Assessing fault: The designated driver? Or a drunken passenger who fell off the trunk of the car?

By: Rox Laird on September 11th, 2017

The U.S. Court of Appeals for the Eighth Circuit ruled this past Tuesday that a designated driver should not be held to a greater degree of fault for a passenger’s injuries than the passenger. (Amy Hiltner v. Owners Insurance Company.)

The panel decision by Judge Steven Colloton of Des Moines joined by Judges Roger Wollman of Sioux Falls, South Dakota, and Bobby Shepherd of El Dorado, Arkansas, reversed a North Dakota trial court ruling that assigned the majority of fault to Samantha Denault, who drove six friends home. Hiltner and another member of the group insisted on riding on the trunk of the car, despite Denault’s repeated pleas to get inside the car. Hiltner fell off and sued to recover damages for her injuries.

The trial court ruled that Hiltner’s fault was greater than any other passenger because, among other things, she volunteered to be the designated driver and as the only sober person had the greatest ability to assess the danger.

The Court of Appeals disagreed, saying the findings of fact do not support assigning greater fault to Denault and pointed out that Denault twice told Hiltner to get off the trunk and that she twice refused. Nor did the district court find that Hiltner was “helpless.”

“None of this is to say that the district court erred in concluding that Denault was ‘at fault’ in the accident,” Colloton wrote.  “But we cannot escape the conclusion that the apportionment of fault among the participants was influenced materially by Denault’s status as the sober designated driver.  This allocation of increased responsibility to Denault was either infected by legal error or unsupported by findings of fact that are necessary to justify it.”


Eighth Circuit rules for union worker who hurled racist comments at strike breakers

By: Rox Laird on August 14th, 2017

“No employer in America is or can be required to employ a racial bigot.”

So begins Judge C. Arlen Beam’s dissent from a ruling Tuesday by the U.S. Court of Appeals for the Eighth Circuit upholding the reinstatement of a union worker fired for hurling racist insults at strike breakers.

Beam parted company with two other judges who upheld a National Labor Relations Board decision reinstating the union worker fired for making the racist remarks on a picket line. The majority, in an opinion by Judge Duane Benton of Kansas City joined by Judge Diana Murphy of Minneapolis, held that the firing violated federal labor law that protects union workers’ right to strike.

Cooper Tire & Rubber Co. locked union members out of its Findley, Ohio, plant after it had reached an impasse over the collective bargaining agreement. Strike breakers – many of them African American – were brought in from the company’s non-union plant in Tupelo, Mississippi.

At one point, a locked-out Cooper employee – Anthony Runion – shouted racist comments as the replacement workers were escorted into the plant in company vans: “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.”

When union workers were later recalled, Runion was not among them: The company fired him for making the racist statements. The National Labor Relations Board reinstated him with back pay. The company appealed to the Eighth Circuit, which has jurisdiction in Iowa and six other Midwestern states, including and Arkansas where Cooper has a tire plant.

The NLRB ruled that Runion’s abusive language was not uncommon on picket lines where tensions between strikers and replacement workers often lead to obscene gestures and vulgar language. But it said that behavior, by itself and without threats or violence, does not mean those workers forfeit their rights under the National Labor Relations Act.

In upholding the NLRB decision, the Eighth Circuit panel followed a 1980 Ninth Circuit decision that a firing for picket-line misconduct constitutes an unfair labor practice unless the alleged misconduct “may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.”

“One of the necessary conditions of picketing is a confrontation in some form between union members and employees,” Judge Benton wrote. “Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers.”

Cooper Tire argued that the NLRB decision conflicted with federal law that protects workers from workplace harassment. But the Eighth Circuit said that, unlike cases where racial slurs and threats of violence extend over several days, “Runion’s comments — even if they had been made in the workplace instead of on the picket line—did not create a hostile work environment.”

In his dissent, Judge Beam of Lincoln said the case presents two issues: “(1) whether Anthony Runion exhibited racial bigotry directed toward African American employees of Cooper Tire and (2) whether the exercise of such bigotry is protected by the terms and conditions of the National Labor Relations Act (NLRA). The answer to question one is clearly yes and the answer to query two is undoubtedly no!”

While he agreed that federal labor law gives locked-out employees the right to picket, “perhaps, in a rough and tumble manner due to disagreeable labor circumstances,” but, the law does not permit “outright racial insult and bigotry as expressed by Runion.”

“The racial epithets expelled by Runion were not simply tolerated, impulsive behavior,” he added. “They were expressions that tended to coerce and intimidate African American employees in the exercise of rights protected under the Act. . . . Discriminatory and degrading stereotypes are not legitimate weapons in economic disputes carried out on the picket line.”


