Gabriel Malor
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gabrielmalor.bsky.social
Gabriel Malor
@gabrielmalor.bsky.social
19K followers 190 following 9.1K posts
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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gabrielmalor.bsky.social
9th Cir.: (1) it did not violate the Fourth Amendment when officers accidentally killed a 12 year-old while shooting at his kidnapper bc there was no 4A seizure; and (2) even if it did violate a right, it wasn't clearly established law so officers would get QI.

cdn.ca9.uscourts.gov/datastore/op...
The conclusions reached above hold true even considering that Bourne was shot and incapacitated two 4 See, e.g., Childress v. City of Arapaho, 210 F.3d 1154, 1157 (10th Cir. 2000); Medeiros v. O’Connell, 150 F.3d 164, 168 (2d Cir. 1998); Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795 (1st Cir. 1990). 16 HAWATMEH V. CITYOF HENDERSON seconds before the volley of shots that killed Joseph. We do not go so far as to conclude that a separate causal chain of events could not give rise to a Fourth Amendment claim after a hostage-taker has been incapacitated. But we do conclude that, as a matter of law, a two-second window is insufficient to transform a situation from one initiated and controlled by a hostage-taker to one initiated and controlled by police. 2. Even had Plaintiffs plausibly alleged a constitutional violation, the HPD officers would be entitled to qualified immunity because Joseph’s right to be free of excessive force during an active hostage situation was not clearly established at the time of the violation.
November 7, 2025 at 7:22 PM
gabrielmalor.bsky.social
6th Cir. will allow the Fraternal Order of Police (union) to intervene in a civil rights action brought by the estate of a black man who was killed by police against Columbus, Ohio PD on the grounds that the city might agree to remedies the union won't like.

www.opn.ca6.uscourts.gov/opinions.pdf...
On these facts, FOP has established that the City may pursue a different trial strategy than FOP would. And if the Estate and the City settle, then the City might agree to excise some policies, important to FOP and its membership, in exchange for concessions by the Estate. Thus, FOP has shown, at the very least, that the City likely would not make the same arguments FOP would. Like the proposed intervenor in Miller, FOP has presented concrete evidence that the City’s litigation strategy may meaningfully diverge from the one FOP would pursue. 103 F.3d at 1248 (concluding that when a proposed intervenor sought to appeal a preliminary injunction and the current parties did not, that was enough to show that the parties inadequately represented the intervenor’s interest). The circumstances demonstrate that the City’s defense possibly will be inadequate to protect FOP’s substantial legal interests.
November 7, 2025 at 7:11 PM
gabrielmalor.bsky.social
Fed. judge issues TRO to address constitutional deficiencies in ICE detention facility in Broadville, Illinois.

storage.courtlistener.com/recap/gov.us...
1. Defendants shall provide all persons detained at Broadview (“Detainee” or “Detainees”) overnight in any hold room, cell, or other space (collectively referred to as a “Hold Room”) with a clean bedding mat and bedding with sufficient space to sleep; 2. Each Hold Room must be cleaned at least twice each day; 3. Each Hold Room must be furnished with a clock that prominently displays the time and date; 4. Each Detainee shall be furnished with adequate supplies of soap, towels, toilet paper, oral hygiene products (including toothbrushes and toothpaste) and menstrual products for women Detainees; 5. Defendants shall provide showers for each Detainee at least every other day; 6. Defendants shall provide clean toilet facilities; 7. Defendants shall provide each Detainee with at least three full meals per day that meet the U.S. recommended dietary allowances; 8. Defendants shall provide each Detainee with a bottle of potable water with each meal and bottled water upon request free of charge; 9. Defendants shall provide each Detainee with prescribed medication that was within Detainee’s possession when arrested, along with any prescribed medications dropped off by family members or the Detainee’s counsel for the use of the Detainee. Defendants shall also provide any storage requirements for medications; 10. Defendants shall provide telephone services for each Detainee to communicate with the Detainee’s counsel in private and without cost; 11. Defendants shall ensure that all attorney-client communications are carried out in a manner to protect the attorney-client privilege between the Detainee and the Detainee’s counsel; 12. All Detainees must be provided upon arrival or as soon thereafter is possible with a list of pro bono attorneys in English and Spanish, and provide interpreter services as necessary, as set forth in the Byers Declaration [ECF 38];
November 5, 2025 at 11:07 PM
gabrielmalor.bsky.social
This guy looking lost at an end cap.

