R&D Master Enterprises, Inc. v. Financial Oversight & Management Bd. for P.R.

Court: US Court of Appeals for the First Circuit

Docket: 22-1342

Opinion Date: July 25, 2023

Judge: Ojetta Rogeriee Thompson

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Government Contracts

The First Circuit affirmed the judgment of the district court dismissing this lawsuit against the Financial Oversight and Management Board for Puerto Rico (FOMB) and its executive director challenging the FOMB's alleged failure to review a sale agreement on untimeliness grounds, holding that the dismissal was proper, albeit on standing grounds.

Appellants - several Puerto Rico corporations and individuals - brought this action claiming that the FOMB's alleged failure to review a $384 million loan sale agreement between the Economic Development Bank for Puerto Rico (BDE) and a private investment company violated their constitutional rights under the Fourteenth Amendment's Due Process and Equal Protection Clauses, and a statutory violation under the Puerto Rico Oversight, Management, and Economic Stability act . The district court granted the FOMB's motion to dismiss, concluding that the claims were time-barred. The First Circuit affirmed but on different grounds, holding that Appellants lacked standing because their complaint failed to allege that the FOMB's inaction caused their claimed injury.

United States of America v. Rechnitz

Court: US Court of Appeals for the Second Circuit

Docket: 20-1011

Opinion Date: July 26, 2023

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty in district court to conspiracy to commit honest services wire fraud. Defendant’s underlying criminal conduct included facilitating a bribe that resulted in the Correction Officers’ Benevolent Association (“COBA”), investing $20 million with Platinum Partners (“Platinum”), a hedge fund that ultimately declared bankruptcy amid government investigations into fraud. Following his guilty plea, Defendant’s case was reassigned to another district judge for sentencing. After his sentencing hearing but prior to his final restitution determination, Defendant moved to have his case reassigned to another district judge. His motion was premised on the recently discovered personal relationship between the district judge in his case and a defendant and a cooperating witness in the ongoing prosecutions against those involved in the Platinum fraud. The district court denied that motion and ordered Defendant to pay restitution to COBA for all of its remaining losses. On appeal, Defendant argued that his case should have been reassigned for resentencing or, in the alternative, that the district court erred in imposing restitution for all of COBA’s losses.
 
The Second Circuit remanded the case for reassignment to a different district judge and for plenary resentencing. The court held that the district judge erred in not recusing himself under Section 455(a). The judge not only had a close, near-paternal relationship with the witness, but he also advised the witness on how to proceed in his pending criminal case arising from the Platinum fraud. The judge’s relationship with the witness was sufficiently close, and his case was sufficiently related to Defendant’s case that a reasonable person would have questioned the district court’s impartiality.

Perez v. Borough of Johnsonburg

Court: US Court of Appeals for the Third Circuit

Docket: 21-2559

Opinion Date: July 21, 2023

Judge: Hardiman

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

Johnsonburg, Pennsylvania Officer Cuneo learned that the St. Marys Police Department had a search warrant to obtain a DNA sample from Perez. Cuneo knew Perez, a local with a history of illegal drug use. A log entry instructed officers who saw Perez to “hold” him and call St. Marys. Cuneo knew that Perez’s DNA had been found at the scene of a recent drug house burglary. Cuneo inferred—mistakenly—that a “body” warrant also had been issued. Later, sitting in his cruiser, Cuneo spotted Perez. The men stood on the sidewalk, having a “friendly conversation.” When Cuneo mentioned the DNA warrant and told Perez he needed to take him into custody. Perez said he was going home and sprinted away.

Cuneo pursued Perez. Perez says he was tased from behind without warning. Cuneo says he warned Perez to stop before tasing him. Perez fell forward, breaking his nose. Cuneo radioed for backup and medical assistance. Perez recovered; a physical altercation ensued. Cuneo repeatedly tased and struck Perez with his baton, then shot Perez in the back.

In a suit under 42 U.S.C. 1983, Cuneo asserted qualified immunity in defense. The court denied Cuneo’s summary judgment motion as to his use of his firearm and the unlawful seizure claim. The Third Circuit reversed in part. Cuneo did not seize Perez during their initial encounter. The court remanded so Perez’s excessive force claim for Cuneo’s use of his firearm can proceed.

Jacoby Garrett v. Harold Clarke

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-1932

Opinion Date: July 25, 2023

Judge: RUSHING

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

Plaintiff worked as a Telecommunications Network Coordinator for the Virginia Department of Corrections (VDOC). After VDOC fired Plaintiff for declining a random drug test, Garrett sued, alleging that VDOC employees violated his Fourth Amendment rights by applying VDOC’s drug testing policy to him. Defendants asserted qualified immunity and moved to dismiss. The district court denied the motion, concluding that general constitutional principles clearly establish Plaintiff’s right to be free from suspicionless drug testing.
 
The Fourth Circuit reversed. The court wrote that based on the facts as alleged in the complaint here, VDOC has some degree of government interest in drug testing Plaintiff. Whether that interest amounts to a “special need” within the meaning of Fourth Amendment jurisprudence is a debatable legal question. By baking into its analysis the absence of a sufficient special need, the district court glossed over the central question for immunity purposes: whether every reasonable official in Defendants’ position would understand that VDOC’s proffered interests were not substantial enough to override Plaintiff’s privacy interest. In view of existing law, the constitutionality of Defendants’ drug testing is simply not “beyond debate.”

US v. Casey Evans

Court: US Court of Appeals for the Fourth Circuit

Docket: 22-4307

Opinion Date: July 25, 2023

Judge: RUSHING

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of violating 18 U.S.C. Section 1855 after he started a brush fire that burned 70 acres of the Nantahala National Forest in western North Carolina. Defendant asserted his innocence, claiming he did not act with a culpable mental state because he thought he was setting the fire on his family’s land, not on federal government property. His arguments required the Fourth Circuit to address the scope of Section 1855’s mens rea requirement.
 
The Fourth Circuit vacated Defendant’s sentence and remanded. The court concluded that specific knowledge of federal ownership is not required for conviction. Therefore, the Government did not have to prove that Defendant knew he was on federal land or intended to burn federal land. But the Government did have to prove that Defendant acted willfully, and an honest mistake of fact about whether he was burning brush on his own property would be a viable defense. The district court excluded testimony about Defendant’s belief that he was on his family’s property when he set the fire, thereby preventing him from presenting his primary defense to the jury. The court explained that the jury, not the Fourth Circuit, must assess the credibility of the proffered testimony and weigh it against the Government’s evidence to make the judgment regarding whether Defendant made a factual mistake sufficient to cast a reasonable doubt on the willfulness of his actions in setting the fire.

US v. Montes Miller

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-4367

Opinion Date: July 21, 2023

Judge: AGEE

Areas of Law: Constitutional Law, Criminal Law

Defendant appeald his conviction for two counts of being a felon in possession of a firearm or ammunition under 18 U.S.C. Section 922(g)(1). He contends that his guilty plea was invalid and that his sentence was procedurally and substantively unreasonable.
 
The Fouth Circuit concluded that the district court did not plainly err when it accepted Defendant’s guilty plea. However, the court vacated Defendant’s sentence and remanded for resentencing based on the Government’s concession that Defendant should not have received two criminal history points for being on probation. The court rejected Defendant’s other contentions of sentencing error. The court explained that the district court did not err in accepting Defendant’s guilty plea, in applying the U.S.S.G. Section 2K2.1(b)(6)(B) enhancement at sentencing, in finding that Defendant’s state conviction supported a base offense level of twenty under U.S.S.G. Section 2K2.1(a)(4)(A), or in making certain factual findings at sentencing.

Boyd v. McNamara

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-50945

Opinion Date: July 24, 2023

Judge: Jennifer Walker Elrod

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

Plaintiff was repeatedly tased while he was a pretrial detainee at the McLennan County jail in Waco, Texas. Plaintiff insists that he did nothing to warrant the use of force—that he was neither threatening nor resisting the officer who tased him. The principal question on appeal is whether Plaintiff has presented sufficient evidence to defeat summary judgment on his ensuing civil rights claims.
 
The Fifth Circuit reversed summary judgment on Plaintiff’s excessive force claim against Defendant and remanded that claim to the district court for trial. The court reversed and remanded the district court’s grant of summary judgment on Plaintiff’s policy and practice claims to afford Plaintiff the opportunity to discover evidence relevant to those claims. But the court affirmed the dismissal of Plaintiff’s deliberate indifference claim. The court denied the motion to dismiss the appeal for lack of jurisdiction. The court held that a rational jury could find that Defendant’s decision to tase Plaintiff was not justified by any exigency, in which case Defendant’s qualified immunity defense would not shield him from liability because the court’s precedents clearly establish that resort to force in such circumstances is unconstitutional.
 
Further, the court wrote that it was inappropriate for the court to then dismiss Plaintiff’s policy and practice claims on the ground that Plaintiff failed to present “adequate summary judgment evidence of any official or unofficial policy,” depriving him of his rights. If a jury finds, as it could, that Defendant tased a non-threatening, compliant inmate, then he is not entitled to qualified immunity.

LA State v. Jefferson Parish Sch

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-30143

Opinion Date: July 25, 2023

Judge: Don R. Willett

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

The Jefferson Parish School Board (JPSB) separately suspended two students for individually having a BB gun visible during virtual school. Each student’s family sued the school board, in part seeking a declaration that the school board’s virtual learning disciplinary policy is unconstitutional. Louisiana intervened, agreeing with the families on the constitutionality of JPSB’s policy and separately challenging JPSB’s disciplinary actions as ultra vires. JPSB settled with the families, ending the private suits. Louisiana wants to continue the case, citing its broad interest in compliance with its laws. The question before us is whether Louisiana has standing to do so.
 
The Fifth Circuit concluded that Louisiana does not have Article III standing and remanded the case to the district court to send back to the capable Louisiana state courts. The court explained that this case lies outside the limits of Article III standing. States undoubtedly have an interest in enforcing their laws. But when it comes to federal courts, Louisiana must claim an injury to a traditional, sovereign interest to invoke Article III jurisdiction. The two are distinctly dissimilar. Louisiana fails to point to “any precedent, history, or tradition,” establishing that its interest in compliance with its laws is the equivalent of an Article III sovereign interest in maintaining its right to govern in the face of competing authority. The state similarly fails to establish an injury to an established quasi-sovereign interest sufficient to show parens patriae standing. Louisiana’s claim of injury to a proprietary interest also falls short.

USA v. Capistrano

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-10620

Opinion Date: July 25, 2023

Judge: Patrick E. Higginbotham

Areas of Law: Constitutional Law, Criminal Law

A grand jury indicted a doctor and two pharmacists (collectively, “Appellants” or “Defendants”) for roles in a “pill-mill” operation. Prosecutors charged Appellants with three drug-distribution conspiracies that each spanned from 2011 to 2020. The pharmacists, who both owned pharmacies, were also charged with possession with intent to distribute controlled substances. At trial, the Government offered extensive evidence, including text messages, wiretaps, surveillance, cooperator testimony, and records from Defendants’ businesses and homes. The jury found Defendants guilty on all counts. The district court sentenced the doctor and one of the pharmacists to 240 months imprisonment and the other pharmacist to 151 months. Defendants timely appealed.
 
