Picard v. Magliano

Court: US Court of Appeals for the Second Circuit

Docket: 20-3161

Opinion Date: July 27, 2022

Judge: GERARD E. LYNCH

Areas of Law: Constitutional Law

Defendant, represented by New York’s Attorney General, appealed from a district court judgment holding that New York Penal Law Section 215.50(7), which prohibits certain speech within a 200 feet radius of a courthouse, violates the First Amendment of the United States Constitution and permanently enjoining the enforcement of the statute in all circumstances. The State of New York argued that Plaintiff lacked standing to challenge the statute and that the district court erred in granting an injunction that enjoined enforcement of the statute in all circumstances, beyond its application to Plaintiff’s own conduct in this case.
 
The Second Circuit concluded that while Plaintiff has standing to challenge the statute, the district court erred in granting such a broad injunction. The court, therefore, vacated the judgment of the district court and remanded with instructions to enjoin the application of NYPL Section 215.50(7) only in the circumstances presented by Plaintiff’s conduct in this case. The court explained that an injunction prohibiting the application of NYPL Section 215.50(7) in the circumstances presented by Plaintiff’s case – in which a single individual advocated for what he contends are the correct principles of the legal system, unconnected to any specific trial and effected through non-intrusive and non-disruptive leafletting rather than more aggressive, disruptive, or targeted forms of communication – would suffice to vindicate Plaintiff’s First Amendment right to advocate his point of view regarding jury nullification and to engage in the conduct in which he has engaged in the past and intends to continue in the future.

Gary Wall v. E. Rasnick

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-6553

Opinion Date: July 25, 2022

Judge: James Andrew Wynn, Jr.

Areas of Law: Civil Rights, Constitutional Law

On appeal, prisoner Plaintiff raised constitutional and state-law claims against numerous prison officials arising from a physical altercation at Red Onion State Prison in Virginia. As part of his evidentiary showing, Plaintiff repeatedly sought the production of videos recording the encounter. When he learned that some of the videos were not preserved, Plaintiff moved for spoliation sanctions.
 
After an evidentiary hearing, the magistrate judge denied Plaintiff’s spoliation motion and recommended entering judgment against him on all claims and counterclaims. The district court substantially adopted the magistrate judge’s recommendations without explicitly addressing Plaintiff’s objections to the order denying spoliation sanctions.

The Fourth Circuit vacated the order of the district court entering judgment to Defendants and remand for a hearing on Plaintiff’s objections to the denial of spoliation sanctions, and for any other proceedings, the district court deems appropriate. The court held that the district court abused its discretion by implicitly overruling Plaintiff’s spoliation objections when several critical issues were left unresolved by the magistrate judge.
 
Specifically, the court explained that the magistrate judge erred in requiring Plaintiff to produce evidence that “the defendants purposefully disposed of any video recordings in an effort to prevent their use at trial.” Under Rule 37(e), when “electronically stored information that should have been preserved . . . is lost because a party failed to take reasonable steps to preserve it,” then “upon finding prejudice to another party from loss of the information,” the court “may order measures no greater than necessary to cure the prejudice.” Accordingly, only a finding of prejudice is required for such not-greater-than-necessary sanctions.

Quincy Allen v. Michael Stephan

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-6

Opinion Date: July 26, 2022

Judge: GREGORY

Areas of Law: Constitutional Law, Criminal Law

Petitioner was convicted of two capital murders and sentenced to death in a South Carolina state court. During the penalty phase, the government and defense experts agreed that Petitioner suffered persistent childhood abuse; they also agreed that he had at least one mental illness—rumination disorder—and disagreed as to another—schizophrenia. Yet, the sentencing judge concluded that Petitioner was not conclusively diagnosed as mentally ill and found no “conclusive proof of mitigating circumstances.” Petitioner filed the instant federal petition pursuant to 28 U.S.C. Section 2254, raising several claims. The district court dismissed his petition, and Petitioner appealed.
 
The Fourth Circuit reversed the judgment of the district court and remanded with instructions that the district court issue a writ of habeas corpus unless the State of South Carolina grants Petitioner a new sentencing hearing within a reasonable time. The court concluded that the state court’s conclusion that the sentencing judge “considered Petitioner’s mitigation evidence as presented” was an unreasonable determination of the facts and its conclusion that the sentencing judge gave “proper” consideration was contrary to clearly established federal law. The court wrote it has grave doubt that the state court’s errors did not have a substantial and injurious effect.

US v. David Orozco

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-4473

Opinion Date: July 25, 2022

Judge: RICHARDSON

Areas of Law: Constitutional Law, Criminal Law

Defendant was paid to drive a car with over $100,000 in drug-tainted cash hidden in a secret dashboard compartment. When police pulled him over, he acted suspiciously: He quickly shut down the GPS application running on his smartphone and struggled to answer where he was going with the money. His odd behavior continued when he arrived at the station: When police found five SD cards wrapped in a $100 bill in Defendant’s shoe, Defendant tried to destroy them by eating them. When police got a warrant to search the phone and SD cards, things went from bad to worse for Defendant—both the phone and the chips contained graphic and heinous child pornography. Defendant contends that the search warrant for the phone and SD cards should not have been issued.
 
The Fourth Circuit affirmed Defendant’s conviction, holding that the district court’s denial of Defendant’s motion to suppress was proper. The court explained that this case presents a model example of a proper investigation under the Fourth Amendment. The officers submitted a comprehensive affidavit with detailed facts showing drug trafficking. The magistrate combined those facts with commonsense inferences and determined that probable cause existed. And when the officers discovered evidence of other crimes, they immediately went back and obtained additional warrants to search and seize those files.

US v. Derrick Daniels, Jr.

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-4812

Opinion Date: July 25, 2022

Judge: RICHARDSON

Areas of Law: Constitutional Law, Criminal Law

Defendant challenged the admissibility of a handgun found in a rental car he had been driving that was parked outside of his hotel. Finding that Defendant had abandoned any legitimate expectation of privacy in the Charger, that Enterprise had given valid third-party consent to the search, and that the Government would have inevitably discovered the gun in the Charger, the district court denied Defendant’s motion to suppress.
 
The Fourth Circuit affirmed the district court’s judgment. The court explained that in suppression hearings, criminal defendants have the burden of putting forward evidence to support all elements of their reasonable expectation of privacy. Here, Defendant did not introduce any evidence to support his lawful possession of the Charger.

Tyson v. County of Sabine

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-40590

Opinion Date: July 28, 2022

Judge: Edith Brown Clement

Areas of Law: Civil Rights, Constitutional Law

This appeal arises from an alleged sexual assault committed by a law enforcement officer while he was conducting a welfare check on Plaintiff at her home. The district court found that the officer was entitled to qualified immunity. The district court found that Plaintiff’s Fourth Amendment claim of excessive force failed because Plaintiff had not been seized, and that the Eighth Amendment claim failed because she was not a prisoner. Plaintiff appealed the dismissal of her claims under the Fourth Amendment and Fourteenth Amendment, as well as her claims against the County and Sheriff.
 
The Fifth Circuit affirmed the district court with respect to the dismissal of Plaintiff’s Fourth Amendment claim, reversed the order of the district court with respect to the dismissal of Plaintiff’s Fourteenth claim, and remanded. The court held that the Deputy’s alleged sexual abuse violated Plaintiff’s clearly established right to bodily integrity. Thus, the Deputy is not entitled to qualified immunity. The court explained it need not reach the claims against the County and the Sheriff. The court remanded those issues to the district court to address in the first instance.

