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8th U.S. Circuit Court of Appeals Digest: Oct. 4, 2023

Minnesota Lawyer//October 5, 2023//

The seal for the United States Court of Appeals, Eighth Circuit

8th U.S. Circuit Court of Appeals Digest: Oct. 4, 2023

Minnesota Lawyer//October 5, 2023//

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Civil Rights


Inmate Action

Equal Protection; Individual-Capacity Claim

Where an inmate challenged the dismissal of her civil rights claims, the district court did not err in dismissing the retaliation and official-capacity equal protection claims, but the inmate adequately stated an individual-capacity equal protection claim by alleging that she and other Black inmates were denied privileges allowed to White inmates and that the rules were unequally enforced against them on multiple occasions.

Judgment is reversed and remanded.

Richardson v. McGinnis (MLW No. 80563/Case No. 23-2142 – 2 pages) (U.S. Court of Appeals, 8th Circuit, per curiam) Appealed from U.S. District Court, Eastern District of Arkansas.




School Transgender Policy

Freedom of Speech/Substantive Due Process; Article III Standing

Plaintiffs appealed the denial of their motion for a preliminary injunction to bar defendant school district from enforcing its transgender student policy, which authorized the creation of gender support plans for transgender students and imposed discipline upon students and staff who refused to respect a student’s gender identity. Plaintiffs challenged the policy on grounds that the school could create gender support plans for their children without their knowledge or consent and that the disciplinary provisions of the policy violated the First Amendment by forcing students to conform to policies inconsistent with their fundamental beliefs. The district court denied plaintiffs’ preliminary injunction motion on grounds that they had failed to establish Article III standing or a likelihood of success on the merits.

Where at least one plaintiff had established Article III standing by alleging that their child had been chilled by the policy from expressing his political belief that gender was immutable and that he was uncomfortable sharing bathroom facilities with transgender students and where plaintiffs had demonstrated a viable argument that the policy was void for vagueness by failing to define what behavior constituted required “respect,” the district court erred in denying a preliminary injunction.

Kelly, J., concurring: “But it is important to note that the problem with Board Policy 504.13-R is not that it seeks to regulate opinions about issues related to gender identity or “merely offensive” speech. It does not. Rather, Board Policy 504.13-R seeks to “ensure a safe, affirming, and healthy school environment” where every student, including those of all gender identities, “can learn effectively.” The District may have used language that is insufficiently tailored to its effort to achieve this goal. But the goal itself is not only appropriately inclusive and well within the scope of the District’s educational mission.”

Judgment is reversed on one claim and appeal is dismissed in part as moot.

Parents Defending Education v. Linn Mar Community School District (MLW No. 80560/Case No. 22-2927 – 18 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Appealed from U.S. District Court, Northern District of Iowa, Williams, J.



Criminal Law


Child Sexual Abuse

Witness Testimony; Restitution

Where a defendant convicted of sexual abuse of a minor challenged the admission of witness testimony from the victim’s friends and school principal, to the extent that the testimony was offered to explain the origins of the investigation, its admission was proper, and additional testimony that improperly bolstered the credibility of the victim was cumulative of other admissible testimony, so there was no grounds for reversal, and a violation of notice requirements did not prejudice the defendant so the judgment is affirmed, and the matter is remanded for further proceedings on the proper amount of restitution.

Judgment is affirmed; remanded.

U.S. v. Mackey (MLW No. 80561/Case No. 22-1590 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Kelly, J.) Appealed from U.S. District Court, District of Nebraska, Bataillon, J.



Supervised Release

Special Condition; Scope

Where a defendant challenged a special condition of supervised release that prohibited his contact with his fiancée after domestic assault issues except for phone calls and texts specifically on the subject of the restaurant they run together, the defendant’s issue with the scope of the special condition was not preserved for appeal since the conditions reflected the conditions his attorney requested, and the defendant did not raise objections when he had the opportunity.

Judgment is affirmed.

U.S. v. Swehla (MLW No. 80562/Case No. 22-3443 – 7 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, Northern District of Iowa, Williams, J.

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