The Fifth Circuit affirmed. The court explained that there is sufficient evidence for a jury to draw reasonable inferences to support Appellants’ convictions. The pharmacist and doctor failed to make the showings necessary to warrant plain error reversal. The pharmacist’s refusal to be represented by her retained attorney amounted to a knowing and voluntary waiver of counsel. The pharmacist failed to show the necessary prejudice for her challenges to the denial of a continuance, as well as permitting a DEA agent to authenticate her signature as a lay witness. The Government’s closing argument was consistent with the evidence. The record is not sufficiently developed to evaluate the doctor’s IAC claim.

USA v. Choulat

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-50056

Opinion Date: July 27, 2023

Judge: Jerry E. Smith

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to being a felon in possession of a firearm and received a sentencing enhancement for possessing a gun “in connection with” drug trafficking. Defendant raised two challenges to his sentence.
 
The Fifth Circuit affirmed, holding that the district court applied the Sentencing Guidelines and did not clearly err in its factfinding. The court explained that Defendant correctly received a four-level sentencing enhancement if he possessed a firearm in connection with a drug trafficking offense. The court reasoned that a firearm is “automatically” connected to drug trafficking if it is found in close proximity to drugs or drug paraphernalia, and there is no serious dispute that Defendant’s firearm was in close proximity to his drugs, grinder and scale.
 
Further, Defendant argued that the automatic enhancement prescribed by Application Note 14(B) is an unreasonable expansion of the Guidelines’ text under Kisor v. Wilkie. The court noted that first, the district court was entitled to find that Defendant committed a drug trafficking offense. Mere possession of a controlled substance with an intent to distribute qualifies as a “drug trafficking offense.” Moreover, Defendant alleged that he expressly told the officers at the traffic stop that the drugs were just for personal use. But there is nothing in the record to support that. Finally, Defendant reasoned that because he was homeless, he was less capable of trafficking. But the United States cites Defendant’s lack of gainful employment as evidence for trafficking—he had an obvious motive to turn drugs for profit.

USA v. Cortez-Balderas

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-30296

Opinion Date: July 26, 2023

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to one count of identity theft and one count of possession of a firearm by a convicted felon. The district court found the calculated guidelines range of 15 to 21 months to be “woefully unreasonable” and varied upwards to a total of 72 months of imprisonment, which consisted of a sentence of 36 months for the identity theft offense and a concurrent sentence of 72 months for the firearm offense. On appeal, Defendant challenged only the substantive reasonableness of the 72-month sentence for the firearm offense.
 
The Fifth Circuit affirmed. The court concluded that Defendant has not shown that the district court abused its discretion. The court also concluded that the district court did not abuse its discretion by giving significant weight to Defendant’s prior marijuana importation offense, which is the predicate offense for his firearm conviction, and to the statements of the victim of the identity theft. Finally, Defendant has not shown that the district court made a clear error of judgment in balancing the sentencing factors of Section 3553(a), and the court declined to reweigh those factors.

USA v. Wright

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-40849

Opinion Date: July 25, 2023

Judge: Jerry E. Smith

Areas of Law: Constitutional Law, Criminal Law

Defendant was indicted on one count of being a felon in possession of a firearm. He moved to suppress the evidence of the weapon, claiming that the gun was the fruit of an unlawful seizure because the officer lacked reasonable suspicion to initiate a “Terry stop.” The district court orally denied the motion to suppress after a live hearing based on testimony from the officer and the tipster. Defendant entered a conditional guilty plea, reserving the right to appeal the denial. After the court entered a judgment of conviction, Defendant timely appealed.

The Fifth Circuit concluded that the police had reasonable suspicion to seize Defendant and thus lawfully obtained the incriminating evidence from his car. The court further affirmed the judgment of conviction. The court explained that the contemporaneous tip, the visual details that the officer confirmed, the high-crime area, and Defendant’s evasive response to police presence was enough to give an officer articulable suspicion that crime was occurring (or was about to occur). To conclude otherwise would raise the bar of reasonable suspicion and hamper law enforcement from engaging in essential investigatory actions.

Linden v. City of Southfield, Michigan

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-1681

Opinion Date: July 26, 2023

Judge: Gibbons

Areas of Law: Civil Rights, Constitutional Law

Beauchamp had cerebral palsy. Her mother found Beauchamp unresponsive and called 911. Minutes later, four “First Responders” arrived and attempted CPR and ventilation. After about 30 minutes, they discontinued those efforts and declared her dead. They also called a doctor to obtain permission to stop trying resuscitation, although they had stopped resuscitative efforts five minutes earlier. Numerous medical indicators showed that Beauchamp was not dead—her capnography indicated continued respiration, her cardiac monitor showed electrical activity, and her breathing and pulse were perceptible to her family members. Despite inquiries by Beauchamp’s family members, police officers, and a funeral home employee, the First Responders repeated that Beauchamp was dead, explaining the signs of life as reactions to medication. The funeral home employee placed Beauchamp in a body bag and went to the funeral home. An embalmer saw Beauchamp gasping for air with her eyes open and her chest moving and called 911. At the hospital, doctors determined that Beauchamp was alive but had suffered an anoxic brain injury. Beauchamp remained on a ventilator in a vegetative state and died weeks later.

The Sixth Circuit affirmed the dismissal of a suit under 42 U.S.C. 1983, alleging deliberate indifference to Beauchamp’s serious medical need. The individual defendants are entitled to qualified immunity and the city is not liable for any constitutional violation.

New Albany Main Street Props. v. Watco Co., LLC

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-5351

Opinion Date: July 27, 2023

Judge: Murphy

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

In 1965, the predecessors of the Louisville and Jefferson County Metropolitan Government established the Riverport Authority, which constructed and owns a 300-acre Ohio River port facility. In 2009, the Authority leased the facility to “Port of Louisville.” In 2016, the parties extended the lease, potentially until 2035. According to Port, in 2018, Bouvette, the Authority’s director, started secret negotiations with its competitor, Watco. Port alleges that Bouvette and Watco needed a pretext to terminate the existing agreement and hired outside advisors to inspect the facility. These allegedly biased advisors found the facility “mismanaged, unsafe, and in disrepair.” The Authority asserted that Port had breached the lease and filed suits to remove it from the facility while conducting public bidding and awarding a lease to Watco, contingent on Port’s removal from the site. In one suit, Kentucky courts upheld a decision in favor of Port.

In another suit, Port alleged tortious interference with contractual and business relationships, civil conspiracy, and defamation against Watco and Bouvette. The district court rejected Bouvette’s defenses under state-law sovereign immunity, governmental immunity, and Kentucky’s Claims Against Local Governments Act, noting the Authority’s status as a corporation and that it performed a proprietary (not governmental) function. The Sixth Circuit reversed. Under Kentucky law, a “state agency” cannot receive “automatic” immunity but the Authority is under the substantial control of an immune “parent.” The development of “transportation infrastructure” is a government task; the Authority does not act with a “profit” motive and alleviates a statewide concern.

United States v. Smith

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-1055

Opinion Date: July 24, 2023

Judge: Chad A. Readler

Areas of Law: Constitutional Law, Criminal Law

D.B. left a Detroit and believed he was being followed by a silver sedan. At 1:41:01 a.m., a traffic camera captured D.B. driving through an intersection, followed by the silver sedan less than a minute later. Minutes later, about 2-½ miles away, an individual in a silver sedan shot D.B. Surveillance video captured muzzle flashes coming from a silver sedan described as “look[ing] like a Chevy Malibu.” The only silver sedan that could be placed in D.B.’s proximity around the time of the shooting was Smith’s Chevy Malibu. D.B. later picked Smith out of a photographic lineup as someone he had a “beef [with] in the past.”

Smith’s car was tagged in Michigan’s Law Enforcement Information Network, with a warning that the car’s occupants were armed. Days later, an officer stopped Smith’s car and frisked Smith for weapons. Smith stated there was a gun in a case in the car. The trooper performed a “protective sweep” of the areas within a driver’s reach and found a handgun with a chambered bullet and a baggie containing fentanyl and heroin. Smith unsuccessfully moved to have the evidence suppressed as fruit of an unreasonable search. The Sixth Circuit affirmed the denial of the motion. The police had reasonable suspicion to stop Smith and perform a limited search.

Arce v. Wexford Health Sources, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1694

Opinion Date: July 27, 2023

Judge: Diane Pamela Wood

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

Inmate Arce got a sharp knee in the thigh while he was playing soccer at Illinois’s Pinckneyville Correctional Center in June 2017. Since then, he has suffered from severe leg pain, which the prison’s medical providers (Wexford) ultimately concluded was attributable to a blood clot. Arce’s blood clot was successfully treated but his pain persisted. Arce sued Wexford and two of its employees, claiming that they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment.

The district court granted the defendants summary judgment. The Seventh Circuit affirmed. Arce claimed that he suffered from compartment syndrome and that failure to diagnose and treat this condition caused his long-term leg injury. But after five years and numerous visits to Wexford and non-Wexford health professionals, Arce has no evidence aside from his lay speculation that he experienced tissue necrosis in his thigh, the primary consequence of untreated compartment syndrome. Nor did Arce proffer any expert testimony or the results of any medical exam opining that his symptoms are consistent with untreated compartment syndrome. An orthopedist thought that he would benefit from further testing for that condition but Arce has not shown deliberate indifference in denying the recommended two-day follow-up appointment or that the denial was “a substantial departure from accepted professional judgment, practice, or standards.”

Booker v. Baker

Court: US Court of Appeals for the Seventh Circuit

Docket: 21-2166

Opinion Date: July 26, 2023

Judge: Diane Pamela Wood

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

Booker was convicted of first-degree murder and received a 55-year sentence of 55. After unsuccessfully appealing his conviction, he tried a petition for postconviction relief. At the latter stage, he was represented by Illinois Assistant Appellate Defender Reyna. Booker wanted Reyna to argue that his trial counsel was constitutionally ineffective. Reyna declined. Booker filed a pro se supplemental brief raising the ineffective assistance of trial counsel claim. The Illinois Appellate Court rejected Booker’s pro se brief because of the state’s rule against hybrid representation.

Booker then filed a federal habeas petition, 28 U.S.C. 2254, arguing that his trial counsel was ineffective. The district court held that the claim was procedurally defaulted, reasoning that Illinois courts did not violate any federal rule when they denied his attempt to raise the issue in a pro se supplemental brief. The court also held that Booker’s default could not be excused on actual innocence grounds. The Seventh Circuit affirmed. Booker must bear the consequences of his decision. Even if Reyna’s advice was not entirely accurate regarding his chances of success, Booker had proceeded pro se in the past and knew that he could do so again to ensure that his preferred arguments were raised, or he could hope that the court would make an exception to the rule against hybrid representation.

