Baez v. Town of Brookline, Mass.

Court: US Court of Appeals for the First Circuit

Docket: 21-1278

Opinion Date: August 11, 2022

Judge: William Joseph Kayatta, Jr.

Areas of Law: Civil Rights, Constitutional Law

The First Circuit affirmed the order of the district court granting summary judgment in favor of the Town of Brookline and its Selectmen and dismissing Plaintiffs' claims of unconstitutional mistreatment by the Town's "deliberate indifference" to complaints of racial discrimination by Brookline police, holding that Plaintiffs' claims on appeal were unavailing.

The five named plaintiffs here claimed that Brookline police officers violated their rights under the Equal Protection Clause by treating them differently because they are Hispanic. The district court granted summary judgment for Defendants. The First Circuit affirmed, holding that the record evidence did not support a finding of deliberate indifference.

Lawyers' Committee v. Garland

Court: US Court of Appeals for the Second Circuit

Docket: 21-1338

Opinion Date: August 5, 2022

Judge: JOHN M. WALKER, JR

Areas of Law: Civil Procedure, Constitutional Law

Plaintiffs submitted a petition to the United States Attorney’s Office for the Southern District of New York that contained information related to the September 11, 2001 attacks and requested that the Office present the petition to a grand jury. Over a year later, Plaintiffs filed this lawsuit, requesting (1) disclosure of grand jury records related to the petition and (2) a court order compelling defendants to present their petition to a grand jury if they have not yet done so. The district court dismissed the lawsuit for lack of standing and for failure to state a claim. On appeal, Plaintiffs challenge those findings.

The Second Circuit affirmed finding no merit to Plaintiffs’ challenges. The court explained that fail to establish standing to pursue an order compelling Defendants to deliver their Petition to a grand jury under the Federal Mandamus Statute or the APA. Further, the court wrote that the First Amendment does not encompass the right to force a U.S. Attorney to present whatever materials a member of the public chooses to a grand jury. Accordingly, Plaintiffs have failed to show a cognizable injury under the First Amendment to establish standing to pursue Count 2.

United States v. Sainfil

Court: US Court of Appeals for the Second Circuit

Docket: 20-778

Opinion Date: August 10, 2022

Judge: WILLIAM J. NARDINI

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of conspiracy to commit armed bank robbery; armed bank robbery; and brandishing a firearm during a crime of violence. He was sentenced to 219 months in prison. Defendant appealed, challenging the district court’s denial of his motion for a new trial based on his counsel’s purported ineffective assistance in (a) failing to move to suppress Defendant’s pre-Miranda statement to an agent of the Federal Bureau of Investigation and (b) conceding to the jury that Defendant was outside the bank when it was robbed. Defendant also challenged the sufficiency of the evidence and argues that his sentence was procedurally and substantively unreasonable.
 
The Second Circuit affirmed the judgment of the district court. The court held that Defendant was not prejudiced by his trial counsel’s failure to move for suppression of his pre-Miranda statement to the FBI, where he made a similar post-Miranda statement that was undisputedly admissible. Further, that Defendant’s counsel did not provide objectively deficient performance when he conceded before the jury that Defendant was outside the bank on the day it was robbed, in light of Defendant’s post-Miranda admission, and abundant witness testimony placing Defendant outside the bank as a lookout. Moreover, there was sufficient evidence to support Defendant’s convictions and his sentence was procedurally reasonable. The district court did not clearly err in applying sentencing enhancements based on its conclusion that, given the circumstances in this case, it was reasonably foreseeable that Defendant’s co-conspirators would use physical restraints and body armor.

Coello v. DiLeo

Court: US Court of Appeals for the Third Circuit

Docket: 21-2112

Opinion Date: August 8, 2022

Judge: Thomas L. Ambro

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

Messina filed suit, accusing Coello—who was dating Messina’s former boyfriend— of harassment. Coello pled not guilty and the charge was dismissed. Subsequently, private attorney Estabrooks requested an appointment to prosecute Messina’s complaint. New Jersey Court Rules permit courts to appoint a “private prosecutor to represent the State in cases involving cross-complaints.” This 2007 prosecution did not involve a cross-complaint and Estabrooks did not disclose that she was also representing Messina in custody and other civil actions against Coello’s boyfriend. Without recording any findings as to the need for a private prosecutor or the suitability of Estabrooks, Municipal Judge DiLeo approved her application. Irregularities continued at trial and post-conviction. Without addressing Coello’s lack of representation or her evidence, DiLeo reinstated her jail term based on a letter from Estabrooks.

In 2016, a New Jersey state court vacated Coello's harassment conviction. The prosecution, by then familiar with allegations of judicial misconduct against DiLeo, did not oppose the motion.

In 2020, Coello filed this federal civil rights action against Estabrooks, DiLeo, and municipal defendants. The district court dismissed most of her claims as untimely, reasoning that at the time of her trial and sentencing, Coello had reason to know of her alleged injuries. The Third Circuit reversed the dismissal, citing the special timeliness rules governing her precise claims. Under Heck v. Humphrey, her claims all imply the invalidity of her criminal prosecution; she could not file suit until her conviction was vacated

Thompson v. State of Delaware Department of Services for Children, Youth and their Families

Court: US Court of Appeals for the Third Circuit

Docket: 20-3111

Opinion Date: August 11, 2022

Judge: Michael A. Chagares

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

In 2016, Thompson was accepted a position as the Education Unit Supervisor for the Delaware Department of Services for Children, Youth and their Families (DSCYF) with a one-year probationary period. Thompson’s predecessor, Porter, successfully contested her termination. In 2017, Thompson was informed that Porter would be reinstated as Education Supervisor and that Thompson would become the Transition Coordinator. DSCYF did not permit Thompson to pursue a grievance. Thompson worked as the Transition Coordinator for several weeks, then had emergency surgery in May 2017. Thompson’s probationary period was set to end in July 2017. Unbeknownst to Thompson, her probationary period was extended. Thompson returned to work in October 2017. DSCYF demoted Thompson to a teaching position. Thompson was not allowed to contest the demotion. Thompson lacked the necessary special education certifications for her new position. Porter recommended in April 2018 that Thompson be terminated for failure to obtain special education certifications. Thompson filed a grievance. Thompson was terminated from DSCYF on July 2, 2018.

The Third Circuit affirmed the dismissal of Thompson’s claims under 42 U.S.C. 1983 for violations of her due process rights. As a former probationary employee at DSCYF, Thompson did not have a protected property interest in her employment. Thompson’s claim under the Delaware Whistleblowers’ Protection Act was dismissed because the Eleventh Amendment precluded the claim.

Marc Hall v. US

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-6848

Opinion Date: August 10, 2022

Judge: GREGORY

Areas of Law: Civil Rights, Constitutional Law

Plaintiff s an inmate at United States Penitentiary (“USP”) Hazelton who filed a pro se civil action in United States district court alleging violations under the Federal Tort Claims Act (“FTCA”) for denied and delayed medical care of his chronic illnesses. Plaintiff also filed a Motion for Leave to Proceed in forma pauperis (“IFP”). Following the Magistrate Judge’s recommendation, the district court denied Plaintiff’s IFP motion on the grounds that he did not meet the “imminent danger of serious physical injury” exception.

Plaintiff appealed and the Fourth Circuit vacated the district court’s judgment and remanded. The court explained that a plain reading of the statute requires that litigants allege sufficient specific facts to demonstrate a nexus between the claims presented and the imminent danger alleged. Here, both parties agree that it is a “commonsense requirement that a prisoner’s allegation of imminent danger must relate to their underlying claims.” Moreover, the Government concedes that “a fairly traceable relationship exists between Plaintiff’s alleged imminent danger and the claims set forth in his FTCA complaint, as they both arise from his allegations of delay and denial of medical treatment.” Plaintiff has passed this threshold because he alleged that the prison’s continued denial and delay in providing medical treatment are directly causing his worsening physical and medical conditions which present an imminent danger of serious physical injury.

Finally, since the district court did not have access to Defendant’s medical records and, thus, did not have a complete record to determine whether Defendant satisfied the “imminent danger” exception based on the court's clarified standard, the court remanded for further proceedings consistent with this opinion.

Rodolfo Tinoco Acevedo v. Merrick Garland

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-2048

Opinion Date: August 11, 2022

Judge: GREGORY

Areas of Law: Constitutional Law, Immigration Law

Petitioner appealed an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for cancellation of removal. The Fourth Circuit granted Petitioner’s petition for review, vacated the order of removal, and remanded to the BIA for further proceedings. The court held that the BIA failed to address whether Petitioner’s case should be remanded to a new immigration judge (“IJ”) under Matter of Y-S-L-C-, 26 I. & N. Dec. 688 (BIA 2015).

The court explained that while Petitioner’s s brief to the BIA makes clear that his primary focus was to persuade the BIA to reverse the IJ’s decision, the court noted that it also shows he presented an alternative argument seeking remand before a new IJ under Matter of Y-S-L-C-. Accordingly the court found that Petitioner sufficiently exhausted his claim that this case should be remanded to a new IJ under Matter of Y-S-L-C-.The court further found that the government’s analysis glosses over one key point: the BIA in Matter of Y-S-L-C- never definitively concluded that—or fully analyzed whether— the IJ’s actions constituted a due process violation. Therefore, the BIA’s decision not to state that the IJ’s conduct prejudiced the fifteen-year-old applicant supports Petitioner’s interpretation of the Matter of Y-S-L-C- holding as independent of a due process violation.

US v. Dereck McClellan

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-2251

Opinion Date: August 10, 2022

Judge: RICHARDSON

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

The United States Government seized $69,940.50 in cash from Plaintiff’s car. Plaintiff and his girlfriend challenged the seizure, claiming that the cash was not subject to forfeiture. To forfeit the seized cash, the Government bore the burden of establishing a connection between the cash and the illegal activity—in this case, illegal drug trafficking. The district court, in granting summary judgment, found that the facts painted a picture that definitively established that the cash was drug money.
 
The Fourth Circuit reversed finding that the record is unclear regarding whether a reasonable jury might well decide that the painting of these facts shows the cash came from drug trafficking. The court explained that summary judgment in a forfeiture proceeding is like summary judgment in any other civil case. Applying those standards correctly ensures that the Government must prove its case before depriving citizens of their private property based on an allegation of wrongdoing. Here, the Government has the burden of proof. The Government lacks any direct evidence of a drug transaction or involvement in the drug trade beyond Plaintiff’s possession of a single marijuana blunt and medical marijuana cards. The Government would have the court rely on its own inferences from its circumstantial evidence, which the court may not do.