Jarvela v. Houk

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-2820

Opinion Date: July 22, 2022

Judge: Raymond M. Kethledge

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Jarvela drank several rum-and-cokes, then drove his Silverado to a Shell station to buy cigarettes. Afterward, the store clerk called the police to report that “a drunk guy" had just left driving a black Silverado. In a nearby police cruiser, Officer Trevino spotted the Silverado, speeding and drifting over the road’s center line. Trevino activated his lights and pursued the truck. Jarvela led Trevino on an extended chase. After about five minutes, the road turned to gravel and the Silverado struck a tree. Jarvela fled on foot into a darkened wooded area. Trevino called for backup. Deputy Houk and his service dog, Argo, arrived and began searching with Argo leashed. After about five minutes, Argo found clothing. Moments later Jarvela was visible in the weeds, wrestling with Argo, who was clinging to Jarvela’s arm. Jarvela tried to injure Argo. Houk delivered seven blows to Jarvela's back, yelling “Let go of the fucking dog.” Trevino shot his taser at Jarvela, who rolled onto his back. Trevino again deployed his taser.

In Jarvela’s excessive force suit, 42 U.S.C. 1983, the Sixth Circuit held that Houk had no constitutional duty to shout out a warning to Jarvela before searching for him with the dog and was entitled to summary judgment.

United States v. Sharp

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-3828

Opinion Date: July 22, 2022

Judge: Larsen

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

After a decade in state prison for gross sexual imposition and kidnapping, Sharp was released on parole with conditions that required him to refrain from unsupervised contact with minors; obtain his parole officer’s approval of any adult who might supervise his contact with minors; and submit to “warrantless search[es]” of his person and property “at any time.” Under Ohio law, a parole officer may search a parolee without a warrant if he has “reasonable grounds” to suspect that the parolee has violated the law or a parole condition. During his parole, a woman told police that, 10 days earlier, Sharp had sexually assaulted her at his house while her children slept nearby and that Sharp had been assisting her children with transportation. Sharp’s parole officer concluded that Sharp had violated his parole. Nearly three weeks after the alleged assault, officers arrested Sharp, transported Sharp to his home, then conducted a warrantless search and found a loaded firearm.

Sharp was charged with possessing a firearm as a felon. The Sixth Circuit affirmed the denial of a motion to suppress the gun. Under the special-needs framework, a parolee search is reasonable under the totality of the circumstances if it was supported by reasonable suspicion. Bailey reasonably suspected that he would find evidence of a parole violation at Sharp’s home. A parolee’s search conditions factor into the reasonableness balance.

Wineries of the Old Mission Peninsula Ass'n v. Township of Peninsula, Michigan

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-1744

Opinion Date: July 27, 2022

Judge: Karen Nelson Moore

Areas of Law: Agriculture Law, Constitutional Law, Real Estate & Property Law

The Sixth Circuit reversed the judgment of the district court denying the motion filed by Protect the Peninsula, Inc. to intervene as a matter of right in an action brought by a group of wineries and an association representing their interests (collectively, the Wineries) against a Michigan municipality over several zoning ordinances that regulate vineyards, holding that the district court erred.

Protect the Peninsula, Inc., a local advocacy group, moved to intervene in this action brought against Peninsula Township challenging the zoning ordinances regulating the vineyards' activities as unconstitutional and in violation of state laws. Protect the Peninsula moved to intervene under Fed. R. Civ. P. 24(a)(2), but the district court denied the motion. The Sixth Circuit reversed, holding that Protect the Peninsula satisfied each of Rule 24(a)(2)'s requirements.

Fosnight v. Jones

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-1033

Opinion Date: July 27, 2022

Judge: Diane S. Sykes

Areas of Law: Civil Rights, Constitutional Law

The Seventh Circuit affirmed the judgment of the district court dismissing for failure to state a claim this lawsuit raising claims under the Fourth Amendment and the Due Process Clause of the Fifth Amendment, holding that the judge properly dismissed the case in its entirety and with prejudice.

In 2017, agents with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) executed a search warrant at an Indiana facility owned by Paraklese Technologies, LLC, which makes and sells firearm accessories, and seized approximately $21,000 worth of inventory. In 2017, Paraklese and its owner sued ATF agents seeking damages from the search and seizure. The district court granted Defendants' motion to dismiss for failure to state a claim. The Seventh Circuit affirmed, holding that the district court did not err in dismissing the case.

Jerger v. Blaize

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-3011

Opinion Date: July 26, 2022

Judge: Scudder

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Health Law

In this case arising out of a child welfare investigation, the Seventh Circuit vacated the judgment of the district court entering summary judgment in favor of Indiana Department of Child Services (DCS) case workers on the grounds of qualified immunity, holding that the facts were too disputed to allow the Court to reach any legal conclusions with confidence.

When DCS learned from a social worker that Plaintiffs may not have been providing their infant daughter prescribed medication to control epileptic seizures DCS case workers took the child to the hospital for a blood draw to clarify whether that was so. The results showed that the infant had started the prescription a few days earlier. Plaintiffs filed a complaint under 42 U.S.C. 1983, alleging that the investigation and demand for a blood test violated their constitutional rights as parents under the Fourteenth Amendment and their daughter's rights under the Fourth Amendment. The district court entered summary judgment for the DCS defendants on the grounds of qualified immunity. The Seventh Circuit vacated the summary judgment and remanded the case, holding that the facts were so contested as to limit what the Court could do on appeal.

Smith v. City of Janesville

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-3282

Opinion Date: July 22, 2022

Judge: Joel Martin Flaum

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law

The Janesville Wisconsin Police Department created a “no‐preference tow list” to simplify its response to traffic accidents in which a vehicle owner expressed no preference as to which tow company towed their car. Smith is Black and owns Flying A.J.’s Towing Company, which operates in the area. Flying A.J.’s was added to the list. Less than two months later, the Police Department removed the company from its tow list, citing the company’s unresponsiveness and complaints related to one particular tow job.

Smith and Flying A.J.’s claim that their removal was due to Smith’s race and in retaliation because, in 2010, Smith had successfully sued the town of Beloit after experiencing racial discrimination by the police department. The Seventh Circuit affirmed the dismissal of those claims under 42 U.S.C. 1983 and 1981. Smith had failed to put forth sufficient evidence to allow a jury to determine that Smith’s race or former complaints caused the decision to remove Flying A.J.’s from the tow list. Smith claimed that a tow company owned by a white man had received a lesser penalty but the situations leading to the two complaints are too dissimilar for any reasonable jury to conclude that the factor leading to any perceived disparate treatment was race.

Alicia Street v. Gerald Leyshock

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-1524

Opinion Date: July 27, 2022

Judge: COLLOTON

Areas of Law: Civil Rights, Constitutional Law

This is the third appeal to the Eighth Circuit involving litigation arising from police response to protest activity in St. Louis on September 17, 2017. In this case, as in the others, Plaintiffs allege that St. Louis police officers boxed civilians into a downtown intersection in a maneuver characterized as a “kettle.” Some persons caught in this kettle allegedly were beaten, pepper sprayed, handcuffed with zip-ties, and arrested. The Eighth Circuit has issued two decisions in cases brought by different plaintiffs against the same six police officers.
 
The Eighth Circuit reversed the district court’s order denying the officers’ motion to dismiss with respect to Plaintiffs’ claims alleging use of excessive force and conspiracy to deprive civil rights. The court affirmed the order with respect to the claims alleging unlawful arrest.
 