Fehlman v. Mankowski

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1467

Opinion Date: July 26, 2023

Judge: Jackson-Akiwumi

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

Fehlman was the Neillsville Police Department’s interim police chief in 2019. In 2020, Mankowski was hired as the permanent chief. Fehlman returned to being a rank-and-file officer. Over the next several months, Fehlman raised concerns about the management of the department, which Mankowski rebuffed. Fehlman and other officers requested a meeting with the Police & Fire Commission (PFC), where Fehlman raised concerns that Mankowski instilled fear in officers; Mankowski lacked professionalism and, while on duty, told a bar owner that he should consider having the owner’s wife dance topless; Mankowski ordered officers to turn off their body cameras in violation of department policy; Mankowski verbally abused suspects; Mankowski changed radio talk procedures in ways that threatened officer safety; Mankowski prioritized speed limit enforcement over responding to an allegation of child abuse at a school.

Mankowski subsequently harassed Fehlman, taking away his work credit card and threatening charges of insubordination. Fehlman resigned from the NPD. Mankowski allegedly interfered with Fehlman’s job search by making false, negative comments (Fehlman was hired nonetheless). Fehlman also discovered that his NPD personnel file had been altered and that Mankowski gave information to the unemployment compensation office that led to a delay in benefits.

Fehlman sued Mankowski under 42 U.S.C. 1983, alleging violation of his First Amendment rights. The Seventh Circuit affirmed the dismissal of his complaint. Fehlman’s statements to the PFC were made in his capacity as a public employee, not a private citizen.

Howe v. Hughes

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1368

Opinion Date: July 24, 2023

Judge: Scudder

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

Illinois’s Sexually Dangerous Persons Act authorizes the commitment and indefinite detention of individuals who are charged with a crime and found to suffer from a mental disorder "coupled with criminal propensities to the commission of sex offenses.” The Act requires care and treatment for the committed person, "designed to effect recovery.” Once detainees are deemed “no longer dangerous,” the state must discharge them. The Supreme Court held, in 1986, that the Act, on its face, complies with the Due Process Clause, noting the lack of punitive intent, the availability of treatment, and the realistic possibility of release.

Every Big Muddy River Program detainee participates in a weekly core therapy group. Only detainees who have acknowledged their prior sexual misconduct participate in offense-specific and didactic groups. Big Muddy does not provide individual therapy. Therapists evaluate detainees semiannually and provide them with copies of their evaluations and treatment plans. Detainees may discuss their evaluations with the therapists only in group therapy, not one-on-one. The state contracts with Wexford to evaluate detainees for release. The plaintiffs alleged that Big Muddy’s treatment program was run in a constitutionally deficient manner.

The district court concluded that the disparity between Big Muddy’s treatment program and professional standards amounted to a constitutional violation and issued an injunction, requiring that Big Muddy provide the plaintiffs a minimum of 7.5 hours of core group therapy per week; reinstate inactive groups; and use independent evaluators for discharge evaluations.

The Seventh Circuit reversed, acknowledging concern about whether Illinois is complying with its Fourteenth Amendment obligations. Detainees receive minimal treatment, raising serious questions about whether rehabilitation and release are realistically available. The district court, however, issued too broad an injunction under the Prison Litigation Reform Act, 18 U.S.C. 3626(a)(1)(A), which requires the least intrusive means available to correct the constitutional violation.

Reardon v. Danley

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2404

Opinion Date: July 21, 2023

Judge: Joel Martin Flaum

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

In 2020, Reardon unsuccessfully ran for Coles County State’s Attorney against the incumbent, Danley. Reardon brought a 42 U.S.C. 1983 lawsuit against public officials (including Danley), the City of Mattoon, and Coles County, alleging violations of his First, Fourth, and Fourteenth Amendment rights. The Seventh Circuit affirmed the dismissal of the suit.

In 2019, Danley and the Mattoon Police Department (MPD) subpoenaed Reardon’s Facebook account information during an investigation into his potential involvement in a perjury/bribery case. A judge denied Reardon’s motion to quash but declined to release the documents until after a probable cause hearing. The Seventh Circuit noted that section 1983 curtails the availability of injunctive relief against judicial officers.

Coles County Board Member Metzger removed a Reardon campaign sign from a resident’s lawn weeks before the election, allegedly mistakenly believing the sign was installed without permission. The Board determined that no further action was needed. Reardon did not sufficiently allege that Metzger was “acting under color of state law,” and Coles County is not liable based on the Board’s alleged ratification of Metzger’s conduct.

Two weeks before the election, Mattoon Chief of Police Taylor posted a photo of himself (in uniform) with Danley, inside his office, on the official MPD Facebook page with a caption encouraging people to vote for Danley. Reardon failed to provide any authority to support that Taylor or Danley violated the Constitution.

United States v. Evans

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1195

Opinion Date: July 24, 2023

Judge: Scudder

Areas of Law: Constitutional Law, Criminal Law

Evans twice sold heroin to a confidential source (50 grams, 125 grams). Officers stopped Evans 30 minutes later and found cash from the controlled purchase, methamphetamine, two handguns, and ammunition. He was charged with two drug distribution counts, 21 U.S.C. 841, and two firearm counts, 18 U.S.C. 924(c) and 922(g)(1). Following conflicts with Evans’s first two lawyers, Sarm was appointed to represent Evans. After Evans withdrew a plea, prosecutors added another 924(c) count.

At trial, Sarm only subjected four of 11 witnesses to meaningful cross-examination and rested without presenting any evidence or calling any defense witnesses. Convicted, Evans was sentenced to 788 months; 50 years came from the 924(c) convictions, each of which carried mandatory minimum, consecutive sentences of 25 years because Evans had a prior qualifying 924(c) conviction. Nineteen days after the trial, Sarm overdosed on heroin. The district court appointed new counsel but, without a hearing, denied a motion for a new trial.

The Seventh Circuit vacated. Evans made a single choice to possess a firearm over a continuous 30-minute span that included a sale of heroin and the police finding methamphetamine and a gun in his car. The facts support one 924(c) conviction, not two. Evans faced serious charges with serious sentencing consequences; his appointed counsel had never tried a federal criminal case and was using heroin before, during, and after trial. Evans was entitled to an evidentiary hearing on his motion for a new trial.

Walker v. Baldwin

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2342

Opinion Date: July 26, 2023

Judge: St. Eve

Areas of Law: Civil Rights, Constitutional Law

Dixon Correctional Center Officer Brinkmeier informed inmate Walker that prison policy prohibited prisoners from maintaining “unsearchable” hairstyles like dreadlocks. Walker told Brinkmeier that he was a Rastafarian and had taken a vow not to cut his hair. Brinkmeier later returned with another officer and again ordered Walker to cut his dreadlocks. The officers disciplined Walker for his disobedience, placing him in segregated housing for several days. Walker submitted an emergency grievance, which was denied without explanation. Walker was told that if he did not acquiesce, a tactical unit would forcibly remove his dreadlocks. Walker allowed the prison barber to shave his hair. Walker regrew his dreadlocks and kept them for three years. During security checks, officers ran their gloved hands through his dreadlocks. When he was released from Dixon, Walker’s dreadlocks were roughly the same length as they had been when he entered prison.

Walker sued for violations of the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc-1. The district court noted that under Circuit precedent, Walker could not seek monetary damages against individual defendants under RLUIPA; “the only relief available under RLUIPA,” injunctive relief, was moot because Walker had been released. The court also granted the defendants summary judgment on Walker’s First Amendment claim, citing qualified immunity. The Seventh Circuit dismissed an appeal, finding that Walker abandoned his RLUIPA damages claim.

Benedda Cotten v. Ryan Miller

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2872

Opinion Date: July 24, 2023

Judge: Steven M. Colloton

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

Plaintiffs sued police officers under Sec. 1983 after the officers made warrantless entry into their apartment. The district court granted summary judgment to Plaintiffs and Defendants appealed.

On appeal, the Eighth Circuit reversed. While warrantless searches are presumptively unreasonable, there is an exception when officers act with probable cause to believe that a crime has been committed and an objectively reasonable basis to believe that exigent circumstances exist.

Here, the officers were dispatched to the scene in response to a report of domestic violence. The report received by the officers explained that the 911 call came from a neighbor who thought “abuse” was occurring and heard a “verbal argument,” “someone being thrown around,” and “yelling and screaming” in the upstairs apartment. The neighbor stated that a woman, her boyfriend, and a child lived in the apartment. This created anm exigency, justifying warrantless entry.

John Smith v. Jeremy Andrews

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3356

Opinion Date: July 26, 2023

Judge: Lavenski R. Smith

Areas of Law: Civil Rights, Constitutional Law

Plaintiff appealed the dismissal of his claims against various Arkansas Department of Corrections staff members for damages stemming from injuries that he received when he was beaten by another inmate. Plaintiff alleged that Defendants failed to protect him from the beating. The district court dismissed Plaintiff’s claim on summary judgment, finding that he had failed to exhaust his administrative remedies even though he remained hospitalized from his injuries until the time for filing expired. At issue is whether the district court erred in dismissing Plaintiff’s complaint for failure to exhaust administrative remedies.
 
The Eighth Circuit reversed and remanded. The court concluded that the district court’s rant of summary judgment was premature. The court explained that the district court legally erred in declining to decide whether administrative remedies were “unavailable” to Plaintiff. As the Supreme Court stressed in Ross, the PLRA “contains its own textual exception to mandatory exhaustion.” The court explained that under the PLRA, the exhaustion requirement hinges on the 'availability’ of administrative remedies. The court reversed because the district court declined to decide whether the prison’s grievance procedure was unavailable to Plaintiff.

Kelly Martin v. Jordan Turner

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1449

Opinion Date: July 21, 2023

Judge: GRUENDER

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

The Eighth Circuit reversed the district court’s ruling denying the Deputy’s motion for qualified immunity in Plaintiff’s lawsuit, alleging that the Deputy’s conduct amounted to deliberate indifference to her seizure condition after she was arrested for driving while intoxicated. The Deputy asserted qualified immunity in his motion for summary judgment, which the district court denied.
 
The Eighth Circuit reversed. The court explained that the Deputy promptly attended to Plaintiff and asked her whether she was hurt or suffered from medical problems. She said no and did not advise him of her seizure disorder. Emergency medical personnel also observed Plaintiff and were content not to take her to the hospital, advising the Deputy that she had refused further treatment. He then took Plaintiff and her medications to jail. Barton I did not provide the Deputy with fair notice that his failure to seek further medical treatment for Plaintiff or to speak with the jailors about what Plaintiff’s boyfriend told him constituted deliberate indifference. Thus, Plaintiff failed to show that clearly established law prohibited the Deputy’s conduct, and the Deputy is entitled to qualified immunity.

