Roe v. Healey

Court: US Court of Appeals for the First Circuit

Docket: 22-1740

Opinion Date: August 14, 2023

Judge: William Joseph Kayatta, Jr.

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

The First Circuit affirmed the order of the district court dismissing Plaintiffs' claims that the closure of in-person education due to the COVID-19 pandemic deprived children of the free appropriate public education to which they were entitled and deprived and parents of their right to participate in their children's education, holding that none of Plaintiffs' claims were cognizable in federal court.

Plaintiffs, three children with disabilities and their parents on behalf of a putative class, sued the Governor of Massachusetts, the Commissioner of Schools for Massachusetts, the Massachusetts Department of Elementary and Secondary Education, and several school districts and their superintendents, claiming that the closure of in-person education during the COVID-19 pandemic violated Plaintiffs' rights under the IDEA and that Defendants illegally discriminated against Plaintiffs on the basis of disability in violation the Americans with Disabilities Act and 42 U.S.C. 1983. The district court granted Defendants' motion to dismiss. The First Circuit affirmed, holding that Plaintiffs' claims were properly dismissed in full either because Plaintiffs lacked standing to request the relief they sought, because the claims were moot, and/or because Plaintiffs failed to exhaust administrative remedies.

Sosa v. Mass. Dep't of Correction

Court: US Court of Appeals for the First Circuit

Docket: 20-2051

Opinion Date: August 14, 2023

Judge: Kermit Victor Lipez

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

The First Circuit affirmed the judgment of the district court denying Plaintiff's request for preliminary injunctive relief challenging the restraint procedures used by the Massachusetts Department of Correction (DOC) under the Eighth Amendment and Title II of the Americans with Disabilities Act of 1990 (ADA), holding that the district court did not err in denying relief.

Plaintiff, an inmate who suffered from severe arthritis in his shoulder joints, challenged the restraint procedures used on him by the DOC, including "rear cuffing" with a single standard handcuff, then later rear cuffing using "double cuffs," and still later using custom modified handcuffs. In this action, Plaintiff argued that the unnecessary pain caused by these restraint procedures violated his constitutional and statutory rights and sought an order requiring the DOC to adopt his own proposed restraint procedure. The district court denied Plaintiff's request for preliminary relief. The First Circuit affirmed, holding that the district court properly determined that DOC did not respondent with deliberate indifference to Plaintiff's medical needs and that Plaintiff was unlikely to prevail on the merits of his ADA claim.

United States v. Sylvestre

Court: US Court of Appeals for the First Circuit

Docket: 22-1057

Opinion Date: August 15, 2023

Judge: William Joseph Kayatta, Jr.

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

The First Circuit affirmed the judgment of the district court convicting Defendant, following a jury trial, of various firearm and controlled substance offenses, holding that none of Defendant's challenges on appeal had merit.

Specifically, the First Circuit held (1) the district court correctly concluded that the search warrant leading to Defendant's arrest was clearly supported by probable cause, and therefore, there was no error in the denial of Defendant's motion to suppress; (2) the district court did not err in concluding that the evidence was sufficient to support Defendant's convictions on the firearm charges; and (3) the district court's seventy-two-month sentence on count one was substantively reasonable.

Farhane v. United States

Court: US Court of Appeals for the Second Circuit

Docket: 20-1666

Opinion Date: August 11, 2023

Judge: JOHN M. WALKER, JR.

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

Petitioner appealed the denial of his habeas petition to vacate his 2006 guilty plea, conviction, and sentence. Defendant asserted that he received ineffective assistance of counsel because his lawyer did not warn him of the risks of denaturalization and possible subsequent deportation arising from his guilty plea.
 