US v. Ricky Runner

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-4085

Opinion Date: August 8, 2022

Judge: FLOYD

Areas of Law: Constitutional Law, Criminal Law

Appellant pleaded guilty to one charge of being a felon in unlawful possession of a firearm, in violation of 18 U.S.C. Sections 922(g)(1) and 924(a)(2), but reserved his right to appeal the district court’s denial of his motion to suppress evidence seized during a warrantless search of his vehicle after officers visually observed a glass stem pipe in the console of his car. Appellant now makes that appeal, arguing the stem pipe was insufficient to trigger the plain view exception to the Fourth Amendment’s protection from unreasonable searches.
 
In finding neither clear factual error nor an error of law in the district court’s reasoning the Fourth Circuit affirmed. The court explained that for the plain view exception to apply, the government must show that: “(1) the officer [was] lawfully in a place from which the object [could] be plainly viewed; (2) the officer ha[d] a lawful right of access to the object itself; and (3) the object’s incriminating character [wa]s immediately apparent.” United States v. Jackson, 131 F.3d 1105 (4th Cir. 1997).
 
Here, even though a glass stem pipe may be put to innocent uses—uses that continue to expand and should be taken into consideration—here, viewing the evidence in the light most favorable to the government and in its totality, the plain view exception applies, and the search of the vehicle was lawful.

Ramirez v. Escajeda

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-50858

Opinion Date: August 10, 2022

Judge: Stuart Kyle Duncan

Areas of Law: Civil Rights, Constitutional Law

Defendant, El Paso found Plaintiff’s son in the process of hanging himself from a basketball hoop. But it was dark, Defendant was afraid the man might have a weapon, and the man did not respond to Defendant’s orders to show his hands. So Defendant tased the man once, took down his body, and performed CPR. To no avail. The man soon after died in the emergency room from the hanging. His parents sued Defendant for using excessive force, the district court denied qualified immunity, and Defendant appealed.

The Fifth Circuit reversed the district court’s decision and rendered judgment granting Defendant qualified immunity. The court explained that the district court and Plaintiffs rely on cases holding that officers may not use force against arrestees who are already subdued and in police custody. This case is markedly different. The reason Defendant tased the man was that he was not in custody and Defendant was afraid he might have a weapon. Even if that fear turned out to be groundless—something the court wrote it cannot decide here—Defendant still did not transgress any clearly established law.

Rost v. USA

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-51064

Opinion Date: August 11, 2022

Judge: Stuart Kyle Duncan

Areas of Law: Constitutional Law, Tax Law

Plaintiff formed the Enelre Foundation as a Stiftung under the laws of Liechtenstein. Stiftung is a German word meaning, roughly, “foundation” or “endowment.” Enelre’s purpose is to provide education and general support for Plaintiff and his children. Plaintiff transferred $3 million to Enelre’s bank accounts. He later learned the IRS would consider Enelre a “foreign trust,” triggering certain reporting requirements. Plaintiff belatedly filed the reports, and the IRS assessed penalties. Plaintiff paid the penalties and then filed this refund action. The district court granted summary judgment for the government.

The Fifth Circuit affirmed. The court explained that the district court correctly found that Enelre qualifies as a foreign trust. Its organizing documents explain that Enelre’s purpose is to support its beneficiaries and limit its transactions to pursuing and realising its purpose. This is characteristic of an ordinary trust. The documents also prohibit Enelre from conducting commercial trade. Liechtensteinian Public Registry filings confirm this prohibition. Enelre’s familial purpose, lack of business objective, and bar on commercial activity render it a trust. Enelre’s form of organization confirms it is a trust. Enelre is subject to Liechtenstein’s “Act on Trust Enterprises.”

Tracy v. Lumpkin

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-40686

Opinion Date: August 5, 2022

Judge: Graves, Jr.

Areas of Law: Constitutional Law, Criminal Law

Petitioner was convicted of capital murder and sentenced to death. His conviction was affirmed on direct appeal and his state habeas petition was also unsuccessful. Through state habeas counsel, Petitioner filed a motion for the appointment of counsel, under 18 U.S.C. Sec. 3599(a)(2), to assist him in preparing a petition for federal habeas relief. Petitioner identified specific attorneys he wanted to represent him. The district court granted Petitioner's motion for counsel, but appointed an attorney other than those requested by Petitioner. Petitioner subsequently filed a motion under Sec. 3599(a)(2), seeking to substitute his court-appoitned counsel. The district court rejected Petitioner's request, holding he had not offered a sufficient basis for substituting counsel because the court-appointed conflict-free counsel was competent to handle death-penalty matters. Petitioner appealed the court's interlocutory order.

On appeal, the Fifth Circuit dismissed Petitioner's appeal. The court noted that it routinely reviews challenges to the denial of a motion to substitute counsel on appeal from a final judgment. Thus, the judgment petitioner challenged did not trigger the court's jurisdiction under the collateral-order doctrine.

USA v. Sheperd

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-20073

Opinion Date: August 11, 2022

Judge: Don R. Willett

Areas of Law: Constitutional Law, Criminal Law

Defendant the owner of a home health agency was convicted of Medicare fraud. On appeal, she complained that her Sixth Amendment right to effective assistance of counsel had been violated. Turns out, Defendant’s pretrial counsel was also representing one of the Government’s star witnesses. The Fifth Circuit remanded for an evidentiary hearing on whether Defendant’s lawyer’s conflict of interest—a conflict the Government knew about— adversely affected his representation, and the district court answered: yes.

The Fifth Circuit vacated Defendant’s convictions and remanded for a new trial. The court explained that as the Government admits, it never offered Defendant a plea deal while she was represented by her conflicted pretrial counsel, or after. So there is no rejected plea deal to measure Defendant’s harm against. The court explained the constitutional right to counsel is “perhaps the central feature of our adversarial system,” as it “helps make real the Constitution’s other criminal procedure promises. The court wrote that the Government’s proposed remedy— to keep the convictions intact but remand for new plea negotiations— wouldn’t neutralize the taint of the constitutional violation.

Van Overdam v. Texas A & M Univ

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-20185

Opinion Date: August 9, 2022

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law

In response to sexual abuse allegations by another student, a Texas A&M panel found Plaintiff responsible for violating Texas A&M’s policy. Plaintiff sued Texas A&M and several university administrators for sex discrimination under Title IX and deprivation of constitutional due process under 42 U.S.C. Section 1983. The district court ultimately granted Defendants’ motion to dismiss Plaintiff’s Title IX erroneous outcome and 1983 due process claims. Thus, only Plaintiff’s Title IX selective enforcement claim was allowed to proceed. Plaintiff filed a motion for reconsideration, which the district court denied. The district court then certified its rulings for interlocutory appeal on the grounds that they turn on two controlling questions of law.

The Fifth Circuit affirmed the district court’s ruling and concluded that Texas A&M did not violate Plaintiff’s due process rights. The court explained that Plaintiff received advanced notice of the allegations against him. He was permitted to call witnesses and submit relevant, non-harassing evidence of his innocence to a neutral panel of administrators. He was represented by counsel throughout the entirety of his disciplinary proceeding. He had the benefit of listening to the accuser’s description of the allegations directly. And he and his attorney had the opportunity to submit an unlimited number of questions to the disciplinary panel.

Estate of Zakora v. Chrisman

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-1620

Opinion Date: August 10, 2022

Judge: Ronald Lee Gilman

Areas of Law: Civil Rights, Constitutional Law

Corrections officer Johnson found Zakora in his bunk, dead from accidental fentanyl toxicity. Earlier, another prisoner allegedly told Johnson and/or Mobley to check on Zakora. Mobley worked the night shift before Johnson’s shift started. Both officers stated in unrebutted affidavits that they had no knowledge that Zakora possessed, ingested, or intended to ingest illegal drugs. Mobley stated that he did not speak with Zakora during his shift, and no one advised him to check on Zakora; Johnson stated he discovered Zakora only seconds after a prisoner said that Zakora was not “doing too good.” Two other prisoners in the small unit were hospitalized from drug overdoses in the days before Zakora’s death, but no immediate investigation was undertaken. After Zakora’s death, a drug-detection dog gave positive indications of contraband in the unit.

Zakora’s overdose, according to his Estate’s 42 U.S.C. 1983 complaint, was the consequence of a longstanding problem of drug smuggling into Lakeland, orchestrated by an unidentified female corrections officer; an unidentified prisoner allegedly informed inspectors about the drug-smuggling ring. The estate claimed failure to protect Zakora, failure to promptly investigate other drug overdoses, and deliberate indifference to Zakora’s serious medical needs. The Sixth Circuit reversed the dismissal of the complaint, in part, The allegations state an Eighth Amendment failure-to-protect claim and a claim for supervisory liability against two defendants. The court did not consider qualified immunity.

Shumate v. City of Adrian

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-2795

Opinion Date: August 10, 2022

Judge: Eric L. Clay

Areas of Law: Civil Rights, Constitutional Law

In a parking lot, Officer Powers approached Shumate’s daughter (Amy) to question why her license plates did not match her car’s registration. Amy did not have insurance and was not allowed to drive home. After Amy called Shumate for a ride, Powers and Amy began to argue about retrieving items from the car. Shumate arrived and immediately began to argue with Powers; the two had had prior hostile interactions. About 47 seconds after Shumate arrived, Powers fired his Taser. Shumate fell backward, screaming in pain. Powers claims Powers straddled the prone Shumate, yelling “stop resisting,” though the video indicates no resistance. Powers deployed his Taser again. Powers apparently punched and kneed Shumate, again deployed the taser, and employed palm-heel, backhand, and knee strikes. Shumate was treated at a hospital and eventually pled guilty to the misdemeanor offense of being a disorderly person. Powers was disciplined for “rudeness to a citizen” (Amy).

In a 42 U.S.C. 1983 civil rights action, the district court denied motions for summary judgment on immunity grounds. The Sixth Circuit affirmed in part; neither qualified nor state law immunity shields Powers from liability. The right to be free from being tased and subjected to physical force (alleged punching, knee strikes, kicking, and hitting) while not actively resisting and while being non-violent was clearly established before 2019, Powers was on “notice that his specific conduct was unlawful.”