Rodney Baker v. Bentonville School District

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2669

Opinion Date: July 27, 2023

Judge: LOKEN

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

Plaintiffs individually and as next friends of their minor daughter, I.B., appealed the district court’s dismissal of disability discrimination and civil rights deprivation claims, and denial of their motion to reconsider dismissing with prejudice a state law negligence claim against the Bentonville, Arkansas School District (“the District”).
 
The Eighth Circuit affirmed. The court explained that Arkansas law provides a direct cause of action against the liability insurer of a school district that is “not subject to suit for tort.” Plaintiffs’ Complaint named “John Doe” as an additional defendant, alleged on information and belief that the District maintained liability insurance, identified the insurer as John Doe, and stated that “the joinder of [John Doe] will be made upon verification of its identity.” Eleven months later, the district court ordered Plaintiffs to show good cause for an extension of the deadline to add parties, if they opposed dismissal of the John Doe defendant without prejudice. When Plaintiffs did not respond, the district court dismissed John Doe without prejudice, leaving the District, with its statutory immunity, the only negligence defendant. Plaintiffs were not deprived of a remedy for the alleged negligence of District employees and agents.

TonyaMarie Adams v. Nathan Trimble

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3234

Opinion Date: July 24, 2023

Judge: William Duane Benton

Areas of Law: Civil Rights, Constitutional Law

Plaintiff, for her son A.H., sued Defendant Officer under 42 U.S.C. Section 1983, alleging he used excessive force by not giving a warning while searching with a canine trained to “bite and hold.” Trimble moved for summary judgment. The district court denied qualified immunity on the excessive force claim. Defendant appealed.
 
The Eighth Circuit affirmed. The court explained that there is no dispute that Defendant did not provide a warning when he deployed Ace or when Ace alerted to fresh human odor during the search. The parties dispute whether A.H. heard the warnings from the other officers. A.H., lying underneath a trailer, testified he did not hear any warnings. The court wrote that assuming the facts most favorably to A.H., he did not hear the other officers’ warnings and did not have the opportunity to surrender. Defendant had fair notice from the court’s precedent that the failure to give a warning and an opportunity to surrender violated clearly established law.

United States v. Christopher Conrad

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3275

Opinion Date: July 26, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to unlawful possession of a firearm as a previously convicted felon. At sentencing, the district court determined a base offense level of 24 after concluding that Defendant had sustained two prior felony convictions for a crime of violence. The court sentenced Defendant to 96 months imprisonment. On appeal, Defendant argued that the district court committed procedural error when it calculated his base offense level and failed to follow the procedures of Federal Rule of Criminal Procedure 32(i)(3).


The Eighth Circuit affirmed the sentence but remanded for correction of the court’s statement of reasons. The court explained that the district court was not required to resolve every disputed issue and to amend the presentence report accordingly. But Rule 32 does impose a duty either to resolve disputes or to determine that a ruling is unnecessary and then to append a copy of the court’s determinations to the report. Defendant requested, and the government does not resist, a remand for the district court to amend its statement of reasons to reflect that it did not resolve Defendant’s objection to the presentence report regarding gang affiliation. Accordingly, the court agreed that the remedy is warranted.

United States v. Jerry Wise

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3140

Opinion Date: July 24, 2023

Judge: Erickson

Areas of Law: Constitutional Law, Criminal Law

Defendant was a passenger in a vehicle that was stopped by law enforcement while speeding in a construction zone. The driver admitted there was marijuana in the car. During the search, the driver tossed a bag to Defendant. The bag contained methamphetamine. Ultimately, the trooper seized both cell phones from the driver and Defendant.

Although the phone found in the center console was a “burner” phone without any identifying subscriber information on it, it contained evidence tying Defendant to the phone, including: (1) messages identifying the sender as Defendant; (2) a photograph of Defendant's bank card; and (3) text messages between a sender using the phone and Defendant's sister. At trial, prosecutors planned to call the trooper to authenticate the phone. The district court allowed the trooper's testimony over objection.

The Eighth Circuit affirmed, finding that direct evidence that the phone belonged to Defendant is not required and circumstantial evidence may be relied on to support authenticity.

United States v. Johnathan Brown

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2308

Opinion Date: July 21, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to a firearms offense. The district court sentenced Defendant to sixty months’ imprisonment. Defendant argued that the district court committed procedural error by miscalculating his base offense level under the sentencing guidelines.
 
The Eighth Circuit affirmed, concluding that the court did not err. The court concluded that we conclude that Mo. Rev. Stat. Section 575.150.1(1) is divisible into multiple offenses. Therefore, the court applied the modified categorical approach to determine the alternative under which Defendant was convicted. According to the charging document and judgment in Defendant’s Missouri criminal case, he pleaded guilty to resisting arrest “by using or threatening the use of violence or physical force.” Therefore, Defendant’s prior conviction was for a crime of violence under the sentencing guidelines.

United States v. Jose Sandoval

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2146

Opinion Date: July 24, 2023

Judge: Raymond W. Gruender

Areas of Law: Constitutional Law, Criminal Law

Defendant was arrested for narcotics and firearms charges. Once in custody, he made several inculpatory statements. However, prior to trial, he fled to Mexico for eight years before being apprehended. The district court denied Defendant's motion to suppress evidence based on a lack of probable cause and, at sentencing, the district court applied an obstruction-of-justice enhancement and rejected his request for an acceptance-of-responsibility reduction.

The Eighth Circuit affirmed. The information contained in the affidavit was provided by an informant who had a history of providing reliable information. And, although Defendant pleaded guilty, the court did not err in denying his request for an acceptance-of-responsibility reduction based on Defendant's flight to Mexico.

United States v. Melroy Johnson, Sr.

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1332

Opinion Date: July 27, 2023

Judge: KELLY

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted by a jury of conspiracy to distribute and possession with intent to distribute methamphetamine. On appeal, Defendant argued judgment of acquittal or a new trial and in calculating the drug quantity for purposes of sentencing.
 
The Eighth Circuit affirmed. The court explained that the magistrate judge, after hearing testimony from the officer, concluded that his conduct in drafting the affidavit amounted to negligence. But to prevail here, Defendant “must show more than negligence or an innocent mistake.” And the court agreed with the district court that the officer did not act recklessly in his efforts to obtain a search warrant, despite the time pressure. The record does not indicate that the officer entertained serious doubts about or had obvious reasons to question the accuracy of his statements. Therefore, Defendant is not entitled to suppression under Franks. Further, the court held that the information included in the warrant affidavit, the officers’ good-faith reliance on the search warrant for Defendant’s home, was objectively reasonable. Moreover, the court wrote that there was no abuse of discretion in denying Defendant’s motion for a new trial because there was no reasonable probability that the result of the proceeding would have been different had the Gentry evidence been produced. Finally, the court saw no clear error in the district court’s drug quantity calculation.

United States v. Michael Welker

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1096

Opinion Date: July 27, 2023

Judge: KELLY

Areas of Law: Constitutional Law, Criminal Law

Defendant was indicted for committing mail and wire fraud against his spouse and National Life Insurance. He moved to dismiss the indictment for failure to state an offense, which the district court1 denied. Welker appealed.
 
The Eighth Circuit affirmed. The court explained that the indictment included allegations about Defendant’s intentional concealment of material information from and misrepresentations to R.W., supporting that he had the “intent to defraud” her. And it alleged that he used the mail and wire in furtherance of his scheme. These allegations were sufficient to apprise Defendant of the nature of the accusations against him and to enable the district court to determine that the facts stated were adequate in law to support a conviction. Further, the court wrote that Defendant provided no support for the proposition that an indictment must sufficiently allege a violation of state law to sufficiently state a federal mail or wire fraud offense. Ultimately, the court held that the indictment charging Defendant is not “so defective” that it fails to charge him for mail and wire fraud under federal law.

United States v. Nicholas Jones

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1816

Opinion Date: July 24, 2023

Judge: GRASZ

Areas of Law: Constitutional Law, Criminal Law

Law enforcement organized controlled buys using a confidential informant. Initially, Defendant was not the target of the investigation; however, events that transpired during the controlled buys led the MINE Task Force to suspect Defendant and his wife were involved in illegal drug activity, and they became the primary targets of the investigation.

Based on information from the controlled buy, law enforcement obtained a warrant to search Defendant's home, ultimately seizing $154,000, firearms, ammunition, marijuana, and handwritten notes apparently detailing narcotics sales.

Defendant sought suppression of the physical evidence, arguing that the warrant failed to establish probable caused and that it was based on false information. Defendant's motion cited inconsistencies with the affidavit. The district court rejected Defendnat's arguments, finding that, even if the statement were inaccurate, there was still enough to establish probable cause.

The Eighth Circuit affirmed. Although the court agreed that the inaccuracies were concerning, when removed from the analysis, there was still probable cause for the warrant to issue.

ANTONIO FERNANDEZ V. 23676-23726 MALIBU ROAD, LLC, ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 22-55626

Opinion Date: July 26, 2023

Judge: Roopali H. Desai

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

Plaintiff’s claim under the Americans with Disabilities Act (“ADA”) was dismissed for lack of standing. Thereafter, the district court considered and granted Malibu Road and Bungalow Lighting’s motion for attorneys’ fees under the ADA’s fee provision. Plaintiff did not appeal the dismissal of his ADA claim for lack of standing, but he appeals the award of attorneys’ fees, arguing that his lawsuit was not frivolous. However, the issue before the court was not whether Plaintiff’s claim was frivolous and therefore justified an award of fees, but rather whether there is a basis to award attorneys’ fees under the ADA’s fee provision after the underlying claim has been dismissed on jurisdictional grounds.
 
The Ninth Circuit reversed and vacated. The panel held that because the district court dismissed Plaintiff’s claim for lack of standing, it lacked jurisdiction to award fees under the Americans with Disabilities Act’s fee provision, 42 U.S.C. Section 12205

FORTUNATO AMADOR DUENAS V. MERRICK GARLAND

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-71987

Opinion Date: July 27, 2023

Judge: Lee

Areas of Law: Constitutional Law, Immigration Law

Petitioner challenged the constitutionality of the appointment and removal process for Immigration Judges and members of the Board of Immigration Appeals (BIA).
 
The Ninth Circuit denied Petitioner’s petition for review of a decision of the BIA, the panel held that the appointment and removal process for Immigration Judges and members of the BIA comports with Article II of the Constitution. The panel rejected Petitioner’s suggestion that Immigration Judges and BIA members are principal officers who, under the Appointments Clause of Article II, must be nominated by the President and confirmed by the Senate. Rather, the panel concluded that they are inferior officers (whose appointment may be vested in the head of a department) because the Attorney General ultimately directs and supervises their work. Thus, the panel held that the Appointments Clause allows Congress to vest their appointment in the Attorney General. The panel next held that the removal process for Immigration Judges and BIA members satisfies Article II, which requires that officers remain accountable to the President by limiting restrictions on the removal of the President’s subordinates. The panel explained that the Attorney General has the power to remove Immigration Judges and BIA members and that nothing restricts the Attorney General’s ability to remove them at will. Thus, these officers remain dependent on the Attorney General for their positions—and by extension, on the President.

