dunn for the CEO.


United States v. Baker—criminal—affirmance—Jordan

At the government’s request, the Third Circuit today published a previously non-precedential opinion in a criminal appeal, holding that the district court did not err in (1) refusing to give an entrapment instruction, (2) refusing to instruct the jury on an “I only meant to borrow it” defense to stealing public money, or (3) barring testimony by the defendant’s wife about her medical expenses.

Joining Jordan were Krause and Roth. The case was decided without oral argument.