Stein v. Gunkel

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-6118

Opinion Date: August 9, 2022

Judge: McKeague

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

The Sixth Circuit affirmed the judgment of the district court granting summary judgment in favor of Defendants, two jail officers, and dismissing Plaintiff's 42 U.S.C. 1983 claims that Defendants caused his injuries, holding that Plaintiff failed to establish that either defendant violated his constitutional rights.

Plaintiff was booked into Boone County Detention Center on nonviolent drug charges and was placed in a cell with Jordan Webster, a fellow detainee. Webster attacked and beat Plaintiff during the night. Plaintiff brought this action alleging that Defendants violated the Fourteenth Amendment by failing to protect him from the risk of harm posed by Webster. The district court granted summary judgment in favor of Defendants. The Sixth Circuit affirmed, holding that Plaintiff failed to establish that Defendants were deliberately indifferent to a serious risk of harm by failing to protect him from Webster.

United States v. Stevenson

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-3856

Opinion Date: August 9, 2022

Judge: Siler

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

The Sixth Circuit affirmed the order of the district court denying Appellant's motion to suppress, holding that there was no violation of Defendant's Fourth Amendment rights under the circumstances of this case.

Defendant entered a conditional plea to being a felon in possession of a firearm. Defendant subsequently brought this appeal challenging the district court's order denying his motion to suppress, arguing that the arresting officer lacked probable cause to initiate the traffic stop leading to the search of his car and unconstitutionally prolonged the stop. The Sixth Circuit affirmed, holding (1) there was sufficient evidence to warrant a prudent person in believing Defendant had violated 4511.431(A); and (2) the officer had probable cause to detain Defendant, investigate the source of a marijuana odor, and continue search the entire vehicle for marijuana.

Koch v. Village of Hartland

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1007

Opinion Date: August 8, 2022

Judge: St. Eve

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

The First Circuit reversed the judgment of the district court concluding that the retroactivity rule from two Seventh Circuit opinions - United States v. Leach, 639 F.3d 769 (7th Cir. 2011), and Vasqez v. Foxx, 895 F.3d 515 (7th Cir. 2018) - controlled and that, therefore, a disputed ordinance applied prospectively, holding that the ordinance was retroactive.

The ordinance at issue was passed by the Village of Hartland, Wisconsin and placed a moratorium against any new sex offenders residing there either temporarily or permanently. Plaintiff, a registered sex offender, brought this action against the Village, alleging that the ordinance violated the Ex Post Facto Clause of U.S. Const. art. I, 10. Under the Leach-Vasquez rule, a law is not retroactive and cannot violate the Ex Post Facto Clause if it applies "only to conduct occurring after its enactment." The district court only considered the retroactivity prong of the two-part analysis because, under Leach-Vasquez, the ordinance operated only prospectively. The Seventh Circuit reversed and remanded the case, holding (1) this Court overturns the Leach-Vasquez rule governing the retroactivity inquiry of the Ex Post Facto Clause, and instead, the critical question is whether the law attaches new legal consequences to events completed before its enactment; and (2) the subject ordinance applies retroactively.

Shakman v. Pritzker

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-1739

Opinion Date: August 5, 2022

Judge: Scudder

Areas of Law: Constitutional Law

In this case involving the fifty-year-old decision of a federal district court entering the 1972 "Shakman decree" precluding the Governor of Illinois and units of local government from conditioning governmental employment on political patronage the Seventh Circuit held that the power to hire, fire, and establish accompanying policies needs to return to the people of Illinois and the Governor they elected.

In 2019, the Clerk of Cook County filed a motion to vacate the Shakman decree. The magistrate judge denied the motion, and the Clerk appealed. The Seventh Circuit court affirmed. Governor J.B. Pritzker then moved under Fed. R. Civ. P. 60(b)(5) to vacate the decree, claiming that the State had satisfied the requirements of the decree and that ongoing enforcement of the decree offended principles of federalism. The district court denied the motion. The Seventh District reversed and remanded with instructions to vacate the 1972 consent decree as it applied to the Illinois Governor, holding that Governor Pritzker had satisfied the objectives of the decree.

Stewardson v. Biggs

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-3118

Opinion Date: August 5, 2022

Judge: Jackson-Akiwumi

Areas of Law: Civil Rights, Constitutional Law

The Seventh Circuit dismissed this interlocutory appeal from a district court order denying qualified immunity to a law enforcement officer because of disputed facts, holding that because Defendant did not bring a purely legal argument that did not depend on disputed facts, this Court lacked jurisdiction.

Plaintiff brought this action under 42 U.S.C. 1983 against the City of Logansport and Defendant, alleging violations of his Fourteenth Amendment rights stemming from certain incidents involving the alleged use of excessive force. Defendant sought summary judgment based on qualified immunity. The district court denied qualified immunity based on a factual dispute precluding the grant of qualified immunity on summary judgment. Defendant appealed. The Seventh District dismissed the appeal, holding that this Court lacked jurisdiction to hear this appeal.

Stockton v. Milwaukee County, Wisconsin

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1116

Opinion Date: August 9, 2022

Judge: St. Eve

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

The Seventh Circuit affirmed in part and reversed and remanded in part the decision of the district court dismissing all of Plaintiff's claims against Defendant at summary judgment, holding that the district court erred in granting summary judgment as to Plaintiff's excessive force claims against correctional officer Brian Piasecki.

Plaintiff, the special administrator of the estate of Michael Madden, brought this action alleging deliberate indifference, use of excessive force, Monell liability, and state law claims against the state actors involved in the care of Madden while he was jailed in Milwaukee County. Over the course of one month, Madden developed infective endocarditis, which medical staff failed to diagnose. Madden died at the end of the month. The district court dismissed all of Plaintiff's claims at summary judgment. The Seventh Circuit reversed in part, holding (1) the district court erred in awarding Piasecki summary judgment based on qualified immunity; and (2) the district court's judgment is otherwise affirmed.

Towne v. Donnelly

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-2469

Opinion Date: August 11, 2022

Judge: Kenneth Francis Ripple

Areas of Law: Civil Rights, Constitutional Law

Towne was the LaSalle County State’s Attorney, 2006-2016. Donnelly worked as a legal intern with that office in 2012 and impermissibly accessed a file about the ongoing prosecution of her son. Towne locked the file to prohibit her continued access. A few years later, Donnelly applied for a position with the State’s Attorney’s Office. Towne did not hire her. Donnelly defeated Towne in the 2016 election for State’s Attorney, then launched an investigation into Towne’s conduct as State’s Attorney; she enlisted assistant state’s attorneys and Ottawa police officers to investigate. For seven months, they interviewed witnesses, allegedly concealing exculpatory portions of the interviews, and fabricating inculpatory testimony. A grand jury indicted Towne, who successfully moved to have a special prosecutor appointed. The special prosecutor did not act on the charges. After 10 months with no development, Towne successfully moved to dismiss the charges on speedy trial grounds.

Towne filed suit, 42 U.S.C. 1983, alleging that the prosecution was retaliation for his campaign for state’s attorney and violated his First Amendment rights. The district court dismissed the complaint as untimely, applying a two-year statute of limitations that began to run when Towne was indicted, not when he was acquitted. The Seventh Circuit affirmed. First Amendment retaliation claims accrue when the underlying criminal charge is brought; the Supreme Court’s 2019 decision in McDonough v. Smith did not change that rule.

United States v. Davis

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-3091

Opinion Date: August 11, 2022

Judge: Kirsch

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

Police arrested Davis, a convicted felon, on a state warrant for three counts of aggravated battery by discharge of a firearm, just outside of his residence. While being arrested, Davis stated that there were children in the house. Officers entered the house to conduct a limited sweep of areas where a person could be hiding, finding an eight-year-old child and a 19-year-old. An officer observed a rifle, upright in plain view, in an open bedroom closet. About 45 minutes later, after the sweep had concluded, Antionette, a woman with whom Davis was living and the owner of the house, arrived and gave the officers oral and written consent to search the home, acknowledging that she had been advised of her rights.

Davis, charged with illegally possessing a firearm, 18 U.S.C. 922(g)(1), unsuccessfully moved to suppress the rifle on the basis that no valid exception to the warrant requirement justified the initial entry or the later search. The district court found that three separate exceptions applied: a protective sweep following Davis’s arrest, exigent circumstances because a child was in the home, and Antoinette's voluntary consent. The Seventh Circuit affirmed. Davis did not dispute that Antoinette’s consent was voluntary and not tainted by the initial entry into the house.

Don Huizenga v. ISD No. 11

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2418

Opinion Date: August 11, 2022

Judge: Per Curiam

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

Three Anoka County residents sued a school district and teachers’ union about their union leave and reimbursement plan, alleging constitutional and statutory violations. The district court dismissed the case for lack of standing. The residents appealed.
 
The Eighth Circuit reversed the district court’s judgment. The court explained that pleading jurisdiction requires only “a short and plain statement of the grounds for the court’s jurisdiction,” while pleading the merits requires not just “a short and plain statement of the claim,” but one that “show[s] that the pleader is entitled to relief.” Here, the residents adequately alleged they are school district taxpayers and identified a “municipal action” contributing to their injury. Specifically, the school district spends tax revenues on the allegedly illegal action because the collective-bargaining agreement requires it to provide up to 100 days of paid leave, and the union does not fully reimburse that expense. Since the district court did not address the preliminary injunction factors, the common approach is to remand for the district court to conduct the full analysis in the first instance.

Jen Banford v. Board of Regents of U of MN

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2160

Opinion Date: August 9, 2022

Judge: KOBES

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

Plaintiff worked at the University of Minnesota Duluth (UMD) as the women’s softball head coach and part-time Director of Operations for the women’s hockey team. After UMD relieved Plaintiff of her hockey duties, she sued, claiming that she was fired for being gay. The district court granted summary judgment to UMD, and the Eighth Circuit affirmed.
 
The court explained that Title VII plaintiff can survive summary judgment either by (1) presenting direct evidence of discrimination, or (2) “creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext.” Towery v. Miss. Cnty. Ark. Econ. Opportunity Comm’n, Inc., 1 F.4th 570 (8th Cir. 2021)
 
Here, Plaintiff did not present any direct evidence of discrimination, so the court analyzed her claims under the familiar McDonnell Douglas burden-shifting framework. The court explained that. even assuming that Plaintiff could establish a prima facie case of discrimination, she has not met her burden of showing that UMD’s legitimate, nondiscriminatory justification for nonrenewal is pretextual. Plaintiff argued that UMD’s legitimate, nondiscriminatory justification isn’t credible because the accepted Division I practice of “cleaning house” when a head coach leaves is limited to firing coaching staff—not operations staff. The court reasoned that it finds it credible that UMD would want to allow its new head coach to choose her Director of Operations. Further, the court found that Plaintiff has not carried her ultimate burden of persuading the court that she was the victim of intentional discrimination. Out of four part-time hockey staff members, three were openly gay.