Des Moines will host 2018 Eighth Circuit Judicial Conference

By: Rox Laird on August 1st, 2017

Federal court practitioners and court observers may want to keep their schedules flexible next summer: The 2018 Eighth Circuit Judicial Conference is scheduled to be held in Des Moines Aug. 15-17.

The conference could feature an appearance by U.S. Supreme Court Justice Neil Gorsuch, who was assigned last month by Chief Justice John Roberts to be the circuit justice for the Eighth Circuit, which is made up of Iowa, Minnesota, North and South Dakota, Nebraska, Missouri and Arkansas.

Gorsuch replaces Justice Samuel Alito Jr., who was assigned to the Third Circuit. Previously, Justice Clarence Thomas was the circuit justice for the Eighth Circuit. For many years, Justice Harry Blackmun, a Minnesota native, had that assignment.

Among other duties, the circuit justice typically attends the judicial conference held in one of the states in the circuit. It’s too early to say for certain whether Gorsuch will attend the Des Moines conference, however.

While attendance at judicial conferences is limited to judges in odd-numbered years, it is open to members of the bar in even-numbered years. Those sessions typically include speeches and panel discussions on court-related topics that regularly draw lawyers who practice in the federal courts.

The 2016 circuit conference, held in Rogers, Arkansas, in May included a speech by Chief Justice Roberts. The circuit conference was last held in Des Moines in July 1995.

The 2018 event will be held at the Community Choice Credit Union Convention Center. The Hilton Hotel, which is under construction adjacent to the convention center, is expected to open next spring.


Federal appeals court upholds dismissal of lawsuit in fatal shooting by Iowa deputy sheriff

By: Rox Laird on May 15th, 2017

A federal appeals court Monday upheld the summary-judgment dismissal of an Iowa family’s civil lawsuit following the shooting death of Robert Michael Dooley by a Van Buren County sheriff’s deputy.

A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit acknowledged that while the incident might have been avoided had it been handled differently, the officer’s actions did not violate the shooting victim’s constitutional rights.

Two Van Buren deputies were dispatched following reports of a man walking along Highway 2 toward Cantril, waving obscene hand gestures at passing motorists. An American flag was hung upside-down from the trunk of his car. He was wearing a military-style uniform. And he was carrying what appeared to be a rifle slung over his right shoulder with the muzzle pointed toward the ground and his right hand placed on or near the barrel.

When the deputies pulled up behind Dooley’s car, Deputy Sheriff Jon Tharp shouted at the man – later identified as Dooley – to “Drop the gun! Drop it!”

According to the trial court, a video recording from the deputies’ dashboard camera shows Dooley moving the rifle in an “arc-like” motion. In response, Tharp fired a single shot that struck Dooley in the head, killing him instantly.

The Iowa Division of Criminal Investigation said no criminal charges would be filed because Tharp acted in self-defense. Dooley’s estate and family filed a civil suit in state court, which was removed to federal court, alleging that Tharp used excessive force in violation of Dooley’s Fourth Amendment rights.

Chief Magistrate Judge Helen C. Adams granted Tharp’s motion for summary judgement, concluding the deputy was entitled to qualified immunity because his use of force was “objectively reasonable.”

The Eighth Circuit panel upheld the trial court ruling in a decision written by Judge Roger Wollman joined by Judges Diana Murphy and Arlen Beam.

The court said there was “a genuine issue of fact whether Tharp used excessive force.” Dooley’s weapon turned out to be a pellet gun, and his movements suggested he was attempting to follow the deputy’s order to drop the gun rather than point it at the officers.

A frame-by-frame review of the video “appears to contradict the officers’ description,” Wollman wrote.

The video “shows Dooley turning to face the deputies and using his right hand to maneuver the rifle. It also shows that Dooley did not place his right hand near the trigger and did not place his left hand on the rifle. It shows that at the moment of the bullet’s impact, Dooley’s arms were crossed over his chest and the muzzle of the rifle was pointed toward the sky.”

But the court said law-enforcement officers do not have the opportunity to see in frame-by-frame slow motion what to them appears to be a life-threating situation, and Tharp’s action was “objectively reasonable” based on his perception that Dooley posed a threat of serious physical harm.

While “less confrontational approach to the situation facing them . . . might have prevented this needless loss of life,” the court said Dooley’s actions coupled with Tharp’s belief that Dooley was aiming his weapon at the officers “ultimately resulted in his death.”


Sidewalk evangelist loses again before federal Court of Appeals

By: Rox Laird on May 3rd, 2017

A Christian evangelist who wants to take his religious message to the Iowa State Fair has again been rebuffed by the U.S. Court of Appeals for the Eighth Circuit.