The court explained that the case-at-hand arises in the same procedural posture and includes the same relevant factual allegations as Baude v. Leyshock, 23 F.4th 1065 (8th Cir. 2022), and Baude precludes a grant of qualified immunity on the arrest claims in this case as well. Thus, the court concluded that the allegations, in this case, are insufficient to establish a plausible claim that the defendant officers violated any Plaintiffs clearly established right against the use of excessive force.

Linda Hoekman v. Education Minnesota

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-1366

Opinion Date: July 25, 2022

Judge: COLLOTON

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Labor & Employment Law

Appellants are four Minnesota state employees who sued unions that represented their local bargaining units. The employees sought monetary relief based on the amount of so-called “fair-share” fees that were deducted from employee paychecks for the benefit of the unions. The district court granted summary judgment in favor of the unions.  On appeal, the employees argue that the district court erred by granting summary judgment in favor of the unions on each of the claims for retrospective relief.
 
The Eighth Circuit affirmed, holding that the unions’ reliance on Section 179A.06 was objectively reasonable. It is an open question whether subjective intent is relevant to the defense, but the employees did not present a submissible case that the unions collected fair-share fees in subjective bad faith in any event. Therefore, the district court correctly granted summary judgment for the unions on these claims.
 
The unions prevailed on motions for summary judgment. The rules of civil procedure provide those costs “should be allowed to the prevailing party,” unless the court or a federal statute or rule directs otherwise. Further, the employees point to no authority that requires a district court to reduce an award of costs because a defendant opted to forgo a motion to dismiss and to file a dispositive motion only after developing a factual record. A defendant may choose how best to defend a lawsuit, and if the case is resolved in favor of the defense on a motion for summary judgment, then the defendant is presumptively entitled to costs.

Rodney Brown v. Matthew T. Boettigheimer

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2460

Opinion Date: July 27, 2022

Judge: SHEPHERD

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law

Plaintiff was removed from a political rally and arrested for violating a St. Louis, Missouri ordinance that prohibits disturbing the peace. After Plaintiff was acquitted of that charge in state court, he brought claims against, as pertinent to this appeal, three St. Louis Metropolitan Police Department officers. The district court granted summary judgment in favor of the officers, and Plaintiff appealed.
 
The Eighth Circuit affirmed holding that it was objectively reasonable for the officers to mistakenly believe, under the totality of the circumstances that Plaintiff was engaged in acts or conduct inciting violence or intended to provoke others to violence. The court explained that two of the officers had arguable probable cause to arrest and then initiate prosecution against Plaintiff meaning that it was not clearly established that doing so would violate Plaintiff’s right to be free from unlawful seizure, malicious prosecution, or First Amendment retaliation. Thus, the court affirmed the district court’s grant of qualified immunity to those officers. Further, the court wrote that the district court properly granted qualified immunity to the remaining officer because it was not clearly established that initiating prosecution against Plaintiff would violate his Fourth Amendment right to be free from malicious prosecution or his corresponding right under Missouri law.

CHRISTOPHER GARNIER V. MICHELLE O'CONNOR-RATCLIFF

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-55118

Opinion Date: July 27, 2022

Judge: Berzon

Areas of Law: Civil Rights, Constitutional Law

Two members of the Poway Unified School District (“PUSD” or the “District”) Board of Trustees, (together, “the Trustees”), created public Facebook and Twitter pages to promote their campaigns for office. Plaintiffs, two parents of children in the School District, frequently left comments critical of the Trustees and the Board on the Trustees’ pages, The Trustees eventually blocked Plaintiffs entirely from their social media pages. Plaintiffs sued, asserting that the Trustees violated their First Amendment rights by ejecting them from the social media pages. The district court agreed with Plaintiffs that their First Amendment rights had been violated. Both parties appealed.
 
The Ninth Circuit rejected the Trustees’ assertion that the dispute was moot because after Plaintiffs filed their lawsuit, the Trustees began using a word filter on Facebook to prevent any new comments from being posted. The court held that: (1) using a word filter on Facebook would not affect Plaintiffs’ claims involving being blocked from Twitter; (2) the word filter limit did not change Facebook’s non-verbal “reaction” feature; and (3) the Trustees failed to carry their burden of showing they would not, in the future, remove the word filters from their Facebook pages and again open those pages up for verbal comments from the public.
 
The court further held that the district court correctly concluded that at the time the Trustees blocked Plaintiffs, it was not clearly established that Plaintiffs had a First Amendment right to post comments on a public official’s Facebook or Twitter page. The district court, therefore, did not err by granting qualified immunity to the Trustees as to Plaintiffs’ damages claim.

HITOSHI YOSHIKAWA V. TROY SEGUIRANT

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-15970

Opinion Date: July 25, 2022

Judge: Jay S. Bybee

Areas of Law: Civil Rights, Constitutional Law

Defendant determined that Plaintiff’s renovation of property violated local ordinances. Although he conceded the ordinance violation, Yoshikawa alleged that the enforcement action against him was motivated by racial animus, in violation of Section 1981. The Ninth Circuit affirmed the district court’s order denying the building inspector Defendant’s motion to dismiss, on the basis of qualified immunity.
 
The court held that, in addressing a qualified immunity claim in an action against an officer for an alleged violation of a constitutional right, the court first asks whether, taken in the light most favorable to the party asserting the injury, the facts alleged show that the officer’s conduct violated a constitutional right. If not, the complaint must be dismissed for failure to state a claim. Second, the court asks whether the constitutional or statutory right was clearly established, such that the officer had fair notice that his conduct was unlawful.
 
The court held that Plaintiff stated a Section 1981 damages claim against Defendant a state actor. Under Comcast Corp. v. Nat’l Ass’n Afr. Am.-Owned Media, 140 S. Ct. 1009 (2020), an allegation of discrimination on the basis of race is a but-for element of a claim brought under Section 1981. The court further held that Defendant’s alleged actions violated clearly established law because he was accused of intentional racial discrimination. The court found irrelevant to qualified immunity, at the motion to dismiss stage, the issue of the applicability of the McDonnell Douglas test, an evidentiary standard, for analyzing Section 1981 claims in non-employment cases.

USA V. HELAMAN HANSEN

Court: US Court of Appeals for the Ninth Circuit

Docket: 17-10548

Opinion Date: July 25, 2022

Judge: M. Margaret McKeown

Areas of Law: Constitutional Law, Criminal Law

The Ninth Circuit denied on behalf of the court a petition for rehearing en banc in a case in which the court’s opinion, which vacated convictions on two counts of encouraging or inducing an alien to reside in the United States for private financial gain in violation of 8 U.S.C. Section 1324(a)(1)(A)(iv), held that subsection (iv) is overbroad and unconstitutional because its narrow legitimate sweep pales in comparison to the amount of First Amendment protected expression it encompasses.
 
Judge Gould concurred in the order denying rehearing en banc. He wrote that Judge Bumatay’s dissent seeks to rewrite subsection (iv) by conducting a so-called textual analysis that fails to analyze the text of subsection (iv) itself; analyzes additional words not in that section, such as “aiding,” “abetting,” and “solicitation,” to support the conclusion it advocates; misreads the opinion, the record, Section 1324 itself, and precedent; conjures up parades of horribles belied by its own citations; introduces arguments the Government’s Petition for Rehearing did not make; and asks this court improperly to disregard Supreme Court precedent regarding the applicability of the facial overbreadth doctrine.
 