John Doe, I v. Doug Peterson

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-1680

Opinion Date: August 5, 2022

Judge: COLLOTON

Areas of Law: Constitutional Law

Nebraska requires persons who enter the State to register as sex offenders in Nebraska if they are obliged to register as sex offenders by another jurisdiction. This requirement applies to persons who committed their offenses as juveniles. Four Nebraska residents who committed sex offenses in other States as juveniles brought this action. They alleged that the registration requirement violated their rights to travel and to equal protection of the laws, because Nebraska does not impose a comparable requirement for persons who committed offenses as juveniles in Nebraska. The district court concluded that the registration requirement did not implicate the sex offenders’ right to travel, and that the requirement was rational and consistent with equal protection.

The Eighth Circuit affirmed. The court explained that Nebraska has a legitimate interest in public safety and in limiting the number of potentially dangerous sex offenders who can avoid its registry. In furtherance of this interest, Nebraska requires offenders who must register in another State to register in Nebraska. The Does suggest that Nebraska should be required to conduct a “substantial equivalence” analysis for offenders who are required to register in another jurisdiction, and to eliminate the registration requirement for those whose offenses are not substantially equivalent to a Nebraska registration offense. But in opting to perform an intensive “substantial equivalence” inquiry only for offenders who are not required to register in another jurisdiction, the State permissibly chose to limit the resources devoted to individualized consideration.

Nani Keta v. Merrick Garland

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3243

Opinion Date: August 10, 2022

Judge: COLLOTON

Areas of Law: Constitutional Law, Immigration Law

Petitioner a citizen and native of Eritrea, petitions for review of an order of the Board of Immigration Appeals denying relief under the Convention Against Torture. An immigration judge granted Petitioner deferral of removal under the Convention, but the Board reversed that finding on administrative appeal, and Petitioner was ordered removed to Eritrea.
 
The Eighth Circuit denied the petition. On appeal, Petitioner argues that the agency impermissibly concluded that his testimony was not credible. The court held that the credibility finding here was supported by substantial evidence, explaining that the immigration judge reasonably concluded that Petitioner’s failure to mention significant facts about alleged imprisonment and torture to the asylum officer undermined the credibility of his later claim at the immigration hearing.
 
Petitioner also contends that the absence of a Kunama interpreter at the hearing in immigration court denied him due process. The IJ here took a number of steps to ensure that Petitioner could participate adequately in the hearing. After the immigration court was unable to secure an interpreter in Petitioner’s preferred language, the court arranged the next best option with a Tigrinya interpreter.
 
Finally, the court upheld the Board’s conclusion that the evidence was insufficient as a matter of law to support the IJ’s finding that Petitioner likely would be tortured. The court explained that the Board adequately explained that anecdotal reports of imprisonment of returnees from Sudan, and reports of torture at the prison, are not sufficient to support a finding that Petitioner, in particular, is likely to be imprisoned and tortured if returned to Eritrea.

United States v. Anthony Hall

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2541

Opinion Date: August 11, 2022

Judge: GRASZ

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of aggravated bank robbery, and the district court sentenced him to mandatory life imprisonment under the federal “three strikes” law. Defendant appealed his conviction and sentence. On appeal, Defendant argued that (A) the district court erroneously admitted evidence of his flight from the second traffic stop; (B) the jury’s verdict lacked sufficient evidence; and (C) the three strikes law is unconstitutional.
 
The Eighth Circuit affirmed.  The court held that the district court did not clearly abuse its discretion in concluding any danger of unfair prejudice did not substantially outweigh the evidence’s probative value. Here, evidence of Defendant’s flight from the second traffic stop helped establish the government’s narrative that Defendant continually evaded police for ten days following the robbery. It also helped the jury understand why the police found Defendant, as well as incriminating evidence, in another state. Further, Defendant’s sole argument on appeal is that he was mistakenly identified as the robber. But overwhelming evidence indicates his identification was not a mistake. Finally, the court explained that based Defendant’s criminal history outlined earlier, he has proven he remains a danger to the public despite being given a second and third chance to show otherwise. The sentence imposed here was not grossly disproportionate to Defendant’s crime.

United States v. Jeremy Robinson

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-2396

Opinion Date: August 9, 2022

Judge: GRASZ

Areas of Law: Constitutional Law, Criminal Law

Defendant pled guilty to unlawfully possessing a firearm as a felon. He appealed the district court’s conclusion that his prior Arkansas burglary convictions were separate offenses, rendering him an armed career criminal subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”).

The Eighth Circuit affirmed. The court explained that the ACCA mandates a 15-year minimum sentence for a defendant who has been convicted of unlawfully possessing a firearm as a felon following “three previous convictions by any court . . . for a violent felony . . . committed on occasions different from one another[.]” 18 U.S.C. Section 924(e)(1) In determining whether prior convictions are separate and distinct, at least three factors are relevant: “(1) the time lapse between offenses, (2) the physical distance between their occurrence, and (3) their lack of overall substantive continuity, a factor that is often demonstrated in the violent-felony context by different victims or different aggressions.” United States v. Pledge, 821 F.3d 1035.
 
Here, Defendant committed three residential burglaries—each on different days, in different locations, and against different victims—over an approximate three-week span. The court held that these offenses qualify as separate and distinct criminal episodes committed on occasions different from one another.

United States v. Omar Taylor

Court: US Court of Appeals for the Eighth Circuit

Docket: 20-2756

Opinion Date: August 10, 2022

Judge: ERICKSON

Areas of Law: Constitutional Law, Criminal Law

The district court sentenced Defendant to concurrent terms of 280 months’ imprisonment on the sex trafficking offenses and a consecutive 120 months for committing a felony involving a minor while a registered sex offender, for a total imprisonment term of 400 months. Defendant raises four claims on appeal: (1) the evidence was insufficient to sustain the sex trafficking convictions; (2) the district court erred when it instructed the jury that a “happy ending massage” was a commercial sex act; (3) the district court abused its discretion when it admitted prior bad act evidence; and (4) a conviction on Count One—sex trafficking of a minor—violated the double jeopardy clause because it is a lesser included offense of Count Two—sex trafficking by force, fraud, and coercion.

The Eighth Circuit affirmed. The court held that the testimony at trial was sufficient beyond a reasonable doubt to establish the women were directed and encouraged by Defendant to digitally stimulate clients' genitalia in exchange for money—conduct that satisfies the statutory definition of a “commercial sex act.” Next, the evidence presented at trial was sufficient to prove beyond a reasonable doubt that Defendant participated in a venture by knowingly receiving money acquired from his massage business, which included assisting, supporting, and facilitating sex trafficking. Further, the testimony offered by the women working in Defendant’s massage business, if given credence by the jury, is sufficiently strong for the court to conclude that the 2005 conviction, even assuming it was improperly admitted, did not have a substantial influence on the jury’s verdict.

United States v. Robert Ivers

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3478

Opinion Date: August 10, 2022

Judge: MELLOY

Areas of Law: Constitutional Law, Criminal Law

Defendant alleges that during the third revocation hearing, the district court violated his right to due process because it forced him to proceed either with an incompetent attorney or without any attorney at all.

The Eighth Circuit reversed finding that Defendant was denied the right to counsel. The court explained that to show his waiver of the right to counsel was involuntary, a defendant must show the district court forced him to choose between inadequate representation and self-representation.

Here, Defendant has shown he was justifiably dissatisfied with his attorney. This is not a case where the evidence shows a defendant who disagrees with his attorney’s strategy or wants to delay the hearing. Instead, the evidence shows an attorney who was not prepared to handle a revocation of supervised release hearing. Further, the attorney’s comment regarding “the big house or the nut house” demonstrates he did not know the factual background of the case or the potential consequences that Defendant was facing. Because Defendant was forced to proceed with either this unprepared attorney or no attorney at all, Defendant’s decision to waive his right to counsel was not knowing and voluntary and his right to due process was violated.

United States v. Salvador Nunez-Hernandez

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-1981

Opinion Date: August 8, 2022

Judge: STRAS

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

Defendant believes that the statute criminalizing reentry into this country after removal violates his equal-protection rights. See 8 U.S.C. Section 1326(a), (b). He did not raise this issue before the district court. The Eighth Circuit affirmed the district court’s ruling and denied the pending motion for judicial notice.
 
The court explained that even constitutional arguments can be forfeited. Forfeiture occurs when a party has an argument available but fails to assert it in time. The court wrote that failure to raise an equal-protection challenge before the district court is a classic example of forfeiture. During the six months before he pleaded guilty, Defendant filed more than a dozen motions raising all sorts of issues, but not one of them questioned the constitutionality of the illegal-reentry statute or mentioned equal protection. Had he done so, the district court would have had an opportunity to potentially correct or avoid the alleged] mistake in the first place.
 
The court explained that under these circumstances, Defendant’s constitutional argument receives, at most, plain-error review. Here, to succeed, Defendant’ had to show, among other things, that there was a clear or obvious error under current law. In this case, there is one district court case on his side, see Carillo-Lopez, 555 F. Supp. 3d at 1001, but at most it shows that the issue is subject to reasonable dispute. The court explained that picking one side of a reasonable dispute cannot be clearly or obviously wrong.

JUAN HERNANDEZ V. CITY OF PHOENIX

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-16007

Opinion Date: August 5, 2022

Judge: Watford

Areas of Law: Civil Rights, Constitutional Law

The City of Phoenix’s Police Department concluded that a Sergeant with the Department violated a Department policy by posting content to his personal Facebook profile that denigrated Muslims and Islam. When the Department took steps to discipline the Sergeant, he sued, alleging that the Department was retaliating against him for exercising his First Amendment right to freedom of speech.

The Ninth Circuit affirmed in part and reversed in part the district court’s dismissal of Plaintiff’s action. In analyzing the content, form and context of the Sergeant’s posts, the court concluded that the posts qualified as speech on matters of public concern. While it was true that each of the Sergeant’s posts expressed hostility toward, and sought to denigrate or mock, major religious faith and its adherents, the Supreme Court has made clear that the inappropriate or controversial character of a statement is irrelevant to the question of whether it deals with a matter of public concern.