The federal appeals court based in St. Louis, which has jurisdiction in seven Midwest states including Iowa, ruled that Jason Powell failed to show a likelihood of irreparable harm or a reasonable probability of showing State Fair officials violated his rights under the due-process clause of the Constitution.

Powell filed suit in federal court asserting that his First Amendment and due-process rights were violated when State Fair officials ordered him not to stand on sidewalks just outside fairgrounds entrances because he blocked pedestrian traffic.

In 2015, U.S. District Judge Robert Pratt in Des Moines denied Powell’s request for an injunction that would have allowed him to carry a pole-mounted sign and engage with fairgoers while standing on fairgrounds property. Pratt held that the area immediately outside the fairgrounds was a limited public forum and the restrictions on Powell’s speech were reasonable and viewpoint-neutral.

The Eighth Circuit upheld that decision but remanded the case for the trial court to consider Powell’s due-process claim. Pratt subsequently rejected Powell’s due-process claim, and a three-judge panel of the court Tuesday upheld that ruling.

“Powell’s complaint is that the unwritten Fair rules are too vague to provide fair notice of what conduct is prohibited and to avoid arbitrary and discriminatory enforcement,” Eighth Circuit Judge Steven Colloton of Des Moines wrote for the panel.

“This court ruled in the first appeal that Powell is unlikely to succeed on a First Amendment claim, because the rules are reasonable restrictions on the time, place, and manner of speech.  Given that speech covered by the Fair’s rules is properly restricted, Powell’s notice claim must be that the rules threaten to chill speech that falls outside the scope of the rules. In other words, Powell contends that the alleged vagueness of the rules leads fairgoers to ‘steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.’ We see no likelihood of success on this claim.”

Moreover, the panel held, leading court precedents on vagueness doctrine involve threats of punishment whereas a violation of the State Fair rules “triggers no criminal liability and no civil monetary penalty; the only sanction for violating rules of the Fair is ejection from the Fair. Criminal penalties might apply only if an ejected person commits a separate offense of trespass after receiving clear notice of his ejection.”

Circuit Judge Bobby Shepherd of Arkansas in a separate opinion concurred with the majority on Powell’s claim of irreparable harm but said he would have held that Powell had a “reasonable probability” of succeeding on the merits of his due-process claim.

Unlike the majority, Shepherd saw the State Fair’s policy as potentially punitive because Powell would have faced arrest if he returned to the fairgrounds after being ejected for violating the policies. “I would therefore hold that the Fair policies, though not outright threats to liberty, are at least quasi-criminal.” Shepherd also said Powell did not have sufficient notice of the State Fair’s unwritten policy forbidding his sidewalk speech that is required by due process.

In addition to Colloton and Shepherd, Powell’s latest appeal was heard by Circuit Judge Michael Melloy of Cedar Rapids.


Eighth Circuit Court of Appeals rules twice in one week upholding Arkansas death penalty process

By: Rox Laird on April 21st, 2017

The U.S. Court of Appeals for the Eighth Circuit issued two rulings this week, clearing the way for Arkansas to carry out its plan to execute eight convicted murderers. That is assuming there are no more emergency appeals to state and federal courts.

Late Thursday, the St. Louis-based Court of Appeals, which has jurisdiction over seven Midwest states including Iowa, upheld an Arkansas trial court’s rejection of an appeal by four prisoners challenging the application of the state’s clemency procedure. On Monday, the court struck down an order by another Arkansas trial judge that temporarily halted executions of death row inmates that had been scheduled to begin Monday.

Eight active members of the Court of Appeals participated in both cases. Judge Jane Kelly, based in Cedar Rapids, filed dissenting opinions in both.

In Thursday’s ruling on Arkansas’s clemency procedures, the majority ruled that “the district court was correct in determining that, despite the procedural shortcomings in the clemency process, the inmates received the minimal due process guaranteed by the Fourteenth Amendment.”

Kelly wrote in dissent that she would have granted the motion to stay the executions because the prisoners showed a “significant possibility that they were denied due process.”

On the question of the constitutionality of Arkansas’s application of the death penalty, the majority on Monday held that the prisoners were unlikely to succeed in showing a violation of their constitutional rights under the cruel-and-unusual-punishment provision of the Eighth Amendment.

First, the prisoners failed to bring their federal claim early enough in the process, which created a presumption against granting a stay of execution; second, the prisoners were unlikely to succeed in showing the state’s method of execution created an “objectively intolerable risk” of severe pain; and, third, even assuming a risk of pain, the availability of alternative methods cited by the district court are “too uncertain to satisfy the rigorous standard under the Eighth Amendment.”