Dissenting from the denial of rehearing en banc, Judge Collins concluded that (1) under the canon of constitutional avoidance, the court can and should interpret the statute as being limited to soliciting and facilitating the unlawful entry of, or the unlawful taking up of residence by, specific aliens; and (2) so construed, the statute is not facially unconstitutional.

USA V. JONATHAN OLIVER

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-30137

Opinion Date: July 22, 2022

Judge: Bumatay

Areas of Law: Constitutional Law, Criminal Law

The district court revoked Defendant’s supervised release for violating 18 U.S.C. Section 1001(a) by submitting a monthly supervision report with false statements to his probation officer. Section 1001(a) bars lying “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” Defendant argued that because the report was eventually forwarded to a judge, he’s entitled to the exemption in 18 U.S.C. Section 1001(b) for statements “submitted to a judge or magistrate” in a judicial proceeding.
 
The Ninth Circuit affirmed the district court’s judgment revoking supervised release based on the Defendant committing a new crime, and the sentence imposed upon revocation. The court wrote that the judicial proceeding exception only protects statements made “by [the] party . . . to the judge or magistrate”—not statements made to others in the judicial branch. The court emphasized that taking an expansive view of “submission” would threaten to swallow the rule, and would undermine the will of Congress, which broadly proscribed false statements made in “any matter” of the “judicial branch.”
 
Relying on United States v. Haymond, 139 S. Ct. 2369 (2019), Defendant argued that the district court violated his Fifth and Sixth Amendment rights when it decided by the preponderance of the evidence that he violated Section 1001. The court wrote that because a sentence for a supervised release violation is generally part of the penalty for the original offense, it is not a new and additional punishment requiring jury findings beyond a reasonable doubt.

Frey v. Town of Jackson, WY, et al.

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-8000

Opinion Date: July 26, 2022

Judge: Carson

Areas of Law: Aviation, Civil Procedure, Civil Rights, Constitutional Law, Transportation Law

As Plaintiff William Frey proceeded through the Transportation Security Administration (“TSA”) checkpoint at Jackson Hole Airport in Teton County, Wyoming, the body scanner alerted TSA screeners to a potentially suspicious area on Plaintiff’s person. When the security screeners informed Plaintiff that they would have to conduct a pat down, Plaintiff became agitated and repeatedly refused to cooperate. So the security screeners summoned a police officer, Defendant Nathan Karnes, who arrested Plaintiff. After being transported to the Teton County Jail for booking, Plaintiff continued his noncooperation, refusing to participate in the booking process and demanding that jail officials allow him to have an attorney present. Jail officials detained Plaintiff for about three hours before releasing him. Plaintiff sued under 42 U.S.C. § 1983 and state law, alleging many violations of his rights. The district court dismissed Plaintiff’s federal claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, denied leave to file a second amended complaint, declined to exercise supplemental jurisdiction over the remaining state-law claims, awarded attorney’s fees to the Municipal Defendants, and sanctioned Plaintiff’s attorneys. Plaintiff appealed, arguing that some of his claims should have survived dismissal, that the district court should have permitted him to add some of his new proposed claims in a second amended complaint, and that the district court should not have awarded any attorney’s fees. Finding no reversible error, the Tenth Circuit affirmed the district court.

United States v. Cifuentes-Lopez

Court: US Court of Appeals for the Tenth Circuit

Docket: 21-6053

Opinion Date: July 26, 2022

Judge: Timothy M. Tymkovich

Areas of Law: Constitutional Law, Criminal Law

Rolando Cifuentes-Lopez admitted to having commercial sex with two minors and was sentenced to 24 years and 4 months in prison. He claimed that the district court erred in applying certain sentencing enhancements pursuant to the United States Sentencing Guidelines; one enhancement for a pattern of sexual conduct with a minor, and the other for his conviction on multiple counts. He argued that: (1) the application of a pattern of activity enhancement under U.S.S.G § 4B1.5(b)(1) should not apply to him because he engaged in only one prohibited sexual act with each minor; and (2) the application of the pattern of activity enhancement along with a multiple count enhancement, U.S.S.G. § 3D1.4, was impermissible double counting. The Tenth Circuit found the district court correctly applied the enhancements, and thus affirmed the district court's judgment.

United States v. McCrary

Court: US Court of Appeals for the Tenth Circuit

Docket: 21-6047

Opinion Date: July 26, 2022

Judge: David M. Ebel

Areas of Law: Constitutional Law, Criminal Law

Defendant-Appellant Robert McCrary challenged his forty-eight-month prison sentence for possessing fentanyl with the intent to distribute it. Although within the twenty-year statutory maximum for that offense, McCrary’s forty-eight-month sentence was four times higher than the high end of the advisory guideline range. The district court varied upward after concluding McCrary’s post-offense rehabilitation did not outweigh the fact that the fentanyl McCrary distributed resulted in another’s death. On appeal, McCrary contended his sentence was both procedurally and substantively unreasonable. After review, the Tenth Circuit concluded the appeal waiver to which McCrary agreed precluded the Court's review of his procedural arguments and that his sentence was substantively reasonable.

Marie Butler v. Bob Gualtieri

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-12136

Opinion Date: July 25, 2022

Judge: Marcus

Areas of Law: Civil Rights, Constitutional Law

While Plaintiff was intoxicated and handcuffed, former deputy sheriff (“Deputy”) pushed Plaintiff onto a concrete floor, breaking Plaintiff’s left arm. In response to a complaint from Plaintiff’s husband, the Pinellas County Sheriff’s Office (“PCSO”) investigated the incident and terminated the Deputy’s employment. A few months later, Plaintiff sued PCSO Sheriff (“Sheriff”), among others, in the Middle District of Florida, alleging several state and federal constitutional claims.  The district court denied the Sheriff summary judgment on this claim.
 
The parties now agree that the Deputy behaved inappropriately, but disagree over whether the Deputy’s behavior was so egregious that the Sheriff could not be held liable for it. Put differently, this interlocutory appeal centers entirely on whether the Sheriff is, as a matter of law, entitled to sovereign immunity with respect to Plaintiff’s state law battery claim.
 
The Eleventh Circuit affirmed, concluding that there is a genuine dispute of material fact as to whether Florida’s sovereign immunity statute protects the Sheriff. The court explained that serious factual disputes have often prevented Florida’s courts from applying sovereign immunity at the summary judgment stage.  Measuring the facts as they have been adduced in this case against Florida’s legal standards, the court agreed there are material factual disputes about the precise actions Plaintiff and the Deputy took, the Deputy’s state of mind, and the inferences that might reasonably be drawn from them. Moreover, reasonable factfinders could disagree over whether the Deputy’s conduct was wanton and willful, malicious, or exhibitive of bad faith.