The court, therefore, reversed the district court’s dismissal of Plaintiffs’ First Amendment retaliation claim and his related claim under the Arizona Constitution. The court held that the district court properly rejected Plaintiffs’ facial overbreadth challenge to certain provisions of the Department’s social media policy, except as to the clauses prohibiting social media activity that (1) would cause embarrassment to or discredit the Department, or (2) divulge any information gained while in the performance of official duties, as set forth in section 3.27.9B.(7) of the policy. The court affirmed the district court’s rejection of Plaintiffs’ facial vagueness challenge to the same provisions discussed above and their municipal liability claim.

MOHAMED SABRA V. MARICOPA COUNTY COMMUNITY COLL

Court: US Court of Appeals for the Ninth Circuit

Docket: 20-16774

Opinion Date: August 10, 2022

Judge: Clifton

Areas of Law: Civil Rights, Constitutional Law

Plaintiffs brought this action against Defendant and the Maricopa County Community College District (the “College District”). Plaintiffs allege that a module on Islamic terrorism within a course in world politics taught by Defendant at Scottsdale Community College (the “College”) violated Plaintiffs’ constitutional rights under the Establishment Clause and Free Exercise Clause of the First Amendment. Plaintiffs also allege that Defendant’s disparaging treatment of Islam was part of an official policy embraced by the College District. The district court granted Defendants’ motion to dismiss the Complaint, and the Plaintiffs appealed.

The Ninth Circuit affirmed the district court’s dismissal of the action. The court held that Plaintiffs could not sustain a claim for municipal liability against the College District. First, Plaintiffs abandoned their municipal liability claim on appeal by failing to address it in their Reply Brief even after the College District raised the argument in its Answering Brief on appeal.

But even on the merits, the claim could not survive dismissal under Fed. R. Civ. P. 12(b)(6). Although Plaintiffs alleged that Defendant has taught his World Politics class for 24 years, they did not allege that the course in other years contained the same content that offended Plaintiff, or that Defendant’s views or teaching methods were so persistent and widespread as to constitute part of the College District’s standard operating procedure. Further, the court held that Defendant was entitled to qualified immunity with respect to Plaintiffs’ Establishment Clause and Free Exercise claims.

NATHAN PIERCE V. CHRISTI JACOBSEN

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-35173

Opinion Date: August 10, 2022

Judge: Tunheim

Areas of Law: Civil Rights, Constitutional Law

Plaintiffs—a collection of organizations and individuals interested in petitioning in Montana—alleged that both of these restrictions violated their speech and association rights under the First Amendment. In upholding both restrictions, the district court held that strict scrutiny did not apply because plaintiffs failed to demonstrate that either restriction imposed a severe burden on their rights. It went on to find that both restrictions sufficiently furthered Montana’s important regulatory interest to survive less exacting review.

The Ninth Circuit affirmed in part and reversed in part the district court’s summary judgment for Defendants. The court reversed the district court’s holding with regards to the residency requirement because it (1) imposed a severe burden on the exercise of First Amendment rights and therefore was subject to strict scrutiny, and (2) was not narrowly tailored to further Montana’s compelling interest.

The court affirmed the district court’s holding with regards to the pay-per-signature restriction because it concluded that (1) on the basis of the record produced here, plaintiffs had not demonstrated that the pay-per-signature ban imposed a severe burden on First Amendment rights and therefore less exacting review applied; and (2) the state had established that an important regulatory interest was furthered by this restriction.

RICHARD MONTIEL V. KEVIN CHAPPELL

Court: US Court of Appeals for the Ninth Circuit

Docket: 15-99000

Opinion Date: August 5, 2022

Judge: Friedland

Areas of Law: Constitutional Law, Criminal Law

The California Supreme Court affirmed Petitioner’s conviction and sentence on direct appeal and later summarily rejected “on the merits” Petitioner’s state habeas petition. Petitioner argued primarily that he was denied his Sixth Amendment right to effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

Petitioner argued that the Ninth Circuit should review his Strickland claims de novo, because the California Supreme Court’s four-sentence denial of his claims “on the merits,” without issuing an order to show cause, signifies that the court concluded only that his petition did not state a prima facie case for relief such that there is no “adjudication on the merits” to which this court owes deference under the Antiterrorism and Effective Death Penalty Act (AEDPA).

The Ninth Circuit disagreed, citing Cullen v. Pinholster, 563 U.S. 170 (2011), in which the Supreme Court afforded AEDPA deference to the California Supreme Court’s summary denial of a habeas petition raising a Strickland claim. The court, therefore, applied the deferential AEDPA standard, asking whether the denial of Petitioner’s claims “involved an unreasonable application of” Strickland.

The court held, however, under AEDPA's highly deferential standard of review, that the California Supreme Court could reasonably have concluded that Petitioner’s claim fails under the second prong of Strickland. The court wrote that comparing the mitigation evidence that was offered with what would have been offered but for Petitioner’s trial attorney’s alleged errors, the state court could reasonably have decided that there was not a substantial likelihood that the jury would have returned a different sentence if the attorney had not performed deficiently.

USA V. JOHNNY MAGDALENO

Court: US Court of Appeals for the Ninth Circuit

Docket: 20-10390

Opinion Date: August 11, 2022

Judge: Clifton

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to one count of racketeering conspiracy and was sentenced to 360 months in prison. At sentencing, the district court imposed a special condition of supervised release set forth in the parties’ plea agreement that prohibited Defendant from associating with any member of the Norteño or Nuestra Familia gangs. On appeal, Defendant argues that this condition violates his fundamental right to familial association because it does not exclude his siblings who might be gang members.

The Ninth Circuit affirmed the district court’s imposition of the special condition. The court The declined the Government’s invitation to dismiss Defendant’s appeal based on the invited error doctrine. The panel wrote that the record does not suggest that Defendant either caused the alleged error intentionally or abandoned a known right. The court therefore treated the right as forfeited, as opposed to waived, and reviewed the district court’s decision to impose the gang condition for plain error.

The court wrote that Defendant’s relationship with a sibling or half sibling does not inherently constitute an “intimate relationship” with a “life partner,” child, or fiancée, and thus does not give rise to a “particularly significant liberty interest” that would require the district court to undertake additional procedural steps at sentencing.

The court rejected Defendant’s contention that the condition is substantively unreasonable. The panel explained that given Defendant’s history of coordinating and executing violent gang attacks, a prohibition on gang association does not constitute an unreasonable deprivation of liberty.

Mitchell v. Roberts

Court: US Court of Appeals for the Tenth Circuit

Docket: 21-4055

Opinion Date: August 9, 2022

Judge: Rossman

Areas of Law: Civil Procedure, Constitutional Law, Personal Injury

In 1981, defendant-appellee Richard Roberts was a federal prosecutor preparing for a murder trial. Appellant Terry Mitchell, then a teenager, was a key trial witness for the prosecution. Thirty-five years later, Mitchell sued Roberts alleging he sexually assaulted her through the criminal trial proceedings. Roberts moved to dismiss the complaint with prejudice, contending Mitchells’ claims were time barred. Mitchell conceded the claims had expired under the original statute of limitations, but claimed Utah’s Revival Statute made them timely. At Mitchell’s request, the magistrate judge certified questions to the Utah Supreme Court concerning the validity of the Revival Statute. The Utah Supreme Court issued a detailed opinion concluding the Utah legislature was prohibited from retroactively reviving time-barred claims in a manner that deprived defendants like Roberts of a vested statute of limitations defense. Based on the Utah Supreme Court’s conclusion that the Revival Statute was unconstitutional, Roberts again moved to dismiss with prejudice. Mitchell sought voluntary dismissal without prejudice under Federal Rule of Civil Procedure 41(a)(2). According to Mitchell, the Utah Supreme Court had not foreclosed the possibility that the Utah Constitution would be amended to permit legislative revival of time-barred child sexual abuse claims, and on that basis, she proposed a curative condition that would allow her to sue Roberts if such an amendment came to pass. The magistrate judge rejected Mitchell’s argument and dismissed her complaint with prejudice.
She appealed, but finding no reversible error, the Tenth Circuit affirmed the magistrate judge’s decision.

Peck v. McCann, et al.

Court: US Court of Appeals for the Tenth Circuit

Docket: 21-1125

Opinion Date: August 9, 2022

Judge: Per Curiam

Areas of Law: Civil Procedure, Constitutional Law, Family Law

Plaintiff-Appellee and attorney Jessica Peck represented parents and other family members in child abuse cases in Colorado juvenile courts. She brought suit against Defendant-Appellants, Colorado Executive Director of Health Services Michelle Barnes and Second Judicial District Attorney Beth McCann, to challenge the constitutionality of § 19-1-307 of the Colorado Children’s Code Records and Information Act (“Children’s Code”). Peck alleged Section 307 violated her First Amendment rights by restricting her disclosures and thereby chilling her speech on these matters. The district court agreed and struck down both of Section 307’s penalty provisions. The Tenth Circuit thought Section 307(1) and Section 307(4) had different scopes due to their distinct language and legislative histories. As a result, the Court found Peck could challenge Section 307(4)’s penalty as unconstitutional, but has not properly challenged Section 307(1). The Court thus reversed the district court’s order insofar as it invalidated Section 307(1).

United States v. Cortez-Nieto

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-3184

Opinion Date: August 5, 2022

Judge: Harris L. Hartz

Areas of Law: Constitutional Law, Criminal Law

Defendants Orlando Cortez-Nieto and Jesus Cervantes-Aguilar were convicted by a jury of four methamphetamine offenses committed within 1,000 feet of a playground. After their convictions Defendants moved for judgment of acquittal. The district court granted the motions in part, setting aside the convictions on the ground that there was insufficient evidence that any of the offenses of conviction occurred within 1,000 feet of a playground, but entering judgments of conviction on lesser-included offenses (the four offenses without the proximity element). In their consolidated appeal, Defendants argued: (1) that a jury instruction stating that the jury should not consider the guilt of any persons other than Defendants improperly precluded the jury from considering that two government witnesses were motivated to lie about Defendants to reduce or eliminate their own guilt, and the prosecutor improperly magnified this error by explicitly arguing that the jurors could not consider the witnesses’ guilt in assessing their credibility; (2) the district court should not have imposed judgments of conviction on the lesser-included offenses after determining that the original charges had not been proved because the jury had not been instructed on the lesser-included offenses; and (3) remand was necessary to correct a clerical error in the judgment forms. The Tenth Circuit determined only that the clerical error warranted correction. The Court affirmed the district court in all other respects.