Judge Kelly, however, said the trial judge was correct in finding that the petitioners had demonstrated that the lethal-injection drug procedure “presents a substantial risk of serious harm” in violation of the Eighth Amendment.

But Kelly said the death row inmates’ core constitutional claim was Arkansas’s plan to carry out eight executions – two a day over 11 days. The rapid pace of executions would create stress for prison staff, reduce preparation time, and eliminate opportunity for “debriefing” to make corrections if something went wrong.

“The state’s expedited execution schedule is troubling on a more fundamental level,” Kelly wrote, quoting an earlier U.S. Supreme Court opinion saying that throughout history society has “steadily moved to more humane methods of carrying out capital punishment.” Arkansas’s plan to execute two men per night on four nights over an 11-day period, however, “represents a step backward,” she wrote.


Trump will have three Eighth Circuit vacancies to fill

By: Rox Laird on February 4th, 2017

Besides filling the vacancy on the U.S. Supreme Court created by the death of Justice Antonin Scalia, President Donald Trump has at least 17 vacancies to fill on the federal appeals courts around the country.

That includes three vacancies on the U.S. Court of Appeals for the Eighth Circuit, which has jurisdiction to hear appeals from seven Midwest states including Iowa.

Though they operate in relative obscurity, the 13 United States Courts of Appeals are the second most important federal courts, after the U.S. Supreme Court, and they decide the vast majority of federal criminal and civil appeals.

Court of appeals decisions can be appealed to the Supreme Court, but given the small number of appeals decided each year by the Supreme Court, the courts of appeals are likely to be the court of last resort for most appellants. Thus, the work of these judges establishes law that must be followed by federal courts in the states where they have jurisdiction.

The Eighth Circuit has 11 authorized judgeships to hear appeals from federal courts in Nebraska, North and South Dakota, Minnesota, Iowa, Missouri and Arkansas. There currently are two vacancies on the court and one pending:

Judge Kermit Bye of North Dakota stepped down from active status in April 2015 and retired from the bench last September. The delay in filling the vacancy has created a “judicial emergency,” according to the federal courts, which means a vacancy for more than 18 months where adjusted case filings are between 500 and 700 cases per panel.

Judge Diana Murphy of Minnesota took senior status last year, which means she will continue to hear cases but on a reduced caseload.

In June, there will be a third vacancy. Chief Judge William Jay Riley of Nebraska recently announced that he will take senior status at that time. Judge Lavenski Smith of Arkansas will become chief judge – and the first African-American to serve as chief judge on the Eighth Circuit.

The Republican president’s appointments to fill these vacancies will likely result in a shift of the ideological balance on the Eighth Circuit.

Of the nine active judges now serving on the court, eight were appointed by Republican presidents (Ronald Reagan, George H.W. Bush and George W. Bush). Jane Kelly of Cedar Rapids, who was appointed in 2013 by President Barack Obama, is the lone Democratic appointee.

When the court was last at full strength, three of 11 judges on the court were appointed by Democrats – including Murphy and Bye, both of whom were appointed by Bill Clinton. Assuming three Trump nominees are confirmed, Kelly will be the only member of the court appointed by a Democratic president.

That would make the Eighth Circuit the most ideologically lopsided of all the U.S. Courts of Appeals.

Two current members of the court – Steven Colloton of Des Moines and Raymond W. Gruender of St. Louis – were among the sitting federal circuit judges President Trump considered for the vacancy on the U.S. Supreme Court. Had one of them gotten the nod, he would have been the fourth Eighth Circuit judge – Justice Harry Blackmun of Minnesota being the most recent – to be elevated to the high court.(Follow this link at the Eighth Circuit U.S. Court of Appeals to fine a list of all current members of the court.)


Eighth Circuit to hear arguments Wednesday on ISU trademark use by advocates of legalizing marijuana

By: Rox Laird on December 12th, 2016

The U.S. Court of Appeals for the Eighth Circuit will hear oral arguments Wednesday in St. Paul, Minn., in a trademark dispute between Iowa State University and the campus chapter of the National Organization for the Reform of Marijuana Laws (NORML).

ISU argues that the University’s trademarks constitute government speech and that it controls the use of its trademarks – such as the ISU logo and Cy the Cyclone – to promote the image of the University. ISU wants to preserve the right to control its own speech by preventing its trademarks from being associated with symbols of illicit drug use.

NORML argues that it does not advocate the illegal use of marijuana. Rather, it says it is exercising its First Amendment right to advocate for a change in the laws that make the use of marijuana illegal. NORML argues that, out of 800 student groups on campus, it was singled out by the University for discrimination based on the content of its political advocacy message, which is a violation of the students’ First Amendment rights.

