Rocky Mountain Appellate Blog

A Victory for Website Parodies

In a decision issued yesterday, the Tenth Circuit issued an opinion that gives website parodies (here's a good example, which the court cited in a footnote) a little breathing space.

Utah Lighthouse Ministry (UTLM) v. Foundation for Apologetic Info. & Research (FAIR) involved a trademark infringement claim against FAIR, a volunteer organization that responds to criticism of the Church of Jesus Christ of Latter-day Saints.  FAIR operated a parody website spoofing the anti-Mormon efforts of the Utah Lighthouse Ministry, although it did not have a disclaimer stating that it was not associated with UTLM.  The parody website contained no advertising and offered no goods or services, but it did contain several external hyperlinks, once of which was a link to FAIR's homepage.  FAIR's homepage, in turn, contains a link to its on-line bookstore.

Prior to the UTLM decision, the Tenth Circuit had not examined the issue of when hyperlinking renders an otherwise noncommercial website subject to an infringement claim under the Lanham Act.  The court essentially adopted a case-by-case approach utilized by the Ninth Circuit in Bosley Medical Institute v. Kremer.  Because the parody website contained critical commentary about UTLM, and because the links to the FAIR website were to its homepage and not directly to its bookstore, the court held that the "roundabout path" to the advertising or commercial use of others is simply "too attentuated" to invoke the trademark protections of the Lanham Act.

Interestingly, the opinion mentions, without further comment, that the defendants shut down their parody website and began to transfer any related domain names to UTLM in April 2005, the very same month UTLM filed its complaint -- leading one to wonder why this lawsuit wasn't settled more than three years ago.

No Surprise to the Tenth Circuit: Supreme Court Holds Retaliation Claims Are Proper Under Section 1981, ADEA

In a pair of decisions issued today, the U.S. Supreme Court held that retaliation claims are covered by Section 1981 of the Civil Rights Act of 1866 and by the Age Discrimination in Employment Act.  In Gomez-Perez v. Potter, the Court, by a 6-3 majority, reversed the First Circuit's conclusion that the ADEA's prohibition of "discrimination based on age" does not cover retaliation.  And in CBOCS West, Inc. v. Humphries, the Court held by a 7-2 majority that Section 1981 encompasses retaliation claims.  Interestingly, Chief Justice Roberts dissented in Gomez-Perez but joined the majority in the CBOCS decision.

On the Section 1981 issue, the Tenth Circuit was on the "correct" side of the circuit split, having decided in O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1258 (10th Cir. 2001), that Section 1981 encompasses retaliation claims.  Similarly, although I could not find a Tenth Circuit decision squarely addressing the issue, it appears that the Tenth Circuit has assumed for at least 20 years that retaliation claims are covered by the ADEA.  See, e.g., Anderson v. Phillips Petroleum Co., 831 F.2d 631 (10th Cir. 1988).

Is Battery a Crime of Domestic Violence?

Section 922(g)(9) of the U.S. Code states that it is unlawful for any person who has been convicted of a "misdemeanor crime of domestic violence" to possess a firearm.  In United States v. Hays, No. 07-8029, the defendant was convicted under 922(g)(9), based on a battery conviction under Wyoming's domestic violence statute.  He challenged the conviction on appeal, arguing that simple battery, as defined by Wyoming law, does not constitute a "misdemeanor crime of domestic violence."  The Tenth Circuit agreed in a split decision.

The federal statute defines "misdemeanor crime of domestic violence" as "a misdemeaner under Federal, State, or Tribal law [that] has, as an element, the use or attempted use of physical force."  The majority (per Judge Seymour, joined by Judge McConnell) held that because the term "physical force" suggests something more than mere physical contact (the court held there must be some degree of power or violence present to constitute physical force) Hays's Wyoming conviction for battery -- which Wyoming defines as "unlawfully touch[ing] . . . in a rude, insolent or angry manner" -- was not sufficient:

For example, in the midst of an argument, a wife might angrily point her finger at her husband and he, in response, might swat it away with his hand.  This touch might very well be considered "rude" or "insolent" in the context of a vehement verbal argument, but it does not entail "use of physical force" in anything other than an exceedingly technical an scientific way.

