In Their Opinion : Seventh Circuit Court of Appeals Commentary : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

DIRECTV v. BARCZEWSKI (May 13, 2010)

David Barczewski and Jonathan Wisler purchased electronic equipment that was actually marketed for its ability to intercept DirecTV signals. They both also participated in discussion groups whose purpose was to exchange advice about intercepting and decrypting those signals. When DirecTV sued them, a jury found that Wisler had intercepted signals without authorization for 435 days and that Barczewski had distributed four unauthorized decryption devices. The court imposed a statutory penalty of $44,000 against Barczewski and $43,500 against Wisler. Barczewski and Wisler appeal.

In their opinion, Chief Judge Easterbrook and Judges Flaum and Sykes affirmed in part and vacated and remanded in part. The Court first summarily rejected defendants' contentions that DirecTV did not have a private right of action under 18 U.S.C. § 2520 or 47 U.S.C. § 605. It noted that every court of appeals that had considered the questions agreed. It also quickly disposed of their argument that an exception in the statute for an "aeronautical communication system" applied because a DirecTV witness at trial stated that DirecTV was such a system. Whatever the witness meant, the Court interpreted the statute and concluded that DirecTV is not the kind of system referred to in the exception. Finally, the Court addressed the issue of the penalty. Although it affirmed the calculation of Barczewski’s penalty, it vacated the award of the penalty against Wisler. The statute provides that a court "may” assess the greater of a) the sum of the plaintiff's damages and the violator's profits, or b) the greater of $100 per day of violation or $10,000. In 1990, the Court held, in Rodgers v. Wood, that the imposition of the highest penalty under that calculation was mandatory. Part of the Rodgers rationale was that Congress changed the statute and replaced “shall” with “may” without any explanation for a change from mandatory to discretionary. Rodgers was also the first Court of Appeals decision interpreting that section. Since Rodgers, each of the four other circuits that have addressed the question has disagreed – and concluded that the language is permissive. Upon a careful review of the statutory language, the rationale of Rodgers, the analyses from the other circuits, and the policy considerations, the Court overruled Rodgers' holding that the maximum penalty was mandatory. It vacated the award and remanded to the district court.

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FINCHER v. SOUTH BEND HERITAGE FOUNDATION (May 10, 2010)

The South Bend Housing Authority (SBHA) evicted Marshall Fincher from one of its public housing units. Fincher then requested tenancy, under Section 8 of the United States Housing Act, in a building owned by the South Bend Heritage Foundation (SBHF). Based on the eviction, SBHF denied his application without a hearing. Fincher brought suit against SBHF. The district court granted summary judgment to SBHF, concluding that Fincher did not have a property interest in any specific SBHF housing and that he failed to identify any contract term between SBHF and HUD for which he was a claimed third-party beneficiary. Fincher appeals.

In their opinion, Circuit Judges Flaum and Wood and District Judge St. Eve affirmed. The Court noted that its 1984 decision in Eidson v. Pierce held that there was no property interest for a Section 8 applicant for a housing unit. Considering Fincher's request that Eidson be overruled, the Court reviewed the analysis of the case and noted that another circuit had expressly adopted its reasoning. The only circuit to squarely contradict the case did so in 1982 -- and its reasoning was considered and rejected in Eidson. The Court distinguished the few other cases brought forth by Fincher. Finding that Eidson was well reasoned and seeing no significant changes in the law since its publication, the Court declined to overturn it. With respect to the third party beneficiary claim, the Court agreed with the district court that Fincher cited no contract term or federal housing regulation that gives rise to any enforceable right.

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PARISH v. CHICAGO (February 3, 2010)

Michael Parish was arrested in May of 2005 and held in custody until June of 2007, when he was acquitted of a murder charge. Parish brought suit against the City of Chicago and several police officers under § 1983, claiming malicious prosecution in violation of the Fourth Amendment. He alleged, among other findings, that the officers suppressed favorable evidence, prepared false reports, and fabricated evidence. Parish conceded in the district court that the prevailing Seventh Circuit precedent of Newsome precluded his claim. The district court dismissed. Parish appeals

In their opinion, Judges Coffey, Evans, and Williams affirmed. In Newsome, the Seventh Circuit held that the existence of a state law malicious prosecution claim precludes a constitutional tort under the due process clause. Parish concedes as much but seeks reconsideration of Newsome in light of a footnote in the Supreme Court's subsequent opinion in Wallace. In that footnote, the Supreme Court stated that it had never and was not evaluating a §1983 Fourth Amendment malicious prosecution claim. The Court noted that it had already once rejected an invitation to revisit Newsome in Johnson v. Saville. It saw no reason to do so now. However, as an aside, the Court stated that Newsome did not preclude a Brady-type due process claim. Given Parish's allegations, he may well have had such a claim after his acquittal.

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NATIONAL RIFLE ASSOCIATION OF AMERICA v. CITY OF CHICAGO (June 2, 2009)
 

The City of Chicago and the Village of Oak Park, Illinois both ban the possession of most handguns. The Supreme Court decided District of Columbia v. Heller in 2008, holding that the Second Amendment prohibited the District of Columbia from banning the possession of handguns for self protection. The National Rifle Association then sued the municipalities. The district court dismissed the suits against Chicago and Oak Park because Heller dealt with the authority of the District of Columbia. In other, older cases the Supreme Court has refused to apply the Second Amendment to the states. The NRA appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Posner affirmed. The Court conceded that the Supreme Court, in Cruikshank, Presser and Miller, was presented with arguments based on the privileges and immunities clause. The NRA argues that the Second Amendment should be applied to the states under the "selective incorporation" approach that was not argued in those cases. The Court rejected that argument, stating that it is bound to follow the Supreme Court precedent if it has "direct application" to the case, even if a different argument is presented and even if the original reasoning has been brought into question over time. The Second Amendment precedent does have direct application as is evident from the Supreme Court's footnote 23 in Heller itself. There, the Supreme Court specifically commented that the continuing vitality of that precedent was not before it. The Court concluded that it is up to the Supreme Court to revisit the issue, even if the current legal theory is not the one addressed by the precedent. The Court added its own view that it is not convinced, as some others are, that the Supreme Court will change its approach to the Second Amendment when afforded the opportunity.

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