Gabriel Malor

@gabrielmalor.bsky.social

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Oklahoman in Virginia. Appellate attorney. I talk about federal court decisions. A lot. Sometimes the most you can do is the best you can do. gabriel.malor@gmail.com

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Gabriel Malor·1h

2d Cir. revives a 1A/14A suit from student who was disciplined for off-campus speech on social media, which was unrelated to school and which he immediately took down, that some students found offensive. (It was a Snap with another student kneeling on his neck.) ww3.ca2.uscourts.gov/decisions/is...

On appeal, Leroy contends that the district court erred because any
disruption that occurred did not deprive his off-campus speech of First
Amendment protection. In analyzing this contention, we consider (i) the nature
of Leroy’s speech, (ii) where, when, and how he spoke, and (iii) the school’s
interests in regulating that speech, in light of the features of off-campus speech
identified by the Supreme Court that “diminish the strength of the unique
educational characteristics that might call for special First Amendment leeway,”
Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180 (2021). We conclude that the school’s
disciplinary actions violated the First Amendment. Accordingly, we REVERSE
the judgment of the district court and remand for further proceedings.

Gabriel Malor·5h

Here's an important one that slipped by on Monday. Fed. judge quashes DOJ subpoena seeking the personal health data of trans patients as "prosecutorial coercion" and "for an improper purpose," namely, intimidating trans people and their medical providers. storage.courtlistener.com/recap/gov.us...

This mismatch is not just a technicality. It suggests that DOJ issued the
subpoena first and searched for a justification second. No legitimate investigation
would demand thousands of patient records from an entity that cannot, by
definition, commit the violations being investigated. DOJ’s inability to articulate
why it is investigating QueerDoc specifically—beyond noting it is a “prominent”
Case 2:25-mc-00042-JNW Document 27 Filed 10/27/25 Page 13 of 16
ORDER - 14
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provider—confirms that QueerDoc was targeted for what it does (provide genderaffirming care) rather than how it does it (through any unlawful means).2

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Gabriel Malor·1d

DOJ may believe its motion to dismiss has relieved it of its obligation to obey the district court's order to file a signed declaration by 5pm Pacific today explaining who was responsible for its apparently faulty Henthorn and Brady reviews. DOJ has missed its deadline.

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Gabriel Malor·1d

9th Cir. will rehear en banc* whether Trump can deploy the National Guard to Portland based on pretext and, we now know, exaggerated claims during the prior litigation. Order --> cdn.ca9.uscourts.gov/datastore/op...

Gabriel Malor·1d

5th Cir. has ordered that the Texas Ten Commandments case will be heard en banc (without a prior panel decision) along with the Louisiana Ten Commandments case, which was already set for en banc rehearing. Order --> www.ca5.uscourts.gov/opinions/pub...

ON MOTION FOR INITIAL HEARING EN BANC
Before Elrod, Chief Judge, and Jones, Smith, Stewart,
Richman, Southwick, Haynes, Graves, Higginson,
Willett, Ho, Duncan, Engelhardt, Oldham, Wilson,
Douglas, and Ramirez, Circuit Judges.
Per Curiam:
A member of the court having requested a poll on the motion for initial
hearing en banc, and a majority of the circuit judges in regular active service
and not disqualified having voted in favor,
IT IS ORDERED that this case shall be heard by the court en banc
with oral argument along with 24-30706, Roake v. Brumley on a date hereafter
to be fixed. The Clerk will issue an expedited briefing schedule.
IT IS FURTHER ORDERED that Appellants’ motions to stay
further proceedings and for an extension of time to file brief are DENIED
AS MOOT.

Gabriel Malor·1d

Justice Kavanaugh: "and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States."

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Gabriel Malor·2d

4th Cir. revives bellwether case from localities against drug distributors they allege are partially responsible for the opioid epidemic. Held: under West Virginia law conditions resulting from over-distribution of opioids can constitute a public nuisance. www.ca4.uscourts.gov/opinions/221...

In view of (1) West Virginia’s broad definition of a public nuisance, (2) the lack of
any decision by West Virginia’s highest court limiting that definition with respect to
product-based harms, and (3) the high court’s admonition that “whether a nuisance exists
is a factual issue,” City of Huntington, 915 S.E.2d at 836, we reject the defendants’
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argument that, as a matter of law, a product-based harm cannot constitute a public nuisance.
We hold that, under West Virginia law, an unreasonable interference with a right common
to the general public resulting from the distribution of opioids may qualify as a public
nuisance when the evidence establishes that distribution of this product unreasonably
“operates to hurt or inconvenience an indefinite number of persons.” Kermit Lumber, 488
S.E.2d at 921 (citation omitted).

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