GEORGE JONES V. L.A. CENTRAL PLAZA, LLC, ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 22-55489

Opinion Date: July 26, 2023

Judge: Collins

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

Plaintiff sued Defendants L.A. Central Plaza LLC and Central Liquor & Market, Inc. for alleged violations of the Americans with Disabilities Act (“ADA”). After Plaintiff moved for summary judgment on the merits, the district court instead sua sponte dismissed the case on the ground that Plaintiff’s amended complaint had failed adequately to plead the elements of Article III standing. Plaintiff timely appealed the dismissal.
 
The Ninth Circuit vacated and remanded. The panel held that because Plaintiff had a full and fair opportunity to prove his case as to standing, the district court had discretion in resolving Plaintiff’s summary judgment motion, to also consider sua sponte whether to grant summary judgment against Jones on the issue of standing. The panel held, however, that when presented with the issue of standing in the context of Plaintiff’s fully briefed summary judgment motion, the district court could not ignore the factual evidence of standing presented at summary judgment and instead sua sponte examine the adequacy of the complaint’s allegations of standing.

HITOSHI YOSHIKAWA V. TROY SEGUIRANT, ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-15970

Opinion Date: July 25, 2023

Judge: Wardlaw

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

Plaintiff filed this action in May 2018, alleging federal claims under Section 1981 and Section 1983 and state law claims against a building inspector Troy Seguirant, the City and County of Honolulu, and other defendants. Only Plaintiff’s Section 1981 claim against Seguirant is at issue in this appeal; the district court dismissed the Section 1983 claims against Seguirant with prejudice.
 
The Ninth Circuit vacated the district court’s order denying qualified immunity on a claim under Section 1981, and remanding, the en banc court held that Section 1981 does not provide an implied cause of action against state actors. Joining other circuits and overruling Federation of African American Contractors v. City of Oakland, 96 F.3d 1204 (9th Cir. 1996), the en banc court held that Section 1981, as amended in 1991, establishes substantive rights that a state actor may violate but does not itself contain a remedy against a state actor for such violations. Thus, a plaintiff seeking to enforce rights secured by Section 1981 against a state actor must bring a cause of action under 42 U.S.C. Section 1983. The en banc court remanded with instructions to allow the plaintiff to replead his Section 1981 claim as a Section 1983 claim.

NORA PHILLIPS, ET AL V. U.S. CUSTOMS AND BORDER PROT., ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-55768

Opinion Date: July 21, 2023

Judge: Ikuta

Areas of Law: Constitutional Law, Criminal Law

Plaintiffs sought to expunge records that were created by several federal agencies as part of a surveillance program in 2018–2019, arguing that the collection and retention of these records violated their constitutional rights. The district court granted summary judgment to the government, holding that Plaintiffs lacked Article III standing to seek expungement.
 
The Ninth Circuit affirmed the district court’s summary judgment in favor of the government. The panel rejected Plaintiffs’ central argument that the government’s retention of illegally obtained information about them was per se an injury-in-fact. Under Supreme Court precedent, the retention of records alone does not constitute a concrete injury, and Plaintiffs must assert that such retention gives rise to a tangible harm or material risk of future tangible harm or bears a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts. The panel rejected Plaintiffs’ alternative argument that the government’s retention of records allegedly obtained in violation of their First and Fourth Amendment rights constituted a concrete and ongoing injury under that framework.
 
The evidence did not show that the government was using or will use the records to investigate plaintiffs or prevent them from crossing the border or that a third party will obtain the records and use them to Plaintiffs’ detriment. Plaintiffs had not shown that retention of the type of information contained in the records could give rise to a common law tort claim. Finally, plaintiffs failed to explain (or identify supporting authority) why retention of the records was an ongoing violation of their constitutional rights.

ROBERT LEEDS V. PERRY RUSSELL, ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-16813

Opinion Date: July 26, 2023

Judge: Paez

Areas of Law: Constitutional Law, Criminal Law

In 2006, a Nevada jury convicted Leeds of first-degree murder. Although Petitioner resided at the house where the murder occurred, the prosecution presented a felony-murder theory at trial, alleging that Petitioner committed the murder during the course of a burglary because he entered the home’s garage as he struggled with the victim. Petitioner’s trial counsel failed to argue that a person cannot burglarize his own home. The jury’s general verdict form did not specify whether the jury relied on the felony-murder theory or the State’s alternative theory of willful, deliberate, and premeditated murder to convict Petitioner of first-degree murder. Petitioner later sought state habeas relief, but his postconviction counsel failed to allege in the petition that trial counsel was ineffective for failing to argue that Petitioner could not burglarize his own home. The claim was, therefore, procedurally defaulted under Nevada law. Petitioner then filed a habeas petition in federal district court, which the court ultimately granted. The State of Nevada appealed the grant of Petitioner’s petition for a writ of habeas corpus.
 
The Ninth Circuit affirmed. The panel held that Petitioner established a basis to excuse the procedural default of his claim because (1) Petitioner’s trial counsel IAC claim is substantial and therefore satisfies Martinez’s prejudice requirement; and (2) Petitioner’s postconviction counsel provided ineffective assistance under Strickland, meeting the Martinez cause requirement. The panel held that Petitioner is entitled to relief on the merits because (1) the trial counsel’s failure to raise the objectively important burglary argument constituted deficient performance, and (2) there is a reasonable probability that the result of the proceeding would have been different.

Meek v. Martin

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-7021

Opinion Date: July 25, 2023

Judge: Jerome A. Holmes

Areas of Law: Constitutional Law, Criminal Law

Petitioner Jerry Meek, an Oklahoma state prisoner convicted of first-degree murder, appealed a district court’s denial of his petition for a writ of habeas corpus. He argued the district court erroneously determined the Oklahoma Court of Criminal Appeals (“OCCA”) did not unreasonably apply clearly established federal law related to his sufficiency-of-the-evidence, ineffective-assistance-of-counsel, and cumulative-error claims. Finding no reversible error, the Tenth Circuit Court of Appeals affirmed the denial of relief.

United States v. Kepler

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-5006

Opinion Date: July 25, 2023

Judge: Scott Milne Matheson, Jr.

Areas of Law: Constitutional Law, Criminal Law, Native American Law

Defendant-Appellant Shannon Kepler appealed his conviction for causing death by discharging a firearm during a crime of violence. Kepler and his wife Gina Kepler both worked as officers for the Tulsa Police Department. During the summer of 2014, the Keplers began to experience conflict with their 18-year-old adopted daughter, Lisa. Kepler gained access to Lisa’s Facebook account to monitor her activity. Eventually, the Keplers kicked Lisa out of their home and dropped her off at a homeless shelter. Kepler continued to monitor Lisa’s Facebook account and discovered she was dating a man named Jeremey Lake. Using police department resources, Kepler obtained Lake’s address, phone number, and physical description. On the same day he obtained this information, Kepler armed himself with his personal revolver and drove his SUV to Lake’s address. He spotted Lisa and Lake walking together near the residence. Kepler stopped the SUV in the middle of the road, rolled down the window, and called out to Lisa. Lisa refused to talk to him and walked away. Kepler exited the vehicle to follow her.
At that point, Lake approached Kepler to introduce himself and shake his hand. Kepler drew his revolver. Lake tried to run away. Kepler shot him, once in the chest and once in the neck. Kepler then turned and fired shots in the direction of Lisa and Lake’s half-brother, M.H., who was 13 years old. Kepler then fled. Witnesses called 911. Paramedics arrived and declared Lake dead. Later that night, Kepler turned himself in to the Tulsa Police Department. At trial, Kepler admitted he shot Lake. He did not contend that he acted out of anger, provocation, or passion. Instead, he said he responded in self-defense to Lake’s threatening him with a chrome pistol. He entered into evidence the pistol discovered in a nearby trashcan and suggested that one of the witnesses took the pistol from Lake’s body and smuggled it into the police station. The jury rejected Kepler’s self-defense argument, leading to the conviction at issue here. Though Kepler argued second-degree murder was not a "crime of violence" and not a predicate offense for his conviction, the Tenth Circuit found no reversible error and affirmed Kepler's convictions and sentence.

United States v. Sago

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-5011

Opinion Date: July 24, 2023

Judge: Harris L. Hartz

Areas of Law: Constitutional Law, Criminal Law, Native American Law

Defendant Kyle Sago appealed murder convictions committed in Indian country and causing death by use of a firearm during and in relation to a crime of violence (namely, first- or second-degree murder). The jury was instructed on first-degree murder, second-degree murder, and self-defense. On appeal Sago argued the district court plainly erred in providing model jury instructions on first- and second-degree murder that inadequately defined the required element of malice. Specifically, he argued the instructions omitted the mitigation defense referred to as “imperfect self-defense:” the instructions were defective in that they failed to inform the jury that it could not find that Sago acted with malice unless it found that he was not acting in the sincere belief (even if the belief was unreasonable) that the use of deadly force was necessary. The Tenth Circuit affirmed: a mitigating circumstance instruction negates the malice element of first- and second-degree murder and must be accompanied by a lesser-included-offense instruction to inform the jury of the offense on which it could convict the defendant in light of the mitigating circumstance. And here, Sago did not request a relevant lesser-included-offense instruction for involuntary manslaughter. Therefore, the trial court did not err in declining to instruct on the mitigating circumstance.

United States v. Vannortwick

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-7034

Opinion Date: July 25, 2023

Judge: Robert Edwin Bacharach

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Kyle Vannortwick appealed the federal sentence he received for second-degree murder. The sentencing judge allegedly erred in calculating the guideline range. On its face, the alleged error wouldn’t have changed the guideline range. But Vannortwick argued that without the error, he could have obtained a lower sentence. Because this argument rested on speculation, the Tenth Circuit Court of Appeals affirmed the sentence.

United States v. Walker

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-5005

Opinion Date: July 24, 2023

Judge: Carolyn Baldwin McHugh

Areas of Law: Constitutional Law, Criminal Law, Native American Law

Craig Morrison and Amanda Walker brought Walker’s three-year-old son, R.T., to the emergency room and told doctors that R.T. had jumped off his bed and hit his head on his scooter. After examining R.T., doctors discovered bruising across most of R.T.’s body - injuries the doctors determined did not line up with Morrison’s and Walker’s story. The doctors contacted the police, who initiated a child abuse investigation, ultimately leading to a grand jury indictment of Morrison for two counts of child abuse, under the Assimilated Crimes Act, and of Walker for two counts of enabling child abuse, under the Assimilated Crimes Act. They were tried in a joint trial and the jury returned guilty verdicts on all four counts. In separate sentencing proceedings, the district court granted the Government’s motions for upward variances from United States Sentencing Guidelines sentences for both Morrison and Walker. Morrison and Walker filed separate appeals, collectively raising ten challenges to their convictions and sentences. Because Morrison and Walker were tried in one trial, and each joined several of the other’s arguments on appeal. Determining none of their arguments were meritorious, the Tenth Circuit affirmed Morrison’s and Walker’s convictions and sentences.