United States v. Johnson

Court: US Court of Appeals for the Tenth Circuit

Docket: 21-2058

Opinion Date: August 9, 2022

Judge: Moritz

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Nathaniel Johnson was arrested on a Greyhound bus after an encounter with Special Agent Jarrell Perry. Law enforcement found two packages of methamphetamine in Johnson’s backpack, and Johnson gave several incriminating statements. The district court denied Johnson’s motion to suppress the physical evidence and his statements. Johnson appealed. The Tenth Circuit affirmed in part and reversed in part. The Court determined Perry had probable cause to arrest Johnson and to seize the bundle of clothing and backpack. But while seizing the items from the bus, Perry conducted an illegal search of the bundle by reaching inside Johnson’s open backpack and feeling the bundle in an exploratory manner. Then later, at the DEA office, still without a warrant, Perry conducted a second illegal search of the backpack and the bundle. And contrary to the government’s position, the plain-view exception to the warrant requirement could not apply because at neither point in time were the contents of the bundle or backpack a foregone conclusion.

United States v. McDonald

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-7052

Opinion Date: August 9, 2022

Judge: David M. Ebel

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Guy McDonald was arrested and charged for dealing methamphetamine. He pled guilty to one count of conspiracy to violate federal narcotics laws at the federal district court in Eastern Oklahoma. He received a sentence of 292 months’ imprisonment. McDonald appealed, arguing the district court erred in calculating his base offense level and in applying three sentencing enhancements to his sentence. Specifically, McDonald argued the district court improperly relied on facts alleged in his presentence investigation report given the objections he raised at the sentencing hearing. Finding no reversible error, the Tenth Circuit affirmed.

S.S. v. Cobb County School District

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-11048

Opinion Date: August 5, 2022

Judge: LUCK

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

S.S. was a student in the Cobb County School District. S.S.’s parents challenged the adequacy of the individualized educational plans. S.S.’s parents fought the school district for two years and eventually filed an administrative complaint requesting a due process hearing under the Act with the Georgia Office of State Administrative Hearings. In the administrative complaint, S.S. alleged that the school district failed to provide her with a free and appropriate public education under the Act. The school district moved for summary determination of the administrative complaint. S.S. challenged the administrative law judge’s decision in the Northern District of Georgia.

The district court denied the school district’s motion for summary judgment and remanded to the administrative law judge for a due process hearing. The school district appealed the district court’s remand order.
 
The DC Circuit concluded that remand orders from district courts to administrative agencies for further proceedings under the Act are not final and appealable under section 1291. And because the district court’s remand order was not final and appealable, the court wrote it lacks appellate jurisdiction to review it. Accordingly, the court dismissed the school district’s appeal.

Committee on Ways and Means, United States House of Representatives v. TREA

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 21-5289

Opinion Date: August 9, 2022

Judge: SENTELLE

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

Chairman of the Committee on Ways and Means (“the Chairman”) invoked Section 6103(f)(1) in a writing to the Commissioner of Internal Revenue (“the 2019 Request”). The Chairman requested the federal income tax returns of then-President Donald J. Trump and that of his related companies and organizations (collectively “the Trump Parties”). The Department of the Treasury responded that it did not intend to comply with the 2019 Request because it was not supported by a legitimate legislative purpose. Later the Treasury informed the district court and the Trump Parties that it intended to comply with the 2021 Request and provide the Committee with the requested materials. The Trump Parties alleged that Section 6103(f)(1) is facially unconstitutional and that compliance with the Request would be a violation of the First Amendment.

The DC Circuit affirmed. The court explained that the 2021 Request seeks information that may inform the United States House of Representatives Committee on Ways and Means as to the efficacy of the Presidential Audit Program, and therefore, was made in furtherance of a subject upon which legislation could be had. Further, the Request did not violate the separation of powers principles under any of the potentially applicable tests primarily because the burden on the Executive Branch and the Trump Parties is relatively minor. Finally, Section 6103(f)(1) is not facially unconstitutional because there are many circumstances under which it can be validly applied, and Treasury’s decision to comply with the Request did not violate the Trump Parties’ First Amendment rights.

Damien Guedes v. ATF

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 21-5045

Opinion Date: August 9, 2022

Judge: WILKINS

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

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF” or the “Bureau”) promulgated a rule classifying “bump stocks” as machine guns. The Bureau’s new rule instructed individuals with bump stocks to either destroy them, abandon them at the nearest ATF facility, or face criminal penalties. Plaintiffs initially moved for a preliminary injunction to stop the rule from taking effect, which the District Court denied, and a panel of this Court affirmed. At the merits stage, the District Court again rejected Plaintiffs’ challenges to the rule under the Chevron framework. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

The central question on appeal was whether the Bureau had the statutory authority to interpret “machine gun” to include bump stocks and the DC Circuit affirmed. In employing the traditional tools of statutory interpretation, the court found that the disputed rule is consistent with the best interpretation of “machine gun” under the governing statutes. The court explained that it joins other circuits in concluding that these devices, which enable such prodigious rapid-fire capability upon a pull of the trigger, fall within the definition of “machine gun” in the National Firearms Act and Gun Control Act.

USA v. Charles Morgan, Jr.

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 18-3045

Opinion Date: August 5, 2022

Judge: SRINIVASAN

Areas of Law: Constitutional Law, Criminal Law

Appellant was indicted for transportation of a minor with intent to engage in criminal sexual activity, attempted production of child pornography, and commission of a felony involving a minor by a person required to register as a sex offender. After a bifurcated jury and bench trial, Appellant was convicted on all counts.
 
On appeal, Appellant brings three challenges to his convictions. First, he contends that the district court abused its discretion by admitting the government’s expert testimony concerning the approximate locations of Appellant’s and the transported minor’s cell phones on the night of their meeting. Second, Appellant argues that the government should have been required to prove not just that he transported a minor to engage in sexual activity, but that he knew she was underage. Third, Appellant challenges the constitutionality of the Act that required him to register as a sex offender.
 
The DC Circuit affirmed Appellant’s convictions. The court held that the district court, in this case, did not abuse its discretion in admitting the expert’s testimony under Rule 702. The court explained that the district court justifiably concluded that concerns about the specific distances the expert drove should be considered by the jury in assessing the weight of the expert’s testimony and not by the court in its threshold admissibility determination. Further, the court explained that in light of the probative value of the expert’s testimony and the deference the Circuit Court affords district courts in making determinations under Rule 403, it cannot say that the district court abused its discretion in allowing the jury to hear from the expert.

Mills v. Arizona Bd. of Technical Registration

Court: Arizona Supreme Court

Docket: CV-21-0203-PR

Opinion Date: August 10, 2022

Judge: Ann Timmer

Areas of Law: Constitutional Law, Professional Malpractice & Ethics

The Supreme Court affirmed in part and reversed in part the judgment of the superior court dismissing this complaint seeking declaratory and injunctive relief, holding that, for the most part, the doctrines of exhaustion of administrative remedies, ripeness, and standing did not prohibit Plaintiff from proceeding with his lawsuit.

Plaintiff was an engineer who designed, tested, and built electronic circuits from consumer products through his consulting firm. At issue in this dispute with the Arizona Board of Technical Registration was whether Plaintiff's work required registration with the Board. Plaintiff brought this action under the Uniform Declaratory Judgments Act, Ariz. Rev. Stat. 12-1831 to -1846, challenging the constitutionality of statutes prohibiting people and firms from engaging in "engineering practices unless registered with the Board." The superior court dismissed the complaint on two bases. The Supreme Court reversed in part, holding (1) three causes of action in Plaintiff's complaint were justiciable, and the superior court erred by dismissing them s nonjusticiable; and (2) the court correctly dismissed the fourth cause of action as unripe.

Zolly v. City of Oakland

Court: Supreme Court of California

Docket: S262634

Opinion Date: August 11, 2022

Judge: Goodwin Liu

Areas of Law: Constitutional Law, Tax Law

The Supreme Court affirmed the judgment of the court of appeal in this dispute , holding that Oakland did not show on demurrer that its challenged fees at issue in this case were exempt from the voter approval requirements set forth in article XIII C of the California Constitution.

In 2012, the City of Oakland approved two contract granting private waste haulers the right to operate a public utility for waste collection services. As consideration for the "special franchise right," the waste haulers agreed to pay certain fees to Oakland. In question was how such fees should be treated under article XIII C, which sets forth voter approval requirements that apply to taxes imposed by local government. The court of appeals concluded that the fees were not exempt from the requirements of section XIII C. The Supreme Court affirmed, holding that Oakland failed to show, as a matter of law, that article XIII C applied to the franchise fees at issue in this case.

Alfaro v. Waterhouse Management Corp.

Court: California Courts of Appeal

Docket: B313842(Second Appellate District)

Opinion Date: August 4, 2022

Judge: YEGAN

Areas of Law: Constitutional Law

Appellant Waterhouse Management Corp. is the property manager of Nomad Village Mobile Home Park (the Park), a 150- space mobile home park in Santa Barbara. Appellant Lazy Landing MHP, LLC, owns the long-term ground lease for the Park. Respondents are current and former lessees of mobile homes in the Park. They initially sued Appellants for violations of the Mobilehome Residency Law (Civ. Code, Section 798 et seq.) and the Mobilehome Parks Act (Health & Saf. Code, Section 18200 et seq.), alleging failure to properly maintain the Park. While Respondents’ lawsuit (the original lawsuit) was pending, Appellants filed a malicious prosecution action against Respondents.
 
One of the mentioned acts was appellants’ filing of the malicious prosecution action. Seizing on this reference to protected activity, appellants filed a special motion to strike respondents’ entire eleventh cause of action as a SLAPP (Strategic Lawsuit Against Public Participation).
 
The Second Appellate District affirmed the trial court’s order denying Appellants’ special to strike the eleventh cause of action and imposing sanctions of $8,750 for making a frivolous motion. The court explained these allegations “merely provide context, without supporting a claim for recovery . . ..” Respondents’ claim for recovery arises out of their allegations of retaliation in violation of Civil Code section 1942.5, subdivision (d), which does not apply to a lessor’s retaliatory malicious prosecution action against a lessee.