Christmas music season has officially begun.
A cardboard standup of Peanuts character Linus (??) and a Christmas tree in a grocery store at the end of an aisle.
November 5, 2025 at 1:48 AM
gabrielmalor.bsky.social
9th Cir. holds that it did not violate the takings clause for officers to fire dozens of tear gas canisters through a shop's walls, door, roof, and windows to get at a fugitive, which damaged the store and inventory.

Held: a public safety exception applies.

cdn.ca9.uscourts.gov/datastore/op...
The reckless actions of a fugitive and, consequently, the necessary and reasonable actions of law enforcement officers caused Pena to suffer a personal loss. The Takings Clause, however, provides Pena no remedy. As understood at the time of the Founding, and as centuries of precedent confirm, when law enforcement officers destroy or damage private property in the necessary and reasonable defense of public safety, such destruction is exempt from the scope of the federal Takings Clause. Pena therefore fails to state a Takings Clause claim under the U.S. Constitution.
November 4, 2025 at 8:05 PM
gabrielmalor.bsky.social
9th Cir. rejects claim that the requirement that men register with the Selective Service System, but not women, violates the ERA.

Held: the ERA has not been ratified and published or certified by the Archivist.

cdn.ca9.uscourts.gov/datastore/op...
Valame alleges that the MSSA’s requirement that men, but not women, register with the Selective Service System violates his rights under the Equal Rights Amendment (“ERA”), which Valame contends was ratified as the Twenty-Eighth Amendment to the Constitution. However, the ERA was not ratified by three-fourths of the States prior to the deadline set by Congress, June 30, 1982, and the Archivist of the United States did not publish or certify the ERA. See Illinois v. Ferriero, 60 F.4th 704, 710-13 (D.C. Cir. 2023). Therefore, the district court properly dismissed Valame’s claims under the ERA for failure to state a plausible claim. See Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013) (explaining that dismissal “under Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory”).
November 4, 2025 at 8:00 PM
gabrielmalor.bsky.social
It appears that Lindsey Halligan was confused by Judge Currie's order to provide COMPLETE grand jury transcripts related to her role in Comey's indictment.

Judge has ordered her to cough up the missing transcripts by tomorrow at 5pm.

storage.courtlistener.com/recap/gov.us...
On October 28, 2025, the undersigned entered an order directing the Government to submit, for in camera review, “all documents relating to the indictment signer’s participation in the grand jury proceedings, along with complete grand jury transcripts.” ECF No. 95. On Friday, October 31, 2025, the court received a package containing, inter alia, a “Transcript of Grand Jury proceedings on September 25, 2025.” This court has reviewed the transcript and finds it fails to include remarks made by the indictment signer both before and after the testimony of the sole witness, which remarks were referenced by the indictment signer during the witness’s testimony. In addition, the package contains no records or transcripts regarding the presentation of the three-count indictment referenced in the Transcript of the Return of Grand Jury Indictment Proceedings before the Magistrate Judge. See ECF No. 10.
November 4, 2025 at 6:12 PM
gabrielmalor.bsky.social
I voted by mail weeks ago (knowing I would be in Texas rn), but the DH reports that our polling place has leftover Halloween candy. He was the fourth person in line this morning bc he's crazy excited about voting (and stopped on his way home from the gym).
A sticker that reads: "November 4, 2025" and "Office of Elections Spostylvania County, VA" and "I voted today." It is illustrated by a circle, one half of which has part of the U.S. flag and the other half of which has part of the seal of the County of Spotsylvania, Virginia.
November 4, 2025 at 5:51 PM
gabrielmalor.bsky.social
The words "timely filed indictment" are doing a lot of unsupported-but-loadbearing work in DOJ's argument that AG Bondi can ratify Trump attorney Lindsey Halligan's indictment against James Comey notwithstanding her appointment problem.