Alaska v. Graham

Court: Alaska Supreme Court

Docket: S-17411

Opinion Date: July 22, 2022

Judge: Peter J. Maassen

Areas of Law: Constitutional Law, Criminal Law

A drunk driver lost control of his truck on a wet roadway and struck and killed two teenage girls. The driver pleaded guilty to two counts of second-degree murder with a sentencing range of 13 to 20 years for each count. At the sentencing hearing, members of both victims’ families and two local law enforcement officers spoke, and the sentencing court viewed tribute videos for the two young victims. The court imposed a term of 20 years in prison with 4 years suspended on each count, for a composite sentence of 32 years to serve, noting that it was the highest sentence imposed in Alaska for an unintentional vehicular homicide. The court of appeals vacated the sentence based on several perceived errors in the sentencing court’s calculation of the appropriate sentence; it also identified evidentiary errors which it believed contributed to the emotionally charged sentencing hearing and improperly influenced the judge’s decision. The court of appeals directed that a different judge preside over resentencing. The State appealed. The Alaska Supreme Court concluded the superior court properly began its sentencing analysis in the benchmark range for second-degree murder and appropriately considered an aggravator. The Court could not conclude, as the court of appeals did, the superior court gave too much weight to the sentencing goals of general deterrence and community condemnation. The Supreme Court found it was an abuse of discretion to allow the testimony of two police officers as victim impact evidence and to admit victim tribute videos without first reviewing them for relevance and unfair prejudice. "We cannot say that the unusually severe sentence was untainted by these errors, but we do not believe that the superior court’s admission of the challenged evidence requires recusal on remand." The sentence was vacated and the case remanded for re-sentencing by the same judge.

Ray v. Alaska

Court: Alaska Supreme Court

Docket: S-17645

Opinion Date: July 22, 2022

Judge: Borghesan

Areas of Law: Constitutional Law, Criminal Law

In Henry v. Alaska, the court of appeals held that a defendant who entered a plea agreement providing for a specific period of probation has the right, when being sentenced for a subsequent probation violation, to reject further probation and to serve a sentence of active imprisonment only. The court of appeals certified a question to the Alaska Supreme Court on whether the legislature intended to abrogate that right when it enacted AS 12.55.090(f). Jason Ray was arrested in October 2013 for stealing a pair of boots from a grocery store in Kodiak. Because Ray had two prior theft convictions, the State charged him with theft in the second degree. Ray pleaded guilty as part of a plea agreement pursuant to Alaska Criminal Rule 11. The agreement called for Ray to receive a sentence of 24 months’ imprisonment with 20 months suspended, followed by three years of supervised probation. Ray served his four months in prison and was then released on supervised probation. Ray admitted that he had violated two conditions, and the superior court found that he had violated two others. At the disposition hearing, Ray announced that he wanted to reject further probation. However, in addition to sentencing him to serve 16 months, the superior court placed Ray on unsupervised probation for five years. The only condition of this unsupervised probation was that Ray obey the law. The Alaska Supreme Court concluded did intend to abrogate Henry: although AS 12.55.090(f) did not expressly mention a defendant’s right to reject probation, its plain text precludes a judge from reducing or terminating a previously-agreed-upon period of probation unless both the prosecution and the defendant agree, and the legislative history does not persuade the Court that the legislature intended something other than the plain meaning of the language it used.

California v. McCune

Court: California Courts of Appeal

Docket: A163579(First Appellate District)

Opinion Date: July 25, 2022

Judge: Burns

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Scotlane McCune appealed an order awarding victim restitution. McCune crashed his cousin’s car into a tree, totaling the car’s front end and injuring his passenger. He pled no contest to felony hit and run involving injury, and the court dismissed a charge of misdemeanor driving without a license. As part of his plea, McCune agreed to pay restitution to the victim (the passenger). In June 2018, the court suspended imposition of sentence and placed McCune on five years’ probation. Two and one-half years later, the probation department filed and served notice that the victim sought $30,166.23 to recoup medical expenses related to his injuries. Effective the following day, January 1, 2021, the California Legislature enacted Assembly Bill No. 1950 (AB 1950) ((2019- 2020 Reg. Sess.), Stats. 2020, ch. 328, § 2). With exceptions not pertinent here, the new law amended Penal Code section 1203.1 (a) to reduce the maximum felony probation term to two years. Accordingly, two weeks later the probation department (with the district attorney’s concurrence) petitioned to terminate McCune’s probation. The petition stated McCune would remain liable for victim restitution. The court granted it the same day. McCune contended the trial lost jurisdiction to order restitution when it terminated his probation early following a change to the Penal Code that shortened his probationary term from five years to two. To this, the Court of Appeal disagreed: the court retained jurisdiction to determine and award victim restitution under Penal Code sections 1202.4 and 1202.461 irrespective of McCune’s probation status.

California v. Saibu

Court: California Courts of Appeal

Docket: D078391(Fourth Appellate District)

Opinion Date: July 26, 2022

Judge: Richard D. Huffman

Areas of Law: Constitutional Law, Criminal Law

In 2008, a jury convicted Sadiq Saibu and Antonio Valentino for their roles in committing a robbery of a video store, two attempted robberies of a liquor store, and a murder and attempted murder in the same liquor store during one of the attempted robberies. In 2019, Saibu filed a petition for resentencing under Penal Code section 1172.63 as to his murder conviction, contending he was not a major participant in the underlying felony murder and did not act in reckless indifference to human life. The superior court granted the requested relief. Further, he argued the trial court prejudicially erred in failing to instruct the jury with CALCRIM No. 703 with respect to the felony murder special circumstances allegation. While this case was pending, the California Legislature enacted and the Governor signed into law Senate Bill No. 775 (Senate Bill 775) (Stats. 2021, ch. 551). Senate Bill 775 amended section 1170.95 to expand eligibility for resentencing to persons convicted of attempted murder. The State conceded that Saibu’s conviction for attempted murder was eligible for resentencing under Senate Bill 775. However, it pointed out the parties did not address that issue, and argued it should be given the opportunity to present additional evidence. Saibu argued that the Court of Appeal should find he was entitled to relief based on the superior’s court’s finding that he did not act with reckless indifference to human life. In the published portion of its opinion, the Court of Appeal agreed with Saibu on the jury instruction contention and reversed the jury’s true finding on the robbery-murder special circumstance. Regarding the superior court’s determination that Saibu was entitled to relief under section 1172.6 as to his murder conviction, the appellate court determined the State could not show that the court committed reversible legal error. As such, the order was affirmed. The Court remanded this case for the superior court to issue a show cause order and to hold a hearing as to whether Saibu was entitled to relief under section 1172.6 as to his attempted murder conviction.

California v. Super. Ct. (Ortiz)

Court: California Courts of Appeal

Docket: E077594(Fourth Appellate District)

Opinion Date: July 28, 2022

Judge: Fields

Areas of Law: Constitutional Law, Criminal Law

A superior court granted diversion to real party in interest, Jessica Ortiz, on misdemeanor DUI charges pursuant to Penal Code section 1001.95. In prior writ proceedings, the appellate division of the superior court upheld the diversion order for Ortiz and two other defendants who had also been granted diversion on misdemeanor DUI charges. The State petitioned the Court of Appeal for mandamus relief, to vacate the diversion order for Ortiz. They claimed the diversion order was unauthorized because Penal Code section 1001.95 did not impliedly and partially repeal Vehicle Code section 23640 to the extent that the older statute prohibits diversion for misdemeanor (as opposed to felony) DUI charges. Thus, they argued, Vehicle Code section 23640 rendered misdemeanor DUI charges categorically ineligible for diversion under Penal Code section 1001.95. To this, a majority of the Court of Appeal agreed and granted the State's petition.

In re Jason V.