California v. Vang

Court: California Courts of Appeal

Docket: C090365(Third Appellate District)

Opinion Date: August 5, 2022

Judge: Krause

Areas of Law: Constitutional Law, Criminal Law, Family Law

Defendant Jerry Vang was convicted by jury for multiple crimes against two different victims, including: kidnapping first degree felony murder with a special circumstance, infliction of corporal injury on a cohabitant, making criminal threats with firearm allegations, and firearms possession by a felon. Defendant had a long history of domestic violence, had an argument with his wife. After she fled in her car, defendant followed, eventually forced her to stop, and coerced her (through force or fear) into his vehicle. As defendant was driving away, his wife opened the door and jumped from the moving vehicle, resulting in her death. Defendant argued the trial court erred by permitting the prosecution to proceed on a legally inadequate theory of felony murder. He contends that under the current felony-murder rule, as amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.), he could be liable for felony murder only if he was proven to be the “actual killer.” Because the evidence showed that his wife jumped from the vehicle of her own volition, defendant contends he was not the actual killer and therefore his conviction for first degree felony murder with a special circumstance rested on a legally invalid theory. To this, the Court of Appeal agreed, and reversed that conviction as to first degree felony murder. The judgment and convictions were affirmed in all other respects.

Needham v. Super. Ct.

Court: California Courts of Appeal

Docket: G060670(Fourth Appellate District)

Opinion Date: August 8, 2022

Judge: Marks

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

The State petitioned to commit Nicholas Needham California under the Sexually Violent Predator Act (SVPA). Preparing for trial on the petition, the district attorney retained a psychological expert to evaluate Needham and testify at trial that he qualified as an SVP. Needham moved to exclude the expert’s testimony at trial, but the trial court denied his motion.
Needham appealed, seeking a declaration that the SVPA did not permit the State to call a privately retained expert to testify at trial. The Court of Appeal granted relief: “[G]iven the obvious dangers to essential liberty interests inherent in the SVPA, it must be carefully implemented and applied only where there is a high degree of certainty that it is warranted.” The Court found the statutory scheme deliberately limited when an SVP petition could be filed and brought to trial, as well as the evidence available to the prosecution. In light of this system, the Court concluded the expert-witness provisions of the Civil Discovery Act did not apply and that the State had no right to retain an expert witness to testify at trial.

State v. Bowden

Court: Connecticut Supreme Court

Docket: SC20488

Opinion Date: August 9, 2022

Judge: Kahn

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

The Supreme Court affirmed the judgment of the trial court convicting Defendant of felony murder, robbery in the first degree, and other crimes, holding that any error in the trial court's failure to suppress evidence obtained from a search warrant was harmless.

On appeal, Defendant challenged the trial court's denial of his motion to suppress evidence obtained from a search of his cell phone, arguing that the application for the warrant authorizing the search lacked a particular description of the items to be seized and that the affidavit supporting the application failed to establish probable cause. The Supreme Court affirmed, holding that the State met its burden of showing that any error in the denial of Defendant's motion to suppress was harmless beyond a reasonable doubt.

State v. Samuolis

Court: Connecticut Supreme Court

Docket: SC20299

Opinion Date: August 9, 2022

Judge: Keller

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

The Supreme Court affirmed Defendant's convictions of murder, assault in the first degree by means of the discharge of a firearm, and attempt to commit assault in the first degree by means of the discharge of a firearm, holding that there was no violation of Defendant's Fourth Amendment rights in this case.

On appeal, Defendant argued that the trial court erred in denying his motion to suppress evidence seized from his father on the grounds that the police officers' warrantless entry into the residence home under the emergency exception to the Fourth Amendment warrant requirement was justified. Alternatively, the court deterred that, even if the initial entry was unlawful, Defendant's shooting of the victim sufficiently attenuated that unlawful act from the subsequent lawful search and seizure of the evidence at issue. The Supreme Court affirmed, holding that (1) under the totality of the circumstances, it was objectively reasonable for the officers to conclude that there was an emergency justifying their initial entry into the residence; and (2) in light of this conclusion, the subsequent entries were similarly justified.

State v. Smith

Court: Connecticut Supreme Court

Docket: SC20600

Opinion Date: August 9, 2022

Judge: Kahn

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

The Supreme Court affirmed in part and reversed in part the judgment of the trial convicting Defendant of various crimes arising from five criminal cases, which included first degree robbery, second degree arson, and attempt to commit murder, holding that the trial court erred in denying Defendant's motion to suppress.

At issue on appeal was the trial court's denial of Defendant's motion to suppress evidence discovered during a search of his cell phone and evidence obtained from his cell phone service provider. Specifically in question was whether the warrants authorizing those searches were supported by probable cause and whether they particularly described the place to be searched and the things to be seized. The Supreme Court reversed in part, holding (1) the trial court erred in denying Defendant's motion to suppress the information obtained from the execution of both warrants; and (2) this error was harmless with respect to some, but not all, of the crimes alleged in the indictment.

Bridges v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0773

Opinion Date: August 9, 2022

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

Appellant Arleshia Bridges appealed her convictions for malice murder and related crimes in connection with the 2010 shooting death of Anthony Rankins, Jr. On appeal, Bridges argued the trial court erred in denying her motion for a new trial based on the general grounds and in striking three prospective jurors. for cause. After review of the trial court record, the Georgia Supreme Court affirmed.

Carter v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0432

Opinion Date: August 9, 2022

Judge: Bethel

Areas of Law: Constitutional Law, Criminal Law

Woodrow Carter was convicted in 2016 for the death of James Mills. On appeal, Carter contended the evidence presented at trial was insufficient to support his conviction, and the trial court erred in instructing the jury. Finding no reversible error, the Georgia Supreme Court affirmed Carter’s conviction.

Dugar v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0707

Opinion Date: August 9, 2022

Judge: Boggs

Areas of Law: Constitutional Law, Criminal Law

Rita Dugar was convicted for shooting Jon Townley at her ex-boyfriend’s home. She claimed she attempted to fire a warning shot because the boyfriend and Townley had been fighting. On appeal, Dugar raised four enumerations of error, all relating to her waiver of a jury trial. But finding no error, the Georgia Supreme Court affirmed Dugar’s conviction.

Ellington v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0477

Opinion Date: August 9, 2022

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

Vincent Ellington was convicted by jury for the 2016 shooting death of Jeremy Fulton. On appeal, Ellington challenged the sufficiency of the evidence supporting his conviction, and argued the trial court erred when it limited his cross-examination of one of the State’s witnesses. Finding only that the Ellington’s conviction for possession of a firearm during the commission of a felony should have merged for sentencing purposes into his conviction for possession of a firearm by a convicted felon during the commission of a felony, the Georgia Supreme Court remanded this case for recalculation of Ellington’s sentence. His convictions were otherwise affirmed.

Harris v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0675

Opinion Date: August 9, 2022

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Juan Harris was convicted by jury of murder and related crimes in connection with the 2001 death of Tony Morris. On appeal, Harris argued the trial court should have granted him a continuance to call missing witnesses, and that his trial counsel was ineffective for reasons relating to witness preparations and for withdrawing requests for jury charges. Finding no reversible error, the Georgia Supreme Court affirmed.

Jones v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0815

Opinion Date: August 9, 2022

Judge: Colvin

Areas of Law: Constitutional Law, Criminal Law

Reginald Jones appealed his convictions for malice murder and related crimes in connection with the 2017 death of his girlfriend Faith Bittinger and her unborn child. On appeal. Jones argued: (1) the trial evidence was insufficient to establish he killed Bittinger with malice aforethought; and (2) trial counsel rendered ineffective assistance for calling Jones’ neighbor as a character witness, because in doing so, the State was then permitted to introduce prejudicial character witness. Finding no reversible error, the Georgia Supreme Court affirmed.

Mathews v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0670

Opinion Date: August 9, 2022

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Following a joint trial with co-defendant Shelton Jackson, Jarvis Mathews was convicted of felony murder, aggravated assault, and possessing a firearm during the commission of a felony for the 2001 fatal shooting of Grant Reynolds, and the non-fatal shootings of Larentae and Robert Mumphery. Finding no reversible error in the trial court judgment, the Georgia Supreme Court affirmed.

Moore v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0583

Opinion Date: August 9, 2022

Judge: Colvin

Areas of Law: Constitutional Law, Criminal Law

Nikita Moore appealed her conviction for malice murder arising out of the 2010 death of her two-year-old son, Ma’Kel Moore-Tompkins. On appeal, Moore claimed the circumstantial evidence presented at trial was insufficient to support her murder conviction because it failed to exclude every reasonable hypothesis other than her guilt. Finding no reversible error, the Georgia Supreme Court affirmed Moore’s conviction.

Payne v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0469

Opinion Date: August 9, 2022

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Lorenzo Payne appealed his conviction for the 2005 shooting death of Quartez Armour. Armour was shot for allegedly cheating Payne in a putative drug deal. Payne argued the trial court erred in instructing the jury, and that his trial counsel was ineffective. Finding no errors, the Georgia Supreme Court affirmed Payne’s conviction.

Phillips v. Jackson, et al.

Court: Supreme Court of Georgia

Docket: S22A0503

Opinion Date: August 9, 2022

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

A municipal court judge believed Carey Phillips’s traffic citation gave rise to “quasi-bond” conditions that it could — and did — modify in order to restrict Phillips’s driving privileges. Phillips disagreed, but instead of appealing the municipal court judge’s order, he sought pretrial habeas relief against the municipal court judge and the City of Atlanta Solicitor. Counsel for the respondents did not attempt to defend the judge’s order on the merits, arguing only that Phillips’s habeas petition was procedurally improper on several grounds. The habeas court denied relief, partly on the ground that Phillips had an adequate remedy at law and so could not seek habeas. To this the Georgia Supreme Court agreed and affirmed, though identifying a different legal remedy than did the habeas court.

Ruff v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0709

Opinion Date: August 9, 2022

Judge: Colvin

Areas of Law: Constitutional Law, Criminal Law

Tahj Ruff was convicted of felony murder and related crimes in connection with the shooting death of Lynwood Williams. Ruff appealed, but the Georgia Supreme Court affirmed Ruff’s convictions. The matter was remanded to the trial court, however, to correct the calculation of Ruff’s sentence.

Walker v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0737

Opinion Date: August 9, 2022

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

Shaun Walker was convicted by jury of malice murder and related crimes in connection with the 2017 shooting death of Antonio Ferguson. On appeal, Walker argued the evidence was insufficient to support his convictions. Finding no reversible error, the Georgia Supreme Court affirmed Walker’s convictions.