storage.courtlistener.com/recap/gov.us...
Comey may respond that a ratifying principal must have been able to take that action “at the time the ratification was made,” FEC v. NRA Political Victory Fund, 513 U.S. 88, 98 (1994), and the statute of limitations for his offenses (but not James’) expired before the Attorney General’s October 31 ratification order. But when a timely filed indictment is “dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment.” 18 U.S.C. § 3288. Because the Attorney General could personally obtain a new indictment using that grace period, she may ratify Comey’s existing indictment.
November 3, 2025 at 10:02 PM
gabrielmalor.bsky.social
10th Cir. holds that noncitizen who successfully petitions for habeas corpus from immigration detention can seek EAJA fees because habeas in this posture is a purely civil action.

www.ca10.uscourts.gov/sites/ca10/f...
The EAJA may be a broad statute, but a statute is not ambiguous just because it is broad. Here, we read the EAJA’s broad language to unambiguously authorize fees in habeas actions challenging immigration detention. AFFIRMED.
November 3, 2025 at 7:17 PM
gabrielmalor.bsky.social
Note, however, the attached declaration suggests that it may take states "anywhere from a few weeks to up to several months" to make the changes necessary to issue partial SNAP benefits.
29. For at least some States, USDA’s understanding is that the system changes States must implement to provide the reduced benefit amounts will take anywhere from a few weeks to up to several months. See Penn Decl. Doc. No. 14-2 ¶ 25. 30. In addition to adjusting eligibility and benefit issuance files to accommodate the reduction, States must notify all SNAP households of the reduction, as well as handle any requests for fair hearings from SNAP households related to the reduction. See 7 C.F.R. 271.7(d)(4) and (f). 31. As noted above, USDA will issue the appropriate notice and issuance tables today to comply with the Court’s order.
November 3, 2025 at 5:54 PM
gabrielmalor.bsky.social
UPDATE: the Trump administration has filed a status report in which it says it will spend the full amount of SNAP contingency funds (which will mean households get a partial payment some time later this month).

Status report --> storage.courtlistener.com/recap/gov.us...
explains that the U.S. Department of Agriculture is complying with the Court’s order and will fulfill its obligation to expend the full amount of SNAP contingency funds today by generating the table required for States to calculate the benefits available for each eligible household in that State. 7 C.F.R. § 271.7(d)(1); Supp. Declaration of Patrick A. Penn, ¶¶ 2–6, 24–31. USDA will therefore have made the necessary funds available and have authorized the States to begin disbursements once the table is issued. The attached declaration also explains why USDA has determined not to use Section 32 Child Nutrition Program funds or other funds to provide full SNAP payments for the month of November. Penn Supp. Decl. ¶¶ 7–23. Dated: November 3, 2025 Respectfully submitted,
November 3, 2025 at 5:51 PM
gabrielmalor.bsky.social
Also over the weekend, fed. judge issues a PI blocking Trump from federalizing and deploying National Guard troops to Oregon.

storage.courtlistener.com/recap/gov.us...
Accordingly, for the reasons stated below, this Court determines based on the trial testimony, and the exhibits it has reviewed so far, that Plaintiffs are entitled to a preliminary injunction on their claims that Defendants’ federalization and deployment of the National Guard to Oregon violates 10 U.S.C. § 12406 and the Tenth Amendment. This Court therefore preliminarily enjoins Defendant Secretary of Defense Hegseth from implementing (1) the September 28, 2025 Memorandum federalizing and deploying the Oregon National Guard, Ex. 192; (2) the October 5, 2025 Memorandum federalizing and deploying the Texas National Guard, to the extent that it deploys members of the Texas National Guard in Oregon, Ex. 6; (3) the October 16, 2025 Memorandum deploying members of the California and Texas National Guards in Oregon, Ex. 2; and (4) any memoranda deploying members of any other State’s National Guard to Oregon based on the same predicate conditions that were relied upon to authorize the above orders. This Court will issue its final opinion on the merits by this Friday, November 7, 2025, no later than 5 p.m. PT.
November 3, 2025 at 3:19 PM
gabrielmalor.bsky.social
ICYMI, Trump posted that he wanted to fund SNAP "as soon as possible . . . [i]f we are given the appropriate legal direction."