Court: California Courts of Appeal

Docket: A163366(First Appellate District)

Opinion Date: July 28, 2022

Judge: Mayfield

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

After June 30, 2021, juvenile courts were no longer able to commit juveniles to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). Jason V. was committed to DJJ prior to June 30, 2021, but the trial court erroneously ordered an impermissible maximum term of confinement. In July 2021, the court entered a nunc pro tunc order stating the correct maximum period. Jason contended the commitment order had to be vacated because judicial error could not be corrected by a nunc pro tunc order and, on the date the order was entered, he could not be committed to DJJ. He also contended he was entitled to additional days of credit for time spent in local confinement that the juvenile court failed to award. The Court of Appeal remanded the case for recalculation of the credits Jason was entitled to, but otherwise affirmed the dispositional order.

Legg v. Dept. of Justice

Court: California Courts of Appeal

Docket: C094657(Third Appellate District)

Opinion Date: July 22, 2022

Judge: Elena J. Duarte

Areas of Law: Constitutional Law, Criminal Law

Petitioner Robert Legg pleaded guilty to committing a lewd act upon a 14- or 15-year-old child, a conviction that required him to register as a sex offender for life. A subsequent amendment to Penal Code section 290 created a tiered registry for adult sex offenders, requiring a minimum registration period for some offenses and lifetime registration for others; petitioner’s offense continued to require lifetime registration. Petitioner sought a writ of mandate at the trial court, claiming that his lifetime registration requirement denied him equal protection of the laws. The trial court denied the petition, and he appealed. Finding no reversible error, the Court of Appeal affirmed the trial court.

P. v. Peyton

Court: California Courts of Appeal

Docket: B314992(Second Appellate District)

Opinion Date: July 28, 2022

Judge: Brian M. Hoffstadt

Areas of Law: Constitutional Law, Criminal Law

Under California Welfare and Institutions Code, a person previously designated as a "sexually violent predator" ("SVP") may be unconditionally discharged if they no longer meet the definition under Sec. 6604.9(d). However, to directly petition for unconditional discharge, an SVP must be evaluated by the Director of State Hospitals. The Second Appellate District held that California Sexually Violent Predator Act does not authorize a "sexually violent predator" to directly petition for unconditional discharge without a favorable evaluation from the Director of State Hospitals. Thus, the court affirmed the lower court, finding that the court's denial of Defendants' request for unconditional discharge did not deny them due process.

Croda Inc. v. New Castle County

Court: Delaware Supreme Court

Docket: 349, 2021

Opinion Date: July 22, 2022

Judge: Seitz

Areas of Law: Constitutional Law, Government & Administrative Law, Zoning, Planning & Land Use

Under New Castle County, Delaware's Unified Development Code, heavy industrial uses were permitted as of right on land zoned for heavy industry or HI. On August 27, 2019, New Castle County Council adopted Ordinance 19-046 amending the Code, then stating that property owners with HI-zoned property had to obtain a special use permit from the County before expanding Heavy Industry use of their property. Croda, Inc. filed a complaint in the Court of Chancery to enjoin enforcement of Ordinance 19-046, claiming, among other things, that Ordinance 19-046 was invalid because the Ordinance title did not put Croda and the public on notice of the substance of the zoning amendment in violation of state and county law and federal due process guarantees. The Court of Chancery dismissed Croda’s state law claims as untimely under the state sixty-day statute of repose and rejected its constitutional claims because Croda did not have a vested right in a zoning category. On appeal to the Delaware Supreme Court, Croda claimed the Court of Chancery erred because the alleged lack of proper notice tolled the statute of repose, and it did not have to show a vested right to state a procedural due process claim. The Supreme Court affirmed the Court of Chancery’s judgment: the statute of repose was not subject to tolling. "And while our reasoning is different than that of the Court of Chancery, Croda’s procedural due process claim fails because those protections do not apply to the County’s legislative acts adopting the Ordinance."

Bauserman v. Unemployment Insurance Agency

Court: Michigan Supreme Court

Docket: 160813

Opinion Date: July 26, 2022

Judge: Michael F. Cavanagh

Areas of Law: Constitutional Law, Government & Administrative Law, Labor & Employment Law, Public Benefits

Grant Bauserman, Karl Williams, and Teddy Broe, on behalf of themselves and all others similarly situated, brought a putative class action in the Michigan Court of Claims against the Unemployment Insurance Agency, alleging that the Agency violated their due-process rights, and that the Agency also engaged in unlawful collection practices. Plaintiffs, who were all recipients of unemployment compensation benefits, specifically alleged defendant had used an automated fraud-detection system, the Michigan Integrated Data Automated System (MiDAS), to determine that plaintiffs had received unemployment benefits for which they were not eligible and then garnished plaintiffs’ wages and tax refunds to recover the amount of the alleged overpayments, interest, and penalties that defendant had assessed without providing meaningful notice or an opportunity to be heard. Among other remedies for this constitutional violation, plaintiffs sought monetary damages. Although the Michigan Supreme Court had never specifically held that monetary damages were available to remedy constitutional torts, the Court now held that they were. “Inherent in the judiciary’s power is the ability to recognize remedies, including monetary damages, to compensate those aggrieved by the state, whether pursuant to an official policy or not, for violating the Michigan Constitution unless the Constitution has specifically delegated enforcement of the constitutional right at issue to the Legislature or the Legislature has enacted an adequate remedy for the constitutional violation. Because enforcement of Const 1963, art 1, § 17 has not been delegated to the Legislature and because no other adequate remedy exists to redress the alleged violations of plaintiffs’ rights, we agree that plaintiffs have alleged a cognizable constitutional-tort claim for which they may recover money damages and we agree with the lower courts that defendant was properly denied summary disposition.”

Johnson v. Vanderkooi

Court: Michigan Supreme Court

Docket: 160958

Opinion Date: July 22, 2022

Judge: Bernstein

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

This was the second time these consolidated cases went before the Michigan Supreme Court. Previously, the Court considered whether a decades-long procedure used by the Grand Rapids Police Department (the GRPD) was a policy or a custom attributable to the city of Grand Rapids (the City). At issue here was the constitutionality of the GRPD’s policy of photographing and fingerprinting individuals stopped without probable cause, referred to as the “photograph and print” (P&P) procedure. In considering the fingerprint component of the P&P procedure, the Court held that the P&P procedure was unconstitutional: "Fingerprinting an individual without probable cause, a warrant, or an applicable warrant exception violates an individual’s Fourth Amendment rights."

Michigan v. Beck

Court: Michigan Supreme Court

Docket: 160668

Opinion Date: July 27, 2022

Judge: David F. Viviano

Areas of Law: Constitutional Law, Criminal Law

In 2016, defendant James Beck was charged relating to allegations that he sexually assaulted his minor daughter, TG (first-degree criminal sexual conduct (CSC-I), and three counts of second-degree criminal sexual conduct (CSC-II)). During the jury’s deliberations, one of the jurors notified the trial court that another juror might have done outside research on the case. The trial court polled the jury by written note to find out whether any of the jurors were aware of that research. Two of the jurors responded affirmatively. The trial court rejected the parties’ requests to either replace the jurors or to allow them to remain seated, and determined that the entire jury was tainted and declared a mistrial. In 2017, while awaiting retrial, defendant was accused of sexually assaulting CS, the minor friend of one of his children, and was charged with two counts of CSC-I and one count of CSC-II. The 2016 charges and the 2017 charges were jointly tried in a second trial, and defendant was found guilty of all charges. The issues presented on appeal to the Michigan Supreme Court were: (1) whether the retrial of defendant’s original charges were barred by double jeopardy; (2) if barred, whether vacating those conviction would entitle defendant to any relief with respect to his remaining convictions; and (3) whether the trial court erred in imposing a mandatory sentence of 25 years for defendant’s CSC-I conviction when the information did not state the charge carried this minimum sentence. The Supreme Court found the trial court abused its discretion by declaring a mistrial without an inquiry sufficient to support a finding of manifest necessity, and vacated those convictions. The Court found defendant did not demonstrate he was entitled to any relief regarding the other convictions. Finally, the Court concluded the trial court committed plain error in imposing the mandatory 25-year minimum sentence because it was not charged, and defendant was not entitled to relief because this error did not result in a fundamentally unfair trial.