Judge Ebel issued a forceful nine-page dissent, arguing that "[i]n plain English, a rude, insolent, or angry touch in a domestic context necessarily involves a 'use of physical force.'  Congress did not choose to limit the phrase 'physical force,' and accordingly, neither should we. . . . The majority apparently requires that physical force result in some short of 'harm or injury.'  But, how much and of what kind?  Is a scratch sufficient?  What if glasses are knocked off the victim's face and broken, but the victim sustains no physical marks from the assault?  How about an emotional injury?  Once we start down the slippery slope left open by the majority opinion of qualifying what constitutes 'physical force,' our work will never be done."

One limitation the court had in analyzing this case, and which probably saved Hays, was the fact that there was no detail available concerning the circumstances leading to his Wyoming conviction.  It could well be that his conviction involved the kind of "physical force" that fit within anyone's definition of the term, but there was apparently no way to tell.

Perjury and the Court Interpreters Act

In United States v. Hasan, No. 06-5234, the Tenth Circuit held that the District Court had committed plain error when it held that the plaintiff was entitled to an interpreter under the Court Interpreters Act (“CIA”) during his trial for perjury without clearly explaining why he had not been entitled to an interpreter at the grand jury hearings which formed the basis for the perjury charges. 

Mr. Hassan is a native of Somali who was granted asylum in 1997.  In 2004 a federal immigration agent questioned him regarding statements he had made during his asylum application.  This interview was triggered because the FBI had requested that the DHS review Mr. Hassan’s file for reasons that are not clear in the record.  In 2005 Mr. Hassan was called twice before a grand jury which was investigating the truthfulness of statements he made during the 2004 interview.  Mr. Hassan was then indicted for perjury, not for statements made during the 1997 hearing or the 2004 interview but for statements made during the grand jury proceedings themselves.

At trial, Mr. Hassan sought an interpreter pursuant to the CIA.  He also may have argued that he had been entitled to an interpreter under CIA at the grand jury proceedings, and that the charges against him should thus be dismissed.  (The parties are divided on this issue, although strangely the government concedes that Hassan raised this issue before the District Court and Hassan concedes that he is raising it for the first time on appeal.  The Tenth Circuit did not resolve the issue as it found that Hassan prevailed even under a plain error standard)   The District Court ultimately found that Mr. Hassan was entitled to an interpreter at the trial, but did not subsequently consider whether he was entitled to an interpreter in the grand jury proceeding.  The Tenth Circuit noted that the CIA does not distinguish between trials and grand jury proceedings, and indeed, was in part designed to avoid perjury prosecutions based on language difficulties.  It thus remanded the case to the District Court with instructions to resolve or explain its apparently contradictory determinations.

The Tenth Circuit attaches excerpts of the grand jury transcripts, including those which form the basis for the indictment to its opinion.  From these it appears that the indictments (not to mention the two grand jury investigations regarding potential perjury) were an unusual exercise of prosecutorial discretion given that Mr. Hassan was not a native English speaker.  For example, Count III was based on a conflict between the following exchanges:

Q:        How were you hurt by being beaten?

A:         Just break my teeth and I was trying to run away from them.

And

Q:        What injuries did you receive . . .

A:         There is no injury, just beating me up.  There was beating up and I had some blood in my mouth

. . . .

Q:        Did they break any teeth?

A:         No.

Solicitor General Resigns

Solicitor General Paul Clement resigned yesterday after serving in that capacity since 2005.  He had served in the SG's office for the last seven years, which, according to the DOJ, is the longest stint since 1885.  More details from Tony Mauro in the Legal Times here.  The article speculates that Clement is likely to attract a compensation package of between $2 million and $3 million in private practice.

The Law and High Pillars

In United States v. Friday, No. 06-8093, the Tenth Circuit considered whether the Religious Freedom Restoration Act prohibited the prosecution of a Native American who shot a protected eagle for use in a religious ritual without a permit.  The short answer is no. However the court considered a myriad of issues over the course of a forty-four page opinion before reaching this conclusion.