The Second Circuit affirmed. The court explained that the Sixth Amendment guarantees criminal defendants the effective assistance of counsel during plea negotiations. Effective assistance includes warning defendants of the “direct” consequences of pleading guilty, such as the offense’s maximum prison term and the likely sentence as set forth in a plea agreement. However, the court explained that it has long held that an attorney need not warn of every possible “collateral consequence of conviction. And such collateral consequences are “categorically removed from the scope of the Sixth Amendment.” Thus, a defendant can only establish an ineffective assistance claim as to a collateral consequence if his attorney affirmatively misadvises him. Failing to warn of the collateral risk alone is not enough. The court explained that the instant appeal is resolved by the straightforward application of this direct/collateral framework. Accordingly, the court held that the distinction remains valid, that it applies to civil denaturalization, and that such denaturalization is a collateral consequence of the conviction, and so is not covered by the Sixth Amendment’s right to effective assistance of counsel.

National Shooting Sports Foundation v. Attorney General New Jersey

Court: US Court of Appeals for the Third Circuit

Docket: 23-1214

Opinion Date: August 17, 2023

Judge: Bibas

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

In 2022, New Jersey passed a law, N.J. Stat. 2C:58-33(a), that empowers only the state’s Attorney General to sue gun-industry members whose “unlawful … or unreasonable” conduct “contribute[s] to a public nuisance in [New Jersey] through the sale, manufacturing, distribution, importing, or marketing of a gun-related product.” It requires industry members to “establish, implement, and enforce reasonable controls” on these activities. The Attorney General has not attempted to enforce the law. Four months after the law was passed, the Foundation, a trade group of gun makers, retailers, and other industry members, filed suit, claiming that the law is preempted by the federal Protection of Lawful Commerce in Arms Act, 15 U.S.C. 7901–7903, and violates due process, the First and Second Amendments, and the dormant Commerce Clause. The Foundation moved for a preliminary injunction, attaching declarations that gunmakers “will continually be at risk of litigation and potential liability unless [they] cease[] doing business.” They gave no factual detail.

The Third Circuit held that the challenges must be dismissed. “Pre-enforcement challenges are unusual,” the plaintiff must show that the stakes are high and close at hand. This suit “falls far short of even the “normal” pre-enforcement challenge.” A brand-new civil tort statute, without more, does not justify a federal court’s intervention.

Azucena Zamorano Aleman v. City of Charlotte

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-2223

Opinion Date: August 16, 2023

Judge: KING

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

This case arises from the September 2017 fatal police shooting of Ruben Galindo Chavez (who used the surname “Galindo”) during an encounter with officers of the Charlotte-Mecklenburg Police Department. The action was initiated by plaintiff Azucena Zamorano Aleman — Galindo’s girlfriend and the mother of his child — both as the administrator of Galindo’s estate and in her individual capacity. Plaintiff asserted five causes of actions, including a 42 U.S.C. Section 1983. The district court awarded summary judgment to the defendants on each of the plaintiff’s claims. The court therein determined that — because it was objectively reasonable for Officer Guerra to shoot Galindo, in that Galindo posed an immediate threat to Guerra and others — Guerra is entitled to qualified immunity on the Fourth Amendment claim. For the same reason, the court awarded summary judgment to Guerra and the City on the assault and battery, wrongful death, and negligent infliction of emotional distress claims. Citing a lack of sufficient evidence, the court also awarded summary judgment to the City on the negligent training claim.
 
The Fourth Circuit affirmed the district court’s summary judgment award to the City on the negligent training claim. The court vacated the award of qualified immunity to Officer Guerra on the Fourth Amendment claim, as well as the related summary judgment awards to Guerra and the City on the balance of the state law claims. Rather than directing the entry of judgment in favor of the plaintiff on any of those claims, the court remanded for further proceedings as to all of them

Berman Justus, Jr. v. Harold Clarke

Court: US Court of Appeals for the Fourth Circuit

Docket: 20-6351

Opinion Date: August 15, 2023

Judge: GREGORY

Areas of Law: Constitutional Law, Criminal Law

In November 2003, Petitioner shot and killed his estranged wife in the front seat of her car while their four-year-old son sat in the back. As part of the same incident, Petitioner also shot and killed his wife’s boyfriend. Petitioner was charged with capital murder, among other charges. The trial court rejected Petitioner’s insanity defense but cited his “severe mental illness” as a mitigating factor in declining to impose the death penalty. Petitioner subsequently attempted to collaterally attack his 2007 convictions and sentence in state court. After his state habeas petitions were dismissed, Petitioner sought habeas relief in federal court. The district court dismissed Petitioner’s 2013 federal habeas petition as untimely. Petitioner moved for reconsideration of the petition’s dismissal pursuant to Federal Rule of Civil Procedure 60(b) on the ground that his “multiple mental health disabilities . . . had prevented him from effectively petitioning the court for habeas relief.” The district court dismissed Petitioner’s Rule 60(b) motion, and this appeal followed.
 