Michigan v. Lucynski

Court: Michigan Supreme Court

Docket: 162833

Opinion Date: July 26, 2022

Judge: Elizabeth M. Welch

Areas of Law: Constitutional Law, Criminal Law

David Lucynski was charged with operating a vehicle while intoxicated (OWI); driving with a suspended license; and operating a vehicle with an open container of alcohol in the vehicle. The officer in this case claimed that he followed defendant because he believed defendant committed a traffic violation that would have justified the subsequent seizure, questioning, search, and arrest. The district court held there was no traffic violation, that the seizure was unconstitutional, that defendant would not be bound over for operating while intoxicated (OWI), and that the unlawfully obtained evidence had to be suppressed. The prosecution argued that a “reasonable mistake” occurred as to the traffic violation, that suppression of the evidence was not required, and that the bindover decision was incorrect. The Court of Appeals agreed and further held that defendant had not been seized until after he made incriminating statements, and thus the district court erred. After its review, the Michigan Supreme Court held that defendant was seized under the Fourth Amendment when the officer blocked the driveway and defendant’s path of egress with a marked patrol car because, under the totality of the circumstances, a reasonable person would not have felt free to leave or to terminate the interaction. Second, the “impeding traffic” statute at issue, MCL 257.676b(1), is only violated if the normal flow of traffic is actually disrupted. Third, the officer’s mistaken reading of this unambiguous statute was not objectively reasonable, and thus no reasonable mistake of law occurred. Accordingly, the Supreme Court reversed the Court of Appeals and remanded this case to that court to determine whether application of the exclusionary rule was the appropriate remedy for the violation of defendant’s Fourth Amendment rights.

City of Circle Pines v. County of Anoka

Court: Minnesota Supreme Court

Docket: A20-1637

Opinion Date: July 20, 2022

Judge: Moore

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court reversed the judgment of the court of appeals affirming the order of the district court granting summary judgment in favor of the County of Anoka in this case concerning the proper interpretation of Minn. Stat. 103D.311, which governs the appointment of watershed district managers, holding that several of the district court's conclusions were erroneous.

The City of Circle Pines brought this action alleging that the County followed an improper procedure in reappointing Patricia Preiner, a resident of the City of Columbus, to the Rice Creek Watershed District board of managers. The district court granted summary judgment for the County, ruling that section 103D.311 unambiguously allowed the County the discretion to appoint a manager from any city that neglected to submit a list of nominees. The Supreme Court reversed, holding (1) section 103D.311 is ambiguous; (2) the statute requires the aggregate list of city nominees to have three nominees to be valid; and (3) the requirement under the statute that counties appoint managers from city nominees applies unless those nominees cannot fairly represent the various hydrologic areas in the watershed district.

State v. Paige

Court: Minnesota Supreme Court

Docket: A20-1228

Opinion Date: July 20, 2022

Judge: McKeig

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed the decision of the court of appeals affirming Defendant's conviction of threats of violence in violation of Minn. Stat. 609.713, subd. 1, holding that Defendant's constitutional right to a speedy trial was not violated in this case.

At issue was whether trial delays caused by judicial orders issued in response to the COVID-19 global pandemic weighed against the State in the evaluation of whether Defendant's constitutional right to a speedy trial had been violated. The Supreme Court answered the question in the negative and affirmed Defendant's conviction, holding (1) trial delays caused by statewide orders issued in response to the COVID-19 global pandemic statewide orders do not weigh against the State; and (2) the State brought Defendant to trial quickly enough so as not to violate his constitutional right to a speedy trial.

Garcia v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2021-IA-00632-SCT

Opinion Date: July 21, 2022

Judge: Maxwell

Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law

Soon after the Mississippi Supreme Court appointed counsel to represent death-row inmate Alberto Garcia in post-conviction proceedings before it challenging his death sentence, the Attorney General preemptively filed in the trial court a “Motion for Notice of and an Opportunity to Be Heard on Requests for Litigation Expenses.” Relying on Mississippi Rule of Appellate Procedure 22(c)(3), the Attorney General asserted her office was entitled to notice and an opportunity to be heard on Garcia’s requests for litigation expenses. Even though Garcia’s counsel had made no such request, the trial court granted the motion. The Supreme Court vacated this ruling: "Under Rule 22(c)(3), the Attorney General is not entitled to notice and an opportunity to be heard on a request for litigation expenses that was never made—and will never be made—because Garcia’s appointed attorneys are not compensated and reimbursed through court-approved expenses but rather through their state employer. ... So the Attorney General’s request was not only premature; it was inapplicable. Thus, the trial court lacked authority to grant the Attorney General’s motion."

Williams v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2021-KA-00336-SCT

Opinion Date: July 21, 2022

Judge: Griffis

Areas of Law: Constitutional Law, Criminal Law

Courtney Williams appeals her manslaughter conviction. James Williams, his pregnant daughter Courtney, and Courtney’s two children lived with James at James’s residence. James had recently allowed Courtney’s boyfriend, Cymonde “CJ” Sailer, to move in with them. On the night of September 1, 2019, Courtney, her daughter, and CJ were in Courtney’s bedroom watching television. Between 10:30-11:00 p.m., James discovered that CJ had fallen asleep in Courtney’s bed despite an agreement that CJ would sleep in Courtney’s son’s bedroom across the hall. An altercation occurred between James and Courtney. During the altercation, Courtney stabbed James twice in the back. When law enforcement arrived, Courtney advised that her father had attacked her and that she had stabbed her father in the back. One of the law enforcement officers then left to check on James. James was found deceased inside of his vehicle outside of his residence. He was in the driver’s seat, leaned over with his head down. A forensic pathologist who performed James' autopsy found his blood alcohol level was about one and one half times the legal limit. The physician opined the cause of death was “stabbing of the torso” and that the manner of death was homicide. Courtney was indicted and charged with the first-degree murder of James. The Mississippi Supreme Court determined the trial court erroneously refused Courtney's proposed jury instructions related to her right to stand her ground, her conviction and sentence were reversed and the case remanded for a new trial.

State v. Miller

Court: Nebraska Supreme Court

Citation: 312 Neb. 17

Opinion Date: July 22, 2022

Judge: Stacy

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed Defendant's conviction and sentence for driving under the influence (DUI), fourth offense, and driving during revocation, second offense, holding that there was no merit to Defendant's assigned errors.

After a jury trial, Defendant was found guilty of non-aggravated DUI and of driving during revocation and sentenced to a term of imprisonment. The trial court further revoked Defendant's operator's license for a period of fifteen years following his release from incarceration. On appeal, Defendant alleged five instances of error, including the denial of his motion to suppress. The Supreme Court affirmed, holding (1) the district court did not err in finding that Defendant's warrantless blood test was reasonable for purposes of the Fourth Amendment; (2) there was no error in the district court's challenged evidentiary rulings; (3) the evidence supported the convictions; and (4) Defendant's challenges to the sentences imposed were unavailing.