One of the major questions considered by the court was whether it substantially burdened the defendant’s religion to obtain a permit in advance of taking an eagle.  The court noted that many religious activities, such as building a church, require some sort of advance authorization.  It also noted that the defendant never testified that he had a religious objection to using the permit system. 

The court then considered whether applying for a permit would have been futile.  Among other things, the District Court had found that the Fish and Wildlife Service had a “policy of discouraging requests for eagle take permits for Indian religious purposes.”  Thus, one of the many issues the court considered was whether a permitting process which would have allowed the defendant to seek a permit to take an eagle legally was unavailable to him because it was not adequately publicized. Judge McConnell held that:

The process is not a secret.  Unlike the laws Caligula put in small print ‘hung up upon high pillars’ so nobody could read or obey them both the prohibition on taking eagles and the availability of permits for tribal religious purposes are published in the U.S. Code. The regulations are published in the code of federal regulations.  Both the statutory and regulatory texts are available on the FWS website, which also contains a link to an online copy of the application for a permit to take an eagle.  That is at least as much notice as is given to the average criminal defendant subject to the legal fiction that ‘everyone is presumed to know the law.”

(citations omitted).  Personally, I disagree with the assumption that publishing something in the C.F.R. makes it more accessible that putting it on a high pillar, but the point is well taken.

The Latest From The Supreme Court

In Gonzalez v. United States, No. 06-11612, decided today, the United States Supreme Court held that a criminal defendant need not personally consent to have a Magistrate Judge preside over voir dire and jury selection, and that such a waiver can properly be made by counsel.  Justice Scalia concurred with the judgment, but argued that the Supreme Court should abandon its “tactical-vs.-fundamental” test as vague and not well grounded in precedent or the Constitution and hold that nothing in the Constitution prohibits an attorney from waiving any right of a client (other than, necessarily, the right to counsel).  Justice Thomas dissented, arguing that the Supreme Court should overrule its decision in Peretz v. United States, 501 U.S. 923 (1991), and hold that the Federal Magistrates Act does not authorize Magistrate Judges to preside over felony jury selections.

10th Circuit Reinstates ADA "Association" Claim

The Americans with Disabilities Act prohibits discrimination against an employee based on the employee's association with a disabled individual, and the classic example is a parent who claims he or she was fired because of a child's illness or disability. 

Such claims have particular relevance in an age of rising health care costs.  For example, in Trujillo v. Pacificorp, in which the Tenth Circuit issued a decision yesterday, a husband and wife claimed they were both fired from the same employer because their child's terminal illness was driving up the employer's health insurance costs.  The district court granted the employer's summary judgment motion on the ground that the couple failed to state a prima facie case, but the Tenth Circuit reversed.

In reversing, the Tenth Circuit emphasized the temporal proximity (three weeks for the father and six weeks for the mother) between the parents' termination and the health insurance claims resulting from their son's illness.  The court held:  "[G]iven the difficulty in establishing an expense case   . . . direct evidence of discrimination from [health care] costs will be rare.  Where as here, the temporal proximity is close, it is a circumstance that should be given considerable weight."

The court's holding appears to make it substantially easier for employees to survive summary judgment in ADA association claims, and employers should take heed.  I would not relish the prospect of trying a case like this to a jury -- in Trujillo, for example, the plaintiffs' son passed away soon after they were fired.  I'd be willing to bet Pacificorp now makes a serious run at negotiating a settlement.

Deputies and (Tangentially) Doughnuts

Price-Cornelison v. Brooks, No. 05-6140 is a factually and legally fascinating equal protection case. The plaintiff obtained an emergency protective order against her lesbian partner.  This order required the partner to leave the Plaintiff’s farm on or before the following day.  Upon receiving the order, the partner, family, and friends began removing property belonging to the Plaintiff from the farm.  Learning about this situation from her farmhands while at work out of the state, the Plaintiff called the defendant deputy sheriff.  The deputy told the Plaintiff, among other things, that were she to return to the farm and try to stop the removal of the property, she would be arrested.  Plaintiff then called a lawyer.  The lawyer, (allegedly) called the sheriff’s office and told the deputy to get “off his doughnut eating ass and do something” to prevent the theft. 