So a federal judge said "here's the legal direction" and ordered either full payment by today or partial by Wednesday.

storage.courtlistener.com/recap/gov.us...
Also, the President of the United States stated Friday evening that: I do not want Americans to go hungry . . . [I] ask the Court to clarify how we can legally fund SNAP as soon as possible. . . . If we are given the appropriate legal direction by the Court, it will BE MY HONOR to provide the funding . . . Donald J. Trump (@realDonaldTrump), Truth Social (Oct. 31, 2025, at 6:10 PM).1 So, here’s the ORDER and here’s the legal direction from the Court.2 Having reviewed the Complaint, Motion, Memorandum of Law, Declarations, and evidence in support of the Motion, as well as the papers filed in opposition to this Motion, and 1 The Court greatly appreciates the President’s quick and definitive response to this Court’s Order and his desire to provide the necessary SNAP funding.
November 3, 2025 at 3:14 PM
gabrielmalor.bsky.social
5th Cir. holds that UT professor whose colleagues were jerks to him for being confrontational about his conservative views has not pleaded a First Amendment violation.

"We [...] abjure the opportunity to become the Federal Faculty Lounge Police."

www.ca5.uscourts.gov/opinions/pub...
Lowery has standing to press his claims, but those claims cannot suc- ceed. His retaliation claim fails because he did not suffer an adverse employ- ment action. His self-chill claim fails because it is a re-packaged retaliation claim. His speech code claim fails because his complaint does not sufficiently allege facts from which to infer the existence of an unconstitutional policy. And his discovery disputes cannot overcome the abuse-of-discretion stan- dard or Lowery’s requirement to show prejudice. The judgment is accord- ingly AFFIRMED.
October 31, 2025 at 11:32 PM
gabrielmalor.bsky.social
Fed. judge holds that Trump's EO requiring federal election registration forms to include a proof-of-citizenship requirement is unconstitutional bc Congress has not delegated "any such power" to the president.

storage.courtlistener.com/recap/gov.us...
Starting with the Constitution, the Elections Clause provides that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” U.S. Const. art. I, § 4, cl. 1. The broad scope of this provision empowers States to establish a comprehensive regulatory framework for federal elections. ITCA, 570 U.S. at 8. The Elections Clause provides that Congress—not the President—is the check on States’ authority to regulate federal elections, allowing that “the Congress may at any time by Law make or alter” States’ election rules. U.S. Const. art. I, § 4, cl. 1; see also Foster, 522 U.S at 69. Meanwhile, the power to determine voter qualifications is left entirely with the States, subject only to the requirement that each State must adopt the same qualifications for congressional elections as it does for elections to “the most numerous branch” of its own legislature. U.S. Const. art. I, § 2, cl. 1; U.S. Const. amend. XVII. The Constitution vests none of these powers in the President, leaving election regulation solely to the States and to Congress.
October 31, 2025 at 10:15 PM
gabrielmalor.bsky.social
Lawgeeks, Judge Winn (4th Cir.) has an interesting concurring op. suggesting that, just as in Title VII litigation, there should a presumption for asylum purposes that when a man sexually harasses a woman, the harassment is at least in part on account gender.

www.ca4.uscourts.gov/opinions/232...
Thus, we have held that, “[w]hen someone sexually harasses an individual of the opposite gender, a presumption arises that the harassment is ‘because of’ the victim’s gender.” Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 752 (4th Cir. 1996) (abrogated on other grounds by Bostock v. Clayton County, 590 U.S. 644 (2020)). I would adopt that presumption in the asylum context: absent evidence to the contrary, a man who sexually harasses a woman is motivated in part by her gender.
October 31, 2025 at 6:49 PM
gabrielmalor.bsky.social
Lawgeeks, there's an important part in here where the Court rejects the school district's argument that because social media is so pervasive it should be considered on-campus speech.