The University appealed a January ruling by U.S. District Judge James Gritzner, which held that the University violated NORML’s First Amendment rights when it prevented the student group from using an image of a cannabis leaf along with the NORML logo on T-shirts bearing Iowa State University trademarks.

Judge Gritzner noted the record showed that ISU has allowed its trademarks to be used by student groups representing a broad range of viewpoints including, among others, pro-life and pro-choice groups, a sexual bondage club and a student organization that supports the rights of gay, lesbian, bisexual, and transgender people.

Rejecting NORML’s use of the ISU trademark “amounts to discrimination on the basis of plaintiffs’ viewpoint,” Gritzner ruled.

The case has attracted two amicus curiae (friend of the court) briefs in support of the NORML student group’s freedom of speech under the First Amendment. One brief is from the Washington, D.C.-based Student Press Law Center; and one was filed on behalf of Students for Life of America, Young Americans for Freedom, Young Americans for Liberty, Ratio Christi, and the Christian Legal Society.

Audio of Wednesday’s oral argument will be available on the website of the Eighth Circuit Court of Appeals.


Police lights = Fourth Amendment seizure? Maybe

By: Administrator on November 22nd, 2016

By Ryan Leemkuil

Would you feel free to drive away if a police officer pulled behind your parked car and turned on his cruiser’s emergency lights?  Variants of this question were recently before the Iowa Supreme Court, the Eighth Circuit, and the U.S. Supreme Court.  So what’d they say?  Does an officer’s use of emergency lights constitute a seizure under the Fourth Amendment?

– Iowa Supreme Court: Yes! At least when coupled with other authoritative acts.  Emergency lights aren’t “per se coercive,” but they at least “imply a police command to stop and remain.”  So when you use the lights, block an exit, and tell someone to “step down here and talk to me,” that’s a seizure

– Eighth Circuit: No! At least if the officer keeps the lights turned down to the “wig wag” setting and doesn’t crank it up to 11 with the “full light bar.”

– U.S. Supreme Court: We don’t know. It denied this cert petition, which noted a split of authority on the issue.

Next time you see those wig-wag lights behind you, keep driving at your own risk. 

*Ryan Leemkuil is legal counsel at Fareway  Stores and before that was an attorney at Nyemaster Goode.


Battle over an acre of farmland may be headed to U.S. Supreme Court

By: Rox Laird on October 31st, 2016

How do you distinguish a wetland from an ordinary piece of farmland?

That question has been the subject of protracted federal agency and court proceedings for eight years. Now it could be considered by the U.S. Supreme Court.

South Dakota farmers Arlen and Cindy Foster have petitioned the Supreme Court to review an April ruling of the U.S. Court of Appeals for the Eighth Circuit, which held that the U.S. Department of Agriculture appropriately designated a piece of the couples’ farmland to be a wetland.

While it’s hard to say whether the Supreme Court will accept the case, the justices are more likely to weigh in when there is a split among the federal courts of appeals, as there is on this issue. 

This appeal has implications for Iowa, which is within the jurisdiction of the Eighth Circuit, and which has similar wetland characteristics as South Dakota and several other Midwest states in what’s known as the Prairie Pothole Region.

Congress included a “Swampbuster” provision in the 1985 Farm Bill to protect wetlands from being converted to cropland. The law discourages wetlands destruction by denying federal farm assistance, such as subsidized crop insurance.

Although this case involves less than an acre of farm ground, it has larger implications for farmers throughout the Midwest who may be denied federal assistance by the Swampbuster provision.

The question for farmers like the Fosters is just how the USDA defines a wetland. In their case, the agency – following its administrative rules and procedures – did that by comparing the disputed piece of their ground to a wetland more than 30 miles away.

A larger question, however, is whether the federal courts should defer to the USDA’s interpretation of its own rules, as federal appeals courts for the Eighth and the Sixth Circuits Court have done. Or should the courts not defer to the USDA, as the Fifth Circuit has held?

As evidence of national interest, the Fosters’ petition is supported by amicus curiae briefs filed by the American Farm Bureau Federation, the Cato Institute and the Center for Constitutional Jurisprudence on behalf of itself and two small-business groups.

Here’s how the Center for Constitutional Jurisprudence summarized the question before the Court: “Does a civil service employee have the power to bind the judicial branch of government to the employee’s understanding of the meaning and application of agency rules and guidelines?”

To read the Fosters’ petition and the supporting briefs, see the case page on SCOTUSBlog.com.


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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.



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