Joshua Paul English, et al v. Officer Jonathan Fowler, et al

Court: US Court of Appeals for the Eleventh Circuit

Docket: 22-10927

Opinion Date: July 27, 2023

Judge: WILLIAM PRYOR

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

Plaintiffs, survivors and the administrator of a man shot and killed by Defendant police officers filed a lawsuit alleging claims of excessive force under the Fourth Amendment and battery and negligence under Georgia law. And it demanded monetary damages. Both officers moved for summary judgment. They argued that they are entitled to qualified immunity from the claim of excessive force. They also argued that they are entitled to official immunity under Georgia law from the claims of battery and negligence. The district court denied the officers’ motions.
 
The Eleventh Circuit dismissed Defendants’ appeal based on a lack of jurisdiction. The court explained that it lacks appellate jurisdiction over the denial of qualified or official immunity that turns on issues of evidentiary sufficiency. The court explained that in this case, the only issues in this appeal are issues of evidentiary sufficiency. In their motions for summary judgment, the officers argued that their use of force was reasonable under the circumstances because they encountered a suspect who had brandished a gun, discharged it at least once, and ignored their commands to show his hands. The officers argued that in the light of these facts when they saw the man move, they had actual and probable cause to use deadly force on him.

USA v. Larry Lynn Gary

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-13249

Opinion Date: July 21, 2023

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

The Eleventh Circuit affirmed the district court’s ruling sentencing Defendant to 180 months e for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. Sections 922(g)(1) and 924(e). A federal grand jury indicted Defendant for unlawful possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. Sections 922(g)(1) and 924(e). In May 2021, Defendant pleaded guilty. Defendant’s PSR assigned him a base offense level of 24 pursuant to U.S.S.G. Section 2K2.1(a)(2). Defendant appealed his 180-month sentence arguing that his sentence was erroneously enhanced because his prior conviction for aggravated assault under Florida law does not qualify as a violent felony under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. Section 924(e).
 
The Eleventh Circuit affirmed. The court reasoned that Defendant’s aggravated assault conviction under Fla. Stat. Section 784.021(1)(b) categorically qualifies as a violent felony under the ACCA because, as our precedent in Somers III confirmed, Florida’s aggravated assault statute requires an intentional threat to use violence against another person, regardless of whether it is committed under Section 784.021(1)(a) or (b). See id. at 892, 894, 896. Therefore, Defendant has the requisite three predicate offenses under the ACCA, and the district court did not err in sentencing him as an armed career criminal.

Ali Hamza Ahmad al Bahlul v. USA

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

Docket: 22-1097

Opinion Date: July 25, 2023

Judge: PAN

Areas of Law: Constitutional Law, Criminal Law, International Law, Military Law

Petitioner served as the personal assistant and public-relations secretary to Usama bin Laden, the leader of al Qaeda and mastermind of the 9/11 terrorist attack against the United States. Members of a military commission convicted Petitioner of conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes. The members sentenced Petitioner to imprisonment for life, and the U.S. Court of Military Commission Review (“CMCR”) affirmed. On Petitioner’s first appeal to the DC Circuit, the court upheld the conspiracy charge but vacated the other convictions as unconstitutional under the Ex Post Facto Clause. The CMCR subsequently reaffirmed Petitioner’s remaining conspiracy conviction and life sentence twice. Petitioner asked the court to vacate his conspiracy conviction or, alternatively, to remand his case for resentencing by military commission members.
 
The DC Circuit denied the petition. The court explained that Petitioner could have raised the change in law, or other similar objections, in his initial appeal to the CMCR or during the extensive proceedings since then. He did not. On the most recent remand to the CMCR, he questioned the admissibility of the statements in his opening brief but did not argue that Section 948r barred their admission until his reply. Accordingly, the court wrote that it declined to revisit its prior ruling that the convening authority is an inferior officer because the intervening Supreme Court case cited by Petitioner does not clearly dictate a departure from the circuit’s precedent. The court also upheld his sentence of life imprisonment.

Chava Mark v. Republic of the Sudan

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

Docket: 21-5250

Opinion Date: July 21, 2023

Judge: RAO

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

Appellant and her d her family sued Sudan, seeking compensation for a terrorist attack on their family. The question on appeal is whether we have jurisdiction. Under the Foreign Sovereign Immunities Act, a state sponsor of terrorism may be sued for personal injury arising from acts of terrorism. But in 2020, Congress enacted the Sudan Claims Resolution Act, which stripped the federal courts of jurisdiction to hear most terrorism-related claims against Sudan. Appellants argued that the Act’s jurisdiction-stripping provision is unconstitutional and therefore, that their claims against Sudan may be heard in federal court. The district court dismissed for lack of jurisdiction.
 
The DC Circuit affirmed. The court explained that the Supreme Court has long held that citizens have a constitutional right to access the courts. The court wrote that Appellants challenged Congress’ restoration of Sudan’s sovereign immunity, but these claims simply do not implicate the right to access the courts. Moreover, Appellants’ claims are in tension with the government’s power to establish inferior courts and espouse the claims of its citizens. However, the court modified the district court’s judgment to be a dismissal without prejudice.

Jill Stein v. FEC

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

Docket: 21-1213

Opinion Date: July 21, 2023

Judge: KATSAS

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

The federal government funds certain expenses incurred by presidential candidates at specific times during their primary campaigns. Jill Stein, who ran for President in 2016, contends that a temporal limit on this funding unconstitutionally discriminates against minor-party candidates. Stein also contests an administrative ruling that she forfeited the right to document certain costs of winding down her campaign, which could have offset a repayment obligation that she owed the government.
 
The DC Circuit denied her petition. The court explained that FEC regulations required her to reassert the issue in her written submission for administrative review. Further, Stein argued that the Commission should be estopped from claiming forfeiture because its audit report stated that the winding down costs “estimated” for the period between September 2018 and July 2019 “will be compared to actual winding down costs and will be adjusted accordingly.” The court wrote that it does not read this statement to relieve Stein of her duty to address winding down costs in her request for administrative review, which was filed near the end of that period. The court explained that it recognizes that Stein could not predict the exact amount of future winding down costs. But she could have done much more to alert the FEC that she expected those costs to exceed the estimates in the audit report—and to do so by a substantial amount.

USA v. Louis Wilson

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

Docket: 21-3074

Opinion Date: July 21, 2023

Judge: CHILDS

Areas of Law: Constitutional Law, Criminal Law

Appellant appealed the denial of his motion for compassionate release made pursuant to 18 U.S.C. Section 3582(c)(1)(A). First Step Act of 2018, Pub. L. No. 115-391, Section 602(b)(1), 132 Stat. 5194, 5239 (2018) (codified at 18 U.S.C. Section 3582(c)(1)(A)). He argued that intervening changes in law, in combination with other factors, warrant that his motion be granted.
 
The DC Circuit affirmed the denial of Appellant’s motion for compassionate release. The government maintains that Appellant failed to properly exhaust his administrative remedies as to these additional grounds such that the court may not consider Appellant’s contentions on the merits. The court held that Section 3582(c)(1)(A) is not jurisdictional because Congress did not use express language to make it so. The court explained that Appellant’s change in law arguments cannot constitute extraordinary and compelling reasons, whether alone or in combination with other factors.

California v. Leal

Court: California Courts of Appeal

Docket: C096463(Third Appellate District)

Opinion Date: July 25, 2023

Judge: Robie

Areas of Law: Constitutional Law, Criminal Law

Here, a police officer received information via a radio broadcast from another officer that a juvenile on probation with a firearm restriction likely placed a firearm under the front passenger seat in defendant Hilario Leal, Jr.’s car before defendant got into his car and drove away. Defendant’s car was under constant surveillance from the time of the alleged firearm placement until the searching officer conducted the search. When a search of the passenger compartment of defendant’s car yielded no firearm, the searching officer decided to search the trunk, where he discovered a firearm. Defendant was charged with several offenses and filed a motion to suppress the firearm; the trial court denied the motion. Defendant ultimately pled no contest to being a felon in possession of a firearm. The question presented was whether the search of defendant’s trunk was justified under the automobile exception. The Court of Appeal concluded it was not. "[W]hen an officer has probable cause to believe contraband or evidence of a crime will be found specifically in the passenger compartment of a vehicle (as compared to having probable cause to believe it will be found somewhere in the vehicle), and no other subsequent discovery or information provides further probable cause to believe the evidence will be found in the trunk, an officer’s search of the trunk exceeds the permissible scope of a warrantless search under the automobile exception." Judgment was reversed and the case remanded with directions to set aside the order denying defendant’s motion to suppress, enter an order granting the motion, and allow defendant to move to withdraw his plea.

California v. Lopez

Court: California Courts of Appeal

Docket: E080032(Fourth Appellate District)

Opinion Date: July 25, 2023

Judge: Ramirez

Areas of Law: Constitutional Law, Criminal Law

Defendant Oscar Lopez was convicted of multiple crimes including: first degree murder and willful, deliberate, and premeditated attempted murder. He was sentenced to 141 years to life. In his direct appeal, the Court of Appeal modified the sentence; the Court also reversed conditionally and remanded with directions to consider striking defendant’s prior serious felony conviction enhancement and firearm enhancements. On remand, in October 2022, the trial court struck the prior serious felony enhancement but refused to strike the firearm enhancements. It resentenced defendant to 101 years to life. Defendant appealed again, contending that at resentencing, the trial court erred under various amendments to the Penal Code, all of which went into effect on January 1, 2022. In the published portion of the Court's opinion, the Court addressed his contention that under section 186.22 — as amended by Assembly Bill No. 333 (2021-2022 Reg. Sess.) — there was insufficient evidence to support the gang enhancement to count 5 (unlawful possession of a firearm). To this, the Court held that, because the judgment against defendant was not final, he was entitled to the ameliorative benefits of A.B. 333. However, because the Court reversed solely with respect to the sentence and directed the trial court to resentence defendant, the trial court did not have jurisdiction to reconsider the gang enhancement. "A.B. 333 was simply irrelevant to anything the trial court had jurisdiction to do." In the unpublished portion of its opinion, the Court found no other error.

Coalition on Homelessness v. City and County of San Francisco

Court: California Courts of Appeal

Docket: A164180(First Appellate District)

Opinion Date: July 21, 2023

Judge: Simons

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

In a challenge to the San Francisco Municipal Transportation Agency’s policy of towing safely and lawfully parked vehicles without a warrant based solely on the accrual of unpaid parking tickets, the Coalition argued that the warrantless tows are unreasonable seizures within the meaning of article I, section 13 of the California Constitution and the Fourth Amendment to the U.S. Constitution. The trial court denied a motion for a writ of mandate and declaratory and injunctive relief.