Wright v. Georgia

Court: Supreme Court of Georgia

Docket: S22A0588

Opinion Date: August 9, 2022

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

Shakur Wright pleaded guilty to the malice murder of Benjamin Thompson and to other related offenses. Ten days after sentencing, Wright, through new counsel, filed a motion to withdraw his guilty plea. The motion was timely filed in the same term of court as his conviction. Wright argued that his plea counsel was ineffective for allegedly failing to inform him before sentencing of the more stringent “manifest injustice” standard for withdrawing a guilty plea after sentencing. After the court denied Wright’s motion, Wright appealed, arguing that his plea counsel’s alleged ineffective assistance resulted in an “unnecessary burden” on him. Finding no abuse of discretion in the superior court’s ruling, the Georgia Supreme Court affirmed its order denying Wright’s motion to withdraw his guilty plea.

Idaho v. Blancas

Court: Idaho Supreme Court - Criminal

Docket: 48357

Opinion Date: August 11, 2022

Judge: Brody

Areas of Law: Constitutional Law, Criminal Law

Jesus Blancas was stopped by Idaho State Police Sergeant Chris Elverud. Elverud suspected Blancas of driving under the influence and administered four breath tests, but only one produced a valid result. That test indicated that Blancas’ blood alcohol content (BAC) was nearly three times the legal limit. Elverud then took Blancas to a hospital to collect a blood sample for testing. Blancas refused to consent to the blood draw, and Elverud attempted to reach an on-call magistrate judge to obtain a warrant. After failing to reach the on-call magistrate judge, Elverud instructed hospital staff to draw Blancas’ blood under the exigent circumstances exception to the warrant requirement. The Idaho Supreme Court concluded that warrantless blood draw violated Blancas’ Fourth Amendment rights because the State failed to prove there was insufficient time to obtain a warrant, and therefor, failed to prove exigent circumstances justified the blood draw.

State v. White

Court: Kansas Supreme Court

Docket: 122039

Opinion Date: August 5, 2022

Judge: Stegall

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

The Supreme Court affirmed Defendant's conviction of aggravated indecent liberties with a child, holding that Defendant was not entitled to relief on any of his claims of error.

Specifically, the Supreme Court held (1) the district court's exclusion of polygraph evidence did not violate Defendant's constitutional right to present a complete defense; (2) the district court did not abuse its discretion by allowing the State to amend the information; (3) although the admission of Defendant's videotaped confession to a previous offense may have been inflammatory, any error was harmless; and (4) cumulative error did not deny Defendant a fair trial.

Commonwealth v. Grier

Court: Massachusetts Supreme Judicial Court

Docket: SJC-11386

Opinion Date: August 9, 2022

Judge: Kafker

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

The Supreme Judicial Court affirmed Defendant's convictions of murder in the first degree and unlawful possession of a firearm, holding that Defendant's arguments on appeal were without merit.

Specifically, the Supreme Judicial Court held (1) there was no abuse of discretion in the trial judge's determination that the defense had not established a prima facie case of racial discrimination in jury selection; (2) there was no prejudicial error in the jury instructions; (3) the judge did not abuse her discretion in excusing a juror based on decades-old charges; (4) the prosecutor did not commit misconduct in this case; and (5) there was no error or other reason warranting relief under Mass. Gen. Laws ch. 278, 33E.

Johnson v. Icet

Court: Supreme Court of Missouri

Docket: SC99441

Opinion Date: August 9, 2022

Judge: Mary R. Russell

Areas of Law: Constitutional Law, Tax Law

The Supreme Court vacated the judgment of the circuit court that the solar energy system owned by Springfield Solar 1, LLC was tax-exempt as a "solar energy system not held for resale" pursuant to Mo. Rev. Stat. 137.100(10), holding that the statute is unconstitutional because the Missouri Constitution does not grant the legislature the power to exempt solar energy systems not help for resale from taxation.

Springfield Solar appealed the Assessor for Greene County's 2017 assessment of its solar energy system (the equipment), arguing that the equipment was tax-exempt under section 137.100(10), which states that solar energy systems not help for resale are exempt from taxation for state, county, and local purposes. The Commission concluded that the equipment was exempt from taxation under section 137.100(10). The Assessor filed a petition for judicial review, arguing that the Commission's decision was unlawful. The circuit court entered judgment in favor of Springfield Solar, finding that the statute was constitutional. The Supreme Court reversed, holding that the tax exemption created by section 137.100(10) is unconstitutional.

Planned Parenthood of Montana v. State

Court: Montana Supreme Court

Citation: 2022 MT 157

Opinion Date: August 9, 2022

Judge: Beth Baker

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

The Supreme Court affirmed the district court's grant of a preliminary injunction temporarily enjoining the implementation of three laws the Legislature enacted in 2021 that regulate or restrict abortion services, holding that there was no error of law or manifest abuse of discretion.

In 2021, the Montana Legislature passed into law and the governor signed into law bills regulating or restricting abortions services and providing for various criminal penalties and civil remedies. The district court granted a preliminary injunction, finding that Plaintiffs made a prima facie showing that the challenged laws violated their rights under the Montana Constitution and determining that Plaintiffs would suffer irreparable injury if the challenged laws took effect. The Supreme Court affirmed, holding that either ground on which the district court granted a preliminary injunction would have been sufficient to justify relief.

State v. Mathis

Court: Montana Supreme Court

Citation: 2022 MT 156

Opinion Date: August 9, 2022

Judge: Laurie McKinnon

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

The Supreme Court affirmed the judgment of the district court convicting Appellant of incest for the sexual abuse of T.N. and sentencing her to 100 years in prison, holding that there was no error or abuse of proceedings in the proceedings below.

Specifically, the Supreme Court held (1) the district court did not violate Defendant's "right to access witnesses" in denying her motion to to conduct pretrial interviews with T.N. and J.M.; (2) the State's failure to lodge with the district court forensic interviews from a different case did not violate Defendant's right to a fair trial, and Defendant was not entitled to a new trial on this ground; and (3) based on the totality of the evidence, this Court declines to employ the doctrine of plain error to review Defendant's claim that the district court should have given a specific unanimity instruction.

Oregon v. Hershey

Court: Oregon Supreme Court

Docket: S067825

Opinion Date: August 11, 2022

Judge: Duncan

Areas of Law: Animal / Dog Law, Constitutional Law, Criminal Law

In September 2017, Klamath County Animal Control impounded 22 dogs, three horses, and seven chickens from Petitioner Kenneth Hershey’s property. The state subsequently charged Hershey with three counts of second-degree animal neglect, one count for each type of animal. under ORS 167.347. As relevant here, that statute provides that, when an animal is being held by an animal care agency pending the outcome of a criminal action for mistreatment of the animal, a district attorney, acting on behalf of the animal care agency, may file a petition in the criminal action asking the circuit court to order the forfeiture of the animal unless the defendant in the criminal action (or another person with a claim to the animal) pays a security deposit or bond to cover the agency’s costs of caring for the animal. The question presented for the Oregon Supreme Court by this case was whether, under Article I, section 17, of the Oregon Constitution, a party has a right to a jury trial in a proceeding brought under ORS 167.347.
The circuit court ruled that a party did not have such a right. The Court of Appeals affirmed, in a divided opinion. The Supreme Court concurred with the lower court decisions and affirmed.

PA Enviro Defense Fdn, Aplt. v. Commonwealth

Court: Supreme Court of Pennsylvania

Docket: 65 MAP 2020

Opinion Date: August 5, 2022

Judge: Max Baer

Areas of Law: Constitutional Law, Energy, Oil & Gas Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

The Pennsylvania Environmental Defense Foundation (“PEDF”) challenged for the third time, the use of proceeds from oil and gas leasing on the Commonwealth’s forest and park lands as violative of Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment. (“Section 27” or “ERA”). In previous trips before the Pennsylvania Supreme Court, PEDF challenged several 2009-2025 budgetary provisions enacted challenging the use of proceeds from oil and gas leasing on the Commonwealth’s forest and park lands as violative of Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment. (“Section 27” or “ERA”). In the first two cases, PEDF challenged several 2009-2015 budgetary provisions enacted in the wake of dramatic increases in oil and gas revenue resulting from Marcellus Shale exploration in Pennsylvania. Applying trust principles, the Pennsylvania Supreme Court held that the budgetary provisions violated Section 27 by utilizing the oil and gas revenue for non-trust purposes via transfers to the General Fund. PEDF v. Commonwealth, 161 A.3d 911 (Pa. 2017) (“PEDF II”); PEDF v. Commonwealth, 255 A.3d 289 (Pa. 2021) (“PEDF V”). The underlying case here was one for a declaratory judgment, and named the Commonwealth and Governor as parties. Here, PEDF raised numerous constitutional challenges to provisions of the General Appropriations Act of 2017 and 2018, as well as the 2017 Fiscal Code amendments, all of which were enacted after the Supreme Court’s decision in PEDF II. After review , the Supreme Court affirmed the Commonwealth Court, whilst rejecting that court;s analysis derived from PEDF III.

In re Pers. Restraint of Davis

Court: Washington Supreme Court

Docket: 98340-2

Opinion Date: August 11, 2022

Judge: Barbara Madsen

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

Petitioner Antoine Davis was 21 when he was convicted of first degree murder and second degree attempted murder. He received a standard range sentence of 767 months. Davis filed this personal restraint petition (PRP) more than one year after his judgment and sentence finalized, contending it was. timely for two reasons: (1) In re Personal Restraint of Monschke, 482 P.3d 276 (2021) constituted a significant, material, and retroactive change in law that applied to his de facto life sentence; and (2) recent advances in neuroscience for late-aged adolescents qualified as newly discovered evidence. The Washington Supreme Court found: (1) Monschke applied to 19- and 20-year-old defendants; and (2) Davis did not satisfy any of the statutory criteria that exempted his petition from the one-year time bar.

What Does it Mean for Other Institutions to “Defy” or “Check” the Supreme Court? Not What the Court Invites Those Institutions to Do

VIKRAM DAVID AMAR, JASON MAZZONE

Illinois Law dean Vikram David Amar and professor Jason Mazzone respond to a recent column by New York Times columnist David Leonhardt, arguing that neither of the recent high-profile developments after the Dobbs v. Jackson Women’s Health Organization decision is an example of “defying” the Court or “checking” judicial power. Dean Amar and Professor Mazzone point out that while neither the abortion vote in Kansas nor the pending federal marriage-equality proposal may fairly be characterized as “defying” or “checking,” some political reactions to Supreme Court rulings in the past arguably have involved defiance or disobedience of the Court.

Read More