The Fourth Circuit reversed the district court’s order denying Petitioner’s Rule 60(b) motion and remand the case to the district court. The court reaffirmed that Petitioner’s Rule 60(b) motion was timely filed and found that he is entitled to an evidentiary hearing on whether his mental illness during the relevant period entitled him to relief under Rule 60(b)(6) and equitable tolling of the statute of limitations governing his habeas petition. The court explained that Petitioner suffers from a serious mental illness. He has sufficiently alleged and provided evidence supporting the severity and continuing nature of his mental illness to at least justify an inquiry into whether and for how long his illness may have prevented him from filing his habeas petition.

Jeffrey Israelitt v. Enterprise Services LLC

Court: US Court of Appeals for the Fourth Circuit

Docket: 22-1382

Opinion Date: August 16, 2023

Judge: RICHARDSON

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

While working an IT position at Enterprise Services LLC, Plaintiff said he was discriminated against because he has disability—an arthritic big toe. The company says the issues arose because Plaintiff didn’t work well with others, and actually, didn’t work much at all. Plaintiff says the issues arose because of his alleged disability. After he was fired, he brought claims under the Americans with Disabilities Act asserting that Enterprise Services discriminated against him because of his toe and retaliated against him for seeking toe-related accommodations. For the retaliation claim, the district court held that Enterprise Services’ only potentially retaliatory act was firing Plaintiff and allowed him to take that claim to trial. But Enterprise Services moved to strike Plaintiff’s jury-trial demand. The district court granted the motion. Following the bench trial, the district court entered judgment for Enterprise Services on the remaining claim because Plaintiff failed to prove he was fired because he asked for disability accommodations.
 
The Fourth Circuit affirmed. First, while the district court did cite an outdated EEOC regulation when determining he is not disabled within the meaning of the ADA, he is not disabled under any reasonable reading of the ADA. So that disposes of every claim except retaliation. Second, Burlington Northern makes clear that only “significant” harm to an employee constitutes retaliatory adverse action. And only his termination met that threshold. Third, a straightforward reading of Section 1981a(a)(2) shows that an ADA-retaliation plaintiff is not entitled to legal damages and, therefore not guaranteed a jury trial by the Seventh Amendment.

John and Jane Parents 1 v. Montgomery County Board of Education

Court: US Court of Appeals for the Fourth Circuit

Docket: 22-2034

Opinion Date: August 14, 2023

Judge: QUATTLEBAUM

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

The Montgomery County Board of Education adopted Guidelines for Gender Identity for 2020–2021 that permit schools to develop gender support plans for students. The Guidelines allow implementation of these plans without the knowledge or consent of the students’ parents. They even authorize the schools to withhold information about the plans from parents if the school deems the parents to be unsupportive. In response, three parents with children attending Montgomery County public schools challenged the portion of the Guidelines that permit school officials to develop gender support plans and then withhold information about a child’s gender support plan from their parents. Terming it the “Parental Preclusion Policy,” the parents alleged the policy unconstitutionally usurps the parents’ fundamental right to raise their children under the Fourteenth Amendment.
 
The Fourth Circuit vacated the district court’s order and remanded for the case to be dismissed. The court explained that the parents have not alleged that their children have gender support plans, are transgender or are even struggling with issues of gender identity. As a result, they have not alleged facts that the Montgomery County public schools have any information about their children that is currently being withheld or that there is a substantial risk information will be withheld in the future. Thus, under the Constitution, they have not alleged the type of injury required to show standing. Absent an injury that creates standing, federal courts lack the power to address the parents’ objections to the Guidelines. Thus, the court remanded to the district court to dismiss the case for lack of standing.