Held: nope, that would let schools regulate virtually all student speech online wherever made and whatever about.
The District argues that “[s]ocial media has changed the boundaries of the schoolhouse gates.” Appellee Br. at 43. We are cognizant that speech on social media is inherently different than private speech. A post on social media speaks to a much larger audience than a remark to a private or limited audience. It therefore carries both a greater risk of transmission to the school environment— and greater power to disrupt the school environment, including by harming other students. But we cannot accept the contention that in today’s world, a social media post made off-campus is equivalent to speech on campus. That is because Mahanoy explicitly addresses social media and maintained a distinction between on- and off-campus speech, treating the social media posts at issue there as off-campus speech. See Mahanoy, 594 U.S. at 189 (holding that three features of off-campus speech “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway”). For better or worse, social media is a primary method of communication for students today, and allowing schools to
October 30, 2025 at 7:01 PM
gabrielmalor.bsky.social
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.
October 30, 2025 at 6:58 PM
gabrielmalor.bsky.social
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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 provider—confirms that QueerDoc was targeted for what it does (provide genderaffirming care) rather than how it does it (through any unlawful means).2
October 30, 2025 at 2:55 PM
gabrielmalor.bsky.social
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.
October 28, 2025 at 11:50 PM
gabrielmalor.bsky.social
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’ 26 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).
October 28, 2025 at 7:30 PM
gabrielmalor.bsky.social
"Congress sought to expand the programs’ reach, not contract it."
It is evident from the statutes’ purpose, from its requirement to provide a “culturally appropriate” curricula, and its attention to high-risk youth populations, that Congress sought to expand the programs’ reach, not contract it by excluding Case 6:25-cv-01748-AA Document 81 Filed 10/27/25 Page 38 of 77 Page 39 – OPINION AND ORDER certain segments, especially high-risk segments, of a states’ youth population, as HHS seeks to do. HHS does not identify any statutory provision that grants it authority to redefine the scope of what is culturally appropriate or to exclude certain segments of the youth population from the PREP and SRAE programs. The Court concludes that HHS’s exclusion of gender minority youth from the PREP and SRAE programs directly conflicts with Congress’s requirement that PREP and SRAE curricula be “culturally appropriate” and target high-risk youth.
October 28, 2025 at 12:00 AM
gabrielmalor.bsky.social
"A curricula that denies the existence of transgender and gender diverse people is not medically accurate and complete."
Second, the Court also does not agree that the concept of gender identity “fall[s] outside the core medical and biological content that is central to sexual-risk education.” Def. Resp. at 20. A curricula that denies the existence of transgender and gender diverse people is not medically accurate and complete. The Supreme Court itself acknowledged that “1.6 million Americans over the age of 13 identify as transgender, meaning that their gender identity does not align with their biological sex.” United States v. Skrmetti, 145 S. Ct. 1816, 1824 (2025). Further, the concept of gender identity is firmly established in the medical literature. Dr. Millington attested that “[e]veryone has a gender identity.”6
October 27, 2025 at 11:57 PM
gabrielmalor.bsky.social
Fed. judge grants PI to stop Trump from blocking fedreal sex ed grants passed by Congress.

OF NOTE: Congress required that sex ed programs be "medically accurate and complete," which means Trump can't delete gender identity from curricula by citing "tradition."

s3.documentcloud.org/documents/26...
Defendants contend that, despite the express statutory language that programs be “medically accurate and complete” and “culturally appropriate,” that Congress intended to “anchor the programs in traditional understandings[.]” Def. Resp. at 20. Defendants do not argue that the concept of gender identity is not “medically accurate and complete” or that it is not “culturally appropriate,” only that to include gender identity references in PREP and SRAE program materials is not consistent with Congress’s objective to anchor programs in “traditional understandings.” Defendants’ position is the opposite of what Congress’s expressly stated intention . “[Courts] must reject administrative constructions of a statute . . . that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement.”
October 27, 2025 at 11:55 PM