The court of appeal reversed. The challenged warrantless tows are not permissible under the vehicular community caretaking exception to the Fourth Amendment’s warrant requirement. The defendants have not shown that legally parked cars with unpaid parking tickets that present no threat to “public safety and the efficient movement of vehicular traffic” may be towed under that exception. The court rejected an argument that the governmental interest in deterring parking violations and nonpayment of parking fines justifies warrantless tows under the vehicular community caretaking exception. The tows at issue may not be justified by analogy to warrantless property seizures in the forfeiture context.

Estrada v. Super. Ct.

Court: California Courts of Appeal

Docket: B325769(Second Appellate District)

Opinion Date: July 21, 2023

Judge: ZUKIN

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

Petitioner filed a petition for writ of mandate challenging the trial court’s denial of her peremptory challenge. The Second Appellate District denied the petition for failure to demonstrate a prima facie case entitling her to extraordinary relief. After Petitioner filed a petition to review, our Supreme Court stayed all further proceedings pending its review. The court ultimately granted the petition and transferred the matter back to the court with directions to vacate its order denying the petition for writ of mandate and issuing an order to show cause. Petitioner contends that the trial court erred in denying the peremptory challenge because the subsequent lower court proceeding, specifically the subject hearing, constitutes a “new trial” within the meaning of section 170.6, subdivision (a)(2).
 
The Second Appellate District denied the petition. The court explained that there is no indication, despite the constitutional and practical distinctions between a new trial and the subject hearing, that the Legislature intended such a hearing on remand be considered a new trial under section 170.6, subdivision (a)(2). To the contrary, the legislative history of section 170.6, subdivision (a)(2) “does not support the assertion that the Legislature intended to permit a [peremptory] challenge at any hearing on remand in a criminal case.” Thus, section 170.6, subdivision (a)(2), was not intended “to counter every possible situation in which it might be speculated that a court could react negatively to a reversal on appeal.” The court concluded that the hearing conducted after a reversal and remand of a trial court’s order denying a petition for resentencing is not a “new trial” within the meaning of section 170.6, subdivision (a)(2).

P. v. Pickett

Court: California Courts of Appeal

Docket: B320892(Second Appellate District)

Opinion Date: July 24, 2023

Judge: ROTHSCHILD

Areas of Law: Constitutional Law, Criminal Law

Defendant appealed from an order summarily denying his petition to vacate his murder conviction and be resentenced under Penal Code section 1172.6.
 
The Second Appellate District agreed with the trial court that Defendant has not made a prima facie showing for relief under section 1172.6. The court explained that although Defendant’s petition is facially sufficient and thus entitled him to the appointment of counsel, it is devoid of factual allegations concerning the killing of the victim. Defendant does not deny that he was the actual killer, nor does he assert that another person fired the shot that killed the victim or that he acted without the intent to kill. He merely states the legal conclusion that he could not now be convicted of murder because of changes made to the law of murder under Senate Bill No. 1437. Under these circumstances, where Defendant alleged no facts concerning the murder to which he pleaded guilty, the People introduce without objection uncontroverted evidence from the preliminary hearing transcript showing that the Defendant acted alone in killing the victim, and Defendant does not put forth, by way of briefing or oral argument, any factual or legal theory in support of his petition, Defendant has failed to make a prima facie showing for relief under section 1172.6.

People v. G.A.

Court: California Courts of Appeal

Docket: A164980(First Appellate District)

Opinion Date: July 25, 2023

Judge: Fujisaki

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

In 2001, G.A. was charged with lewd acts with a child, sexual battery by restraint, and false imprisonment. Finding G.A. incompetent to stand trial, the court committed G.A. to the Redwood Regional Center. G.A. never regained competency but was released and received services through the Center until 2008. In 2010, G.A. was charged with kidnapping with the intent to sexually assault, rape, annoy, or molest a child under the age of 10 and sexual intercourse or sodomy with a child under the age of 10. Finding G.A. incompetent to stand trial, the court again committed him.

A 2021 petition to extend G.A.’s commitment alleged that G.A. suffers from developmental disabilities and that he represents a danger to himself or to others. A psychologist, who evaluated G.A. several times, calculated G.A.’s I.Q. at 42 and testified that G.A. poses a danger to himself and to others, particularly children. The court continued the commitment.

The court of appeal dismissed an appeal because the commitment order has expired. The court found that Welfare and Institutions Code 6500 does not violate due process by dispensing with the need for proof of a recent overt act of dangerousness but that substantial evidence did not support the finding of G.A.’s danger to others--it was based on the testimony of an expert witness who relied on unsupported assumptions of fact about G.A.’s offenses. The court noted significant ambiguity as to the meaning of “danger to self.”

United Neighborhoods for L.A. v. City of L.A.

Court: California Courts of Appeal

Docket: B321050(Second Appellate District)

Opinion Date: July 25, 2023

Judge: RUBIN

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

The City of Los Angeles (the City) approved a project at 1719-1731 North Whitley Avenue in Hollywood (the Project) that would replace 40 apartments subject to the City’s rent stabilization ordinance (RSO) with a hotel. The City determined the Project was exempt from review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines relating to certain development projects. The relevant guideline addresses what is often referred to as the “infill” exemption or the “Class 32” exemption. Respondent United Neighborhoods for Los Angeles (United Neighborhoods) sought a writ of mandate in the Los Angeles Superior Court, arguing, among other things, that the in-fill exemption does not apply because the Project is not consistent with a General Plan policy concerning the preservation of affordable housing. The trial court granted the writ, effectively halting the Project until the City was to find the Project is consistent with that policy or 148-159 undertakes CEQA review. The City and real parties in interest appeal.
 
The Second Appellate District affirmed the order granting the petition for writ of mandate. The court explained that the City’s suggestion that the Project’s consistency with the Framework Element implies consistency “with the entirety of the General Plan” because of the Framework Element’s foundational role assumes, contrary to authority, the Framework Element stands in perfect harmony with the General Plan. However, the court explained that although it affirms the trial court, it does not suggest that the City was necessarily required to make formal findings that Housing Element policies are outweighed by competing policies favoring the Project.

Willis v. Delaware

Court: Delaware Supreme Court

Docket: 253, 2022

Opinion Date: July 24, 2023

Judge: Karen L. Valihura

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Diandre Willis appealed his conviction following an 18-count indictment for rape, home invasion, kidnapping, intimidation, terroristic threatening, bribery, malicious interference of emergency communications, and breaching the conditions of bond and release. A jury found Willis guilty as to 17 of the 18 charges after the State nolle prossed one count of Kidnapping First Degree. Willis raised one issue on appeal: his constitutional right to due process was violated when the trial judge failed to recuse himself from the trial where that judge previously had signed and approved a search warrant at an earlier stage of the investigation. With respect to this sole issue on appeal, both sides agreed that there were no facts in dispute. The Delaware Supreme Court concluded the superior court judge did not err in determining that his recusal was not required. Therefore, the superior court's judgment was affirmed.

State v. Abdullahi

Court: Maine Supreme Judicial Court

Citation: 2023 ME 41

Opinion Date: July 27, 2023

Judge: Horton

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

The Supreme Judicial Court affirmed Defendant's conviction of unlawful trafficking in scheduled drugs and falsifying physical evidence, entered after a jury trial, holding that Defendant was not entitled to relief on his allegations of error.

Specifically, the Supreme Judicial Court held (1) the trial court did not err in denying Defendant's motion to suppress evidence seized as the result of what Defendant argued was an unlawful arrest; (2) there was no obvious error in the admission of lay opinion testimony by law enforcement officers on certain matters; (3) the record evidence was sufficient to justify the trial court's giving a permissible-inference instruction; and (4) there was no error or abuse of discretion in the denial of Defendant's motion for new trial and for judgment of acquittal.

Commonwealth v. Morris

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12835

Opinion Date: July 25, 2023

Judge: Wendlandt

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

The Supreme Judicial Court affirmed Defendant's convictions other than his unlawful possession conviction, which the Court vacated in light of its recent opinion in Commonwealth v. Guardado, 491 Mass. 666 (2023), holding that Defendant's rights under the Second Amendment and his due process rights were violated as to this conviction because the jury was not instructed that licensure was an essential element of the crime.

Specifically, the Supreme Judicial Court held (1) the trial court did not err in denying Defendant's motion to suppress his statement at the police station on the grounds that police officers impermissibly recorded it without his express consent and that he was not informed promptly of his right to make a telephone call; (2) the prosecutor did not improperly refer to omissions in Defendant's statement to police officers; (3) there was no reason to reduce the degree of guilt or order a new trial; and (4) in light of this Court's recent opinion in Guardado, Defendant's unlawful possession of a firearm conviction must be vacated.

In re Parole of Richard Allen McBrayer

Court: Michigan Supreme Court

Docket: 164311

Opinion Date: July 24, 2023

Judge: Brian K. Zahra

Areas of Law: Constitutional Law, Criminal Law

The Macomb County Prosecutor sought to appeal the Parole Board’s grant of parole to Richard McBrayer, a prisoner under the jurisdiction of the Department of Corrections. The Parole Board intervened. In 1994, McBrayer pleaded guilty of two counts of first-degree criminal sexual conduct involving his stepdaughter when she was 12 to 14 years old. He was sentenced to concurrent terms of 20 to 40 years in prison; the minimum sentences represented the top of the then-controlling judicial sentencing guidelines range. McBrayer became eligible for parole in January 2010 after accumulating disciplinary credits through the years. In 2011, 2015, and 2018, the Parole Board granted McBrayer parole, but the board’s grant of parole was overturned each time after the victim, or the prosecutor, appealed. In 2020, the board again considered McBrayer for, and granted him, parole. McBrayer’s parole-guidelines score of +11, indicated a high probability of parole, and the board found facts to support the grant. The prosecutor again appealed the board’s decision. After reviewing the evidence in the record, the court reversed the board’s grant of parole, reasoning that there had been no improvement in McBrayer’s circumstances from the time he was last considered for parole. In a split unpublished per curiam opinion, the Court of Appeals affirmed the circuit court’s ruling, reasoning that there were substantial and compelling reasons to depart from the parole guidelines—namely, the heinous nature of the crimes, the impact of the crimes on the victim, skepticism about McBrayer’s rehabilitation, and concerns with the efficacy of his parole plans. The Michigan Supreme Court determined the Court of Appeals majority applied the wrong analysis and ignored the discretion that the Legislature has assigned to the Parole Board. Applying the proper analysis, the Supreme Court concluded the Parole Board did not abuse its discretion. The Court therefore reversed the judgment of the Court of Appeals and reinstated the Parole Board’s grant of parole.