US v. Kelvin Brown

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-7752

Opinion Date: August 16, 2023

Judge: GREGORY

Areas of Law: Constitutional Law, Criminal Law

On July 30, 2014, a jury convicted Defendant on seven counts, including two counts of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. Section 924(c). At the time of Defendant’s sentencing, his two Section 924(c) convictions carried a five- and twenty-five-year mandatory minimum sentence, respectively. The district court thus sentenced Defendant to thirty years in prison for his Section 924(c) convictions and, together with his other five convictions, to fifty-seven years’ imprisonment total. In July 2020, Defendant moved for compassionate release pursuant to 18 U.S.C. Section 3582(c)(1)(A). Defendant primarily argued that his release was warranted because he was at risk of serious illness from COVID-19 and because, under the First Step Act’s amendment to Section 924(c) sentencing, he would only be subject to a combined ten-year mandatory minimum for his two Section 924(c) convictions if sentenced today. The district court twice denied Defendant’s motion, each time without addressing the disparity between his Section 924(c) sentence and the much shorter mandatory minimums the First Step Act now prescribes.
 
The Fourth Circuit reversed and remanded. The court held that the district court abused its discretion by denying Defendant’s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the Section 3553(a) sentencing factors overwhelmingly favor a sentence reduction. The court explained that because Defendant was subject to a mandatory minimum sentence that is twenty years longer than it would be if he were sentenced today for the same conduct, a sentence reduction is necessary to mitigate the gross disparity between Brown and similarly situated defendants.

US v. Michael Draven

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-7171

Opinion Date: August 11, 2023

Judge: GREGORY

Areas of Law: Constitutional Law, Criminal Law

Following a jury trial, Defendant was convicted—and issued three concurrent life sentences—for conspiracy to commit murder for hire resulting in death and aiding and abetting carjacking resulting in death, and one count of aiding and abetting murder with a firearm in relation to a crime of violence. The first two convictions served as the predicate offenses for Defendant’s third conviction. Defendant now appealed the district court’s denial of his 28 U.S.C. Section 2255 motion to vacate his conviction. He argued that following the Supreme Court’s decisions in United States v. Davis, 139 S. Ct. 2319 (2019), and United States v. Taylor, 142 S. Ct. 2015 (2022), his predicate offenses no longer qualify as crimes of violence under 18 U.S.C. Section 924(c)(3).
 
The Fourth Circuit affirmed. The court concluded that because aiding and abetting carjacking resulting in death remains a valid predicate offense under Section 924(c)(3)(A), Defendant’s 924(j) conviction must stand. The court wrote that that predicate, alone, is sufficient to support his Section 924(j) conviction. Moreover, the court concluded that post-Davis and Taylor, aiding and abetting carjacking resulting in death remains a crime of violence under either Sections 924(c)(3)(A)’s force or elements clause. Due to this, the court wrote, it need not reach the validity of Defendant’s conspiracy to commit murder for hire resulting in death predicate, and the court held that his Section 924(j) conviction stands irrespective of the ambiguity in the general verdict form.

US v. Patrick Mitchell

Court: US Court of Appeals for the Fourth Circuit

Docket: 22-4284

Opinion Date: August 17, 2023

Judge: DEANDREA GIST BENJAMIN

Areas of Law: Constitutional Law, Criminal Law

Defendant pled guilty without a plea agreement to possession of a firearm by a convicted felon. At issue in this appeal is the district court’s application of two enhancements to Defendant’s Sentencing Guidelines offense level. First, the court applied a four-level enhancement for possession of a firearm in connection with another felony offense, specifically felony possession of drugs. Second, the court applied a six-level enhancement for the knowing creation of a substantial risk of serious bodily injury to a law enforcement officer.
 