Plaintiff subsequently obtained a permanent order of protection.  After Plaintiff obtained this order, her partner (who had previously threatened to kill the Plaintiff) attempted to reenter the farm.  The Plaintiff again called the sheriff’s office.  This time she was told that the sheriff’s office was “too busy” to send someone to respond. The deputy later told her that her situation “was all over the courthouse in town . . . and that everybody was laughing, it was a big joke” and that her attorney had upset the sheriff’s office and “she needed to get someone local to represent her if she was going to have . . . anything go on here in town at the courthouse.”

Plaintiff asserted two constitutional claims:  She alleged that the failure to enforce the two protective orders violated the equal protection clause because the Plaintiff was a lesbian victim of domestic violence and was treated differently than other domestic violence victims.  She also alleged that in assisting the partner to unlawfully seize her property, the deputy had violated the Fourth Amendment.  The court held that the Plaintiff was able to overcome qualified immunity on all counts except for the enforcement of the emergency protective order. The court held that Plaintiff was able to show that the deputy had handled the permanent protective orders of non-lesbians differently, but could not make such a showing with regard to the emergency protective order.  The court also held that the threat to arrest the plaintiff were she to return to her home enabled the partner to unlawfully seize the plaintiff’s property.  The court noted its prior precedent that while officers can defuse confrontations regarding possession of property, they cannot adjudicate them in a “curbside courtroom” by deciding who is entitled to possession.

City Market and the Submarine Captain

As prices at the pump continue to climb and the price of oil briefly hit $120 a barrel earlier this week, the Tenth Circuit's decision in Parish Oil Co. v. Dillon Companies, Inc., No. 07-1032, which was issued last Friday, is particularly relevant.  The Court held, per Judge McConnell, that under the Colorado Unfair Practices Act (CUPA), a grocery store may sell gas below cost if the sales are conditioned on the purchase of enough groceries above cost that the entire series of transactions comes in at a profit.  Relevancy aside, the court also used a Seinfeld episode to illustrate its point.

The case involved City Market's discount program aimed at boosting grocery sales by giving customers a break at the gas pump if they spent a certain amount on groceries.  Two retail filling stations brought suit, arguing that the program violated the CUPA.  The stations won at trial, with the jury awarding more than $1.4 million against City Market.  The Tenth Circuit reversed, holding that the plain language of the CUPA allowed the kind of "bundled sales" promoted by City Market; thus, even though City Market sells gas below cost, it is not unlawful so long as City Market does not sell below cost for the entire transaction. 

As the court explained, City Market's program is no different from a fast-food chain which sells a value meal at a profit, even though it might throw in part of the meal, such as a milk shake, below cost.  The court also noted that the district court's reading of the CUPA would render illegal a practice so common that it was featured in a 1997 episode of Seinfeld:

Jerry:  "Atomic Sub"?  Why are you eating there?

Elaine:  I got a card, and they stamp it every time I buy a sub.  Twenty-four stamps, and I become a Submarine Captain!

Jerry:  What does that mean?

Elaine (embarrassed):  Free sub.

I looked for this scene on YouTube, but couldn't find it.  (However, although it's totally irrelevant to the decision, this still cracks me up.  Sweet Fancy Moses!)

As an aside, this continues Judge McConnell's entertaining habit, which I noted last year, of sprinkling his opinions with pop-culture references.  However, I couldn't help noting that in the fact section the decision states that one of the City Market stores was "in 'downtown' Montrose."  As a native of a very small New Mexico town not that far from Montrose, I took offense at the rather condescending use of the quotation marks around the word "downtown."  But on further reflection, it doesn't bother me that much.  Everything's relative, after all.  Certainly downtown Montrose is nothing compared to the downtown of a "metropolis" like Salt Lake City.

Congrats to my law school classmate and erstwhile colleague Tim Macdonald, who represented City Market on appeal.