Pueblo v. Haas

Court: Michigan Supreme Court

Docket: 164046

Opinion Date: July 24, 2023

Judge: Cavanagh

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

Carrie Pueblo brought an action against her former domestic partner, Rachel Haas seeking joint custody and parenting time for a child whom Haas conceived through in vitro fertilization and gave birth to in 2008, during the parties’ relationship. Haas moved for summary judgment, arguing that because the parties had never married and Pueblo had no biological or adoptive relationship to the child, Pueblo lacked standing to sue and also failed to state a claim for which relief could be granted. The trial court granted the motion and dismissed the case without prejudice. After Haas moved for reconsideration, the trial court dismissed the action with prejudice. Pueblo then filed her own motion for reconsideration, arguing that she had standing as a natural parent, despite the lack of genetic connection, following the Court of Appeals decision in LeFever v. Matthews, 336 Mich App 651 (2021), which expanded the definition of “natural parent” to include unmarried women who gave birth as surrogates but shared no genetic connection with the children. Pueblo also argued the trial court order violated her Fourteenth Amendment rights to due process and equal protection, as well as those of the child. Furthermore, Pueblo argued that any dismissal should have been without prejudice. The trial court denied reconsideration, distinguishing LeFever on the ground that Pueblo had not given birth to the child. Pueblo appealed, reasserting her previous arguments and further asserting that the equitable-parent doctrine should extend to the parties’ relationship, which had been solemnized in a civil commitment ceremony when it was not yet legal in Michigan for same-sex partners to marry. The Court of Appeals rejected these arguments and affirmed the trial court. Because Michigan unconstitutionally prohibited same-sex couples from marrying before Obergefell v. Hodges, 576 US 644 (2015), the Michigan Supreme Court narrowly extended the equitable-parent doctrine as "a step toward righting the wrongs done by that unconstitutional prohibition. A person seeking custody who demonstrates by a preponderance of the evidence that the parties would have married before the child’s conception or birth but for Michigan’s unconstitutional marriage ban is entitled to make their case for equitable parenthood to seek custody." The trial court's judgment was reversed and the case remanded for that court to apply the threshold test for standing announced here.

Woodman v. Department Of Corrections

Court: Michigan Supreme Court

Docket: 163382

Opinion Date: July 26, 2023

Judge: Bolden

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

Two freelance journalists, Spencer Woodman and George Joseph, brought separate actions at the Michigan Court of Claims against the Michigan Department of Corrections (the MDOC), arguing that the MDOC wrongfully denied their requests under Michigan’s Freedom of Information Act (FOIA). Plaintiffs sought video and audio recordings of a prisoner altercation that resulted in the death of inmate Dustin Szot. The MDOC denied their FOIA requests, claiming the records were exempt from disclosure. Plaintiffs and the MDOC both moved for summary judgment. The Court of Claims ordered the MDOC to disclose the audio recording to plaintiffs and to produce the videos for an in camera review. The trial court permitted the MDOC to submit the videos in a format that obscured the faces of the employees and prisoners in the videos to protect those individuals. However, the MDOC provided the unredacted videos for in camera review. The Court of Claims ultimately ordered the MDOC to disclose the unredacted videos to plaintiffs. The MDOC moved for reconsideration, arguing that it did not need to disclose the videos or, alternatively, that it should have been allowed to redact the videos by blurring the faces of the individuals in the videos. The Court of Claims denied the motion but nevertheless permitted the MDOC to make the requested redactions and permitted plaintiffs’ counsel to view both the redacted and unredacted videos. Plaintiffs challenged the trial court’s reduced amount of attorney fees and the denial of punitive damages. The MDOC cross-appealed, challenging only the trial court’s determination that plaintiffs prevailed in full and thus were entitled to attorney fees under FOIA. The Michigan Supreme Court determined plaintiffs prevailed under MCL 15.240(6) because the action was reasonably necessary to compel the disclosure of the records and because plaintiffs obtained everything they initially sought; accordingly, the court was required to award reasonable attorney fees. Furthermore, pro bono representation was not an appropriate factor to consider in determining the reasonableness of attorney fees; accordingly, the Court of Claims abused its discretion by reducing the attorney-fee award to plaintiffs' law firm on the basis of the firm's pro bono representation of plaintiffs.

State v. Hacker

Court: Supreme Court of Ohio

Citation: 2023-Ohio-2535

Opinion Date: July 26, 2023

Judge: Deters

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

The Supreme Court held that indefinite sentencing under the "Reagan Tokes Law," which became effective in March 2019 and requires that for certain felony offenses a sentencing court impose on the offender an indefinite sentence consisting of a minimum and a maximum prison term, is not unconstitutional.

The two appellants in this case - Christopher Hacker and Danan Simmons - were both subject to sentencing under the Reagan Tokes Law. On appeal, Appellants argued that Ohio Rev. Code 2967.271, which allows the Ohio Department of Rehabilitation and Correction to maintain an offender's incarceration beyond the minimum prison term imposed by a trial court, violates the separation of powers doctrine, procedural due process, and the right to a jury trial. The Supreme Court disagreed and affirmed, holding that Appellants failed to rebut the Reagan Tokes Law's presumption of constitutionality in their facial challenge.

State v. Li

Court: Rhode Island Supreme Court

Docket: 21-153

Opinion Date: July 27, 2023

Judge: Prata

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

The Supreme Court vacated the orders of the superior court granting Defendants' motions to suppress evidence of approximately ninety-four pounds of marijuana seized from one defendant's vehicle during a traffic stop, holding that the trial justice erred in granting Defendants' motions to suppress.

Junjie Li was operating a vehicle and Zhong Kuang was in the passenger seat when a law enforcement officer initiated a traffic stop. While conversing with Li, the officer noticed Li began to exhibit nervous behavior and detected an order of marijuana coming from inside Kuang's vehicle. After a dog sniff, officers discovered marijuana. Li and Kuang moved, individually to suppress the marijuana. The trial justice granted the motions to suppress, holding that the extension of the traffic stop beyond its original scope was unreasonable because the officer did not have independent reasonable suspicion to prolong the stop. The Supreme Court vacated the superior court's orders, holding that the trial justice erred in concluding that the officer did not possess reasonable suspicion to prolong the stop based on the totality of the circumstances.

South Carolina v. Perry

Court: South Carolina Supreme Court

Docket: 28167

Opinion Date: July 26, 2023

Judge: Beatty

Areas of Law: Constitutional Law, Criminal Law

Respondent John Perry, Jr. was convicted by jury of the attempted murder of a police officer. During deliberations, the jury requested a recharge on intent. Over the defense's objection, the trial court instructed, "When the intent to do an act that violates the law exists motive becomes immaterial." The court of appeals reversed and remanded for a new trial, concluding the statement improperly instructed the jury on general intent for the crime of attempted murder. While the South Carolina Supreme Court agreed that the trial court erred in giving the jury this recharge, the Supreme Court believed the error was harmless. Accordingly, it reversed the decision of the court of appeals.

Vermont v. Boyer

Court: Vermont Supreme Court

Citation: 2023 VT 40

Opinion Date: July 21, 2023

Judge: Waples

Areas of Law: Constitutional Law, Criminal Law

Defendant Joshua Boyer challenged the denial of his motion to suppress evidence gathered in a consented-to search of his residence. In April 2018, M.B. complained to police that defendant had sexually assaulted her multiple times, including the previous day. M.B. resided in the house where the alleged assaults occurred with defendant, his wife, and other children. Defendant was arrested and released on conditions, including that he should not return to the family home where M.B. was then residing. Several days later, a police detective and an investigator from the Department for Children and Families (DCF) met with M.B. at a friend’s home where she was temporarily staying and asked if there might be DNA evidence present in M.B.’s family home. M.B. said that defendant might have disposed of a condom in her bedroom wastebasket and used a pair of her underwear to wipe himself off after the assault. Knowing that defendant and his wife would likely be away from their home to attend defendant’s arraignment, the detective asked M.B. if she would be comfortable returning to the house to locate this potential evidence. M.B., the detective, and the DCF investigator then went to the home. M.B. went outside and opened a trashcan by the exterior of the house, which she noted “had been gone through.” The detective seized the trashcan. The police later searched the trashcan pursuant to a warrant, which revealed a condom wrapper, stained paper towels, pharmacy receipts, and a rug. M.B. identified the rug as from her bedroom, and a subsequent forensic analysis confirmed the presence of defendant’s semen on the rug. Appealing the denial of his motion to suppress the evidence found at the house, defendant argued fourteen-year-old M.B. lacked authority to consent to the search. Defendant also argued his constitutional speedy-trial rights were violated. Because the Vermont Supreme Court concluded the search was lawful and that defendant’s speedy-trial rights were not violated, it affirmed the trial court’s decision.

In re Det. of A.C.

Court: Washington Supreme Court

Docket: 100,668-3

Opinion Date: July 27, 2023

Judge: Steven González

Areas of Law: Constitutional Law, Government & Administrative Law

NG, CM, and AC were all involuntarily detained under the Washington involuntary treatment act (ITA). NG and CM were confined at Western State Hospital for more than a month after the court orders authorizing their continued civil commitments expired. Even after hospital staff realized the court orders had expired, they continued to hold NG and CM. Staff summoned designated crisis responders to initiate “new” ITA proceedings. AC was detained under a valid court order but was involuntarily medicated at an evaluation and treatment center before a court hearing despite asserting her statutory right to not be. The trial judge continued the hearing for a day to allow AC to appear un- medicated. The Washington Supreme Court held that when the State totally disregards the requirements of the ITA by holding someone despite lacking the authority under the ITA to do so, the ITA petition shall be dismissed. "Beginning 'new' ITA proceedings while someone is being held without authority of law is not an acceptable remedy." In NG’s and CM’s cases, the Court concluded the requirements of the ITA were totally disregarded and therefore reversed the Court of Appeals and remanded to the trial courts for dismissal. In AC’s case, the Court concluded the requirements of the ITA were not totally disregarded and that she was not held without authority of law. In that case, the Court affirmed the courts below.

In re Det. of D.H.

Court: Washington Supreme Court

Docket: 100,716-7

Opinion Date: July 27, 2023

Judge: G. Helen Whitener

Areas of Law: Constitutional Law, Government & Administrative Law

DH was taken into emergency custody on an involuntary 72-hour hold as authorized by former RCW 71.05.153(1) (2019). Instead of filing for a 14-day commitment court order, the State let the 72-hour hold expire and did not release DH, although he had been asking to leave for days. The State kept him detained overnight and evaluated him again the next morning for a new 72-hour hold and filed a petition for a 14-day commitment. At DH’s subsequent 14-day hold hearing, he argued that he was entitled to dismissal because the State had totally disregarded the requirements of the ITA. The court denied the motion to dismiss and granted the new 14-day petition. The Washington Supreme Court held that when the State totally disregards the requirements of the ITA by holding someone despite lacking the authority under the ITA to do so, the ITA petition shall be dismissed. in this case, the State totally disregarded the requirements of the ITA when it failed to release DH at the end of the 72-hour period as mandated by statute. The trial court abused its discretion when it did not so hold and did not dismiss the new petition. Accordingly, the Supreme Court reversed the Court of Appeals and remanded to the trial court for dismissal of the petition and any further proceedings. The Court also granted review of whether failure to inform a committed person about a loss of firearm rights for involuntary treatment constituted a “manifest error affecting a constitutional right” such that the Court should review the unpreserved issue under RAP 2.5(a)(3). Given its resolution of dismissal of the petition the Court declined to reach this issue.

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