Bolinske v. Sandstrom, et al.

Court: North Dakota Supreme Court

Citation: 2022 ND 148

Opinion Date: July 27, 2022

Judge: Jerod E. Tufte

Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law, Legal Ethics

Robert Bolinske appealed the dismissal of his claims against former Supreme Court Justice Dale Sandstrom and former District Court Judge Gail Hagerty (“State Defendants”) and awarding them attorney’s fees. In October 2016, Bolinske alleged in a press release that the State Defendants conspired to misfile or hide a petition for supervisory writ that he submitted in a prior case and thus tampered with public records. A few days after this press release, Rob Port published an article on his “Say Anything” blog regarding Bolinske’s press release. The article stated Port contacted Sandstrom and quoted Sandstrom as having said Bolinske’s press release was “bizarre and rather sad” and that “[a]lthough I’ve been aware of his mental health problems for years, I don’t recall ever having seen anything in his email before.” Three days after the article was published, Hagerty filed a grievance complaint against Bolinske, alleging he violated the North Dakota Rules of Professional Conduct. Based on the complaint, a disciplinary action was brought against Bolinske. The Inquiry Committee found Bolinske violated the Rules of Professional Conduct and issued him an admonition. The Disciplinary Board of the Supreme Court affirmed, and the North Dakota Supreme Court affirmed, concluding his procedural due process rights were not violated. The Supreme Court affirmed dismissal of Bolinske’s complaint in part, concluding the district court properly dismissed Bolinske’s claims of procedural and substantive due process, civil conspiracy, malicious prosecution, abuse of process, intentional and negligent infliction of emotional distress, governmental bad faith, and tortious outrage. The Supreme Court reversed in part, concluding the district court erred by dismissing the defamation claim under the statute of limitations. The award of attorney’s fees was vacated and the matter remanded for further proceedings.

Oregon v. Gray

Court: Oregon Supreme Court

Docket: S068673

Opinion Date: July 28, 2022

Judge: Garrett

Areas of Law: Constitutional Law, Criminal Law

Relator Randy Gray was the defendant charged in 2021 by a district attorney’s information with (among other things) the felony of assaulting a public safety officer. Shortly after the information was filed, relator’s defense counsel notified the district attorney that relator intended to appear as a witness before the expected grand jury proceeding. In addition to giving notice that relator would exercise his statutory right to appear, relator’s counsel later emailed the district attorney, expressing relator’s desire to have his counsel present in the grand jury room and asserting that he had a right to the presence of counsel under the Sixth Amendment to the United States Constitution. The district attorney did not agree to counsel being in the grand jury room. A trial court denied relator’s motion, ruling that relator’s exercise of his statutory right to appear before the grand jury did not entitle him to have his counsel present in the room with him, but that counsel could wait outside and be available for consultation. Relator then filed this proceeding, seeking a writ of mandamus directing the trial court to grant his motion. The Oregon Supreme Court concluded on the facts presented here, Article I, section 11, of the Oregon Constitution entitled relator to have his counsel present in the grand jury room during his testimony.

Jefferson v. Texas

Court: Texas Court of Criminal Appeals

Docket: PD-0677-21

Opinion Date: July 27, 2022

Judge: Sharon Keller

Areas of Law: Constitutional Law, Criminal Law

Appellant Harold Jefferson was indicted for one count of sexual assault and one count of indecency with a child. The State amended the indictment to add two more sexual-assault counts. On appeal, Appellant argued the trial court erred in allowing the amendment and that his counsel was ineffective for failing to object to the amendment or otherwise preserve error. The issues presented for the Texas Court of Criminal Appeals were: (1) whether adding a count constituted adding an additional offense to the indictment; and (2) whether counsel should have known that. To these, the Court answered both questions “yes.” The Court also concluded that the court of appeals erred in its ineffective-assistance analysis in several otherrespects. Consequently, we reverse the judgment of the court of appeals and remanded for further proceedings.

Parker v. Texas

Court: Texas Court of Criminal Appeals

Docket: PD-0388-21

Opinion Date: July 27, 2022

Judge: McClure

Areas of Law: Constitutional Law, Criminal Law

Appellant Silas Parker was charged with possession with intent to deliver four hundred grams or more of a controlled substance, namely, psilocybin. Appellant contested the legality of the search warrant on the ground that probable cause did not exist when it was issued since the psilocybin had not yet been delivered. This case presented a matter of first impression for the Texas Court of Criminal Appeals: Are all anticipatory search warrants prohibited under Texas law? The Court held that the language of article 18.01(b) of the Texas Code of Criminal Procedure permitted anticipatory search warrants and affirmed the judgment of the court of appeals.

In re Pers. Restraint of Kennedy

Court: Washington Supreme Court

Docket: 99748-9

Opinion Date: July 28, 2022

Judge: Debra Stephens

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

When Petitioner Andrew Kennedy was 19 years old, he killed his cousin’s 11-month-old daughter while she was in his care. Following a bench trial in 2007, the court convicted Kennedy of homicide by abuse and sentenced him to 380 months in confinement. Kennedy’s judgment and sentence became final after direct appeal in 2009. In 2019, he filed this personal restraint petition (PRP) seeking to be resentenced based on “[n]ewly discovered evidence.” Kennedy argued that advancements in the scientific understanding of adolescent brain development for young adults since his 2007 sentencing would have probably changed the trial court’s discretionary sentencing decision by allowing him to argue for a mitigated sentence based on youthfulness. The Court of Appeals dismissed Kennedy’s PRP as time barred, concluding that scientific evidence supporting such an argument for young adults Kennedy’s age was available at the time of sentencing. After the Washington Supreme Court granted Kennedy’s motion for discretionary review, he raised a second argument for relief based on the “significant change in the law” exemption to the time bar. The Supreme Court found Kennedy's PRP meet neither exemption to the time bar.

Washington v. Lupastean

Court: Washington Supreme Court

Docket: 99850-7

Opinion Date: July 28, 2022

Judge: Yu

Areas of Law: Constitutional Law, Criminal Law

Petitioner Cristian Lupastean was convicted by a jury of driving while license suspended (DWLS), driving a commercial vehicle without a valid commercial driver’s license (CDL), and reckless driving. He sought a new trial because one of the seated jurors failed to disclose information that was requested in voir dire. Lupastean contended the nondisclosure impaired his ability to intelligently exercise peremptory challenges and showed that the juror had actual and implied bias. After a review of the controlling Washington case law with respect to peremptory challenges in jury trials, the Supreme Court held that a motion for a mistrial or new trial may not be granted solely because undisclosed information about a juror might have triggered a peremptory challenge. "Instead, juror nondisclosure must be treated similarly to other nonconstitutional errors that require a new trial only on an affirmative showing of prejudice. Such a showing may be made if the moving party shows that the undisclosed information would have supported a valid challenge for cause or that the nondisclosure was otherwise prejudicial to the moving party’s right to a fair trial." The Court found Lupastean did not make the necessary showing here. The Court therefore affirmed his convictions.

“Pro-Life”: Delta Variant

SHERRY F. COLB

Cornell Law professor Sherry F. Colb considers what it means for many of today’s anti-abortion advocates to criminalize not only abortion providers but the person seeking to obtain an abortion as well. Professor Colb argues that this latest iteration of the anti-abortion movement is about turning women into public property subject to rape and then to reproductive servitude for the community.

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