The Fifth Circuit affirmed the application of the six-level enhancement. As to the four-level enhancement, because the court made no findings connecting Defendant’s possession of a firearm to his felony drug possession, the court vacated Defendant’s sentence and remanded for resentencing. The court reasoned that battery is a general intent crime that requires only the intentional performance of the unlawful act. With these principles in mind, the court concluded the evidence on this record establishes that Defendant’s conduct encompassed the requisite intent to satisfy Section 3A1.2(c)(1)’s assault requirement where Defendant did not simply throw one reflexive punch at Jones but threw repeated punches to his head and arms. Further, the court explained that without deciding whether the application of Section 2K2.1(b)(6)(B) is supported under the facts of the present case, the court restated that the district court must first evaluate whether evidence exists to support a finding that Defendant’s possession of the gun facilitated or had the potential to facilitate his possession of drugs.

Alliance Hippocratic Medicine v. FDA

Court: US Court of Appeals for the Fifth Circuit

Docket: 23-10362

Opinion Date: August 16, 2023

Judge: Jennifer Walker Elrod

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

The United States Food and Drug Administration approved mifepristone for use in 2000 under the brand name Mifeprex. FDA approved a generic version in 2019, and in 2021, FDA announced that it would not enforce an agency regulation requiring mifepristone to be prescribed and dispensed in person. The agency moved that requirement from mifepristone’s conditions for use. The subject of this appeal is those four actions: the 2000 Approval, the 2016 Amendments, the 2019 Generic Approval, and the 2021 Non-Enforcement Decision. Plaintiffs, Medical Organizations and Doctors contend that FDA overlooked important safety risks in approving mifepristone and amending its restrictions. The Medical Organizations and Doctors moved for preliminary injunctive relief. The district court granted the motion but stayed the effective date of each of the challenged actions under 5 U.S.C. Section 705. FDA appealed, as did Intervenor Danco Laboratories, LLC.  
 
The Fifth Circuit vacated in part and affirmed in part. The court vacated in part and concluded that the Medical Organizations and Doctors’ claim as to the 2000 Approval is likely barred by the statute of limitations. Thus, until final judgment, Mifeprex will remain available to the public under the conditions for use that existed in 2016. The court also vacated the portion of the order relating to the 2019 Generic Approval because Plaintiffs have not shown that they are injured by that particular action. The generic version of mifepristone will also be available under the same conditions as Mifeprex. The court affirmed the components of the stay order that concern the 2016 Amendments and the 2021 Non-Enforcement Decision.

Creech Poole v. City of Shreveport

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-30329

Opinion Date: August 17, 2023

Judge: Cory T. Wilson

Areas of Law: Civil Rights, Constitutional Law

Defendant, a corporal with the Shreveport Police Department, shot Plaintiff four times. Plaintiff filed a 42 U.S.C. Section 1983 suit against Defendant. After a bench trial, the district court ruled that Defendant was protected by qualified immunity. Plaintiff’s estate filed a motion for reconsideration or, in the alternative, a new trial. The district court denied the motion without explanation. Plaintiff’s estate timely appealed. Plaintiff’s estate contests the district court’s factual finding that Defendant could not see Plaintiff’s left hand when he opened fire because “Defendant has no credibility.”
 
The Fifth Circuit affirmed. The court explained that when considering qualified immunity at the summary judgment stage, the prior panel of the Fifth Circuit court affirmed that the video potentially supported a finding that Defendant could see that Plaintiff was unarmed, but that panel agreed that the video did not require such a finding. The court explained that given its deferential standard of review, it declines to disturb the district court’s factual determination on that point. The court wrote that based on the district court’s finding that Defendant reasonably believed that Plaintiff was reaching for a weapon, the district court properly held that Defendant was entitled to qualified immunity.

Malik v. DHS

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-10772

Opinion Date: August 15, 2023

Judge: Don R. Willett

Areas of Law: Civil Rights, Constitutional Law

Plaintiff is an immigration attorney whose work often requires international travel. Upon his return from one such trip, the Department of Homeland Security (“DHS”) diverted him to secondary screening after his surname appeared in connection with an investigation involving an arms dealer. DHS seized Plaintiff’s phone, decrypted it, screened the files for privilege, searched the remaining files, and then returned the phone to Plaintiff. Plaintiff sued DHS for declaratory and injunctive relief. The district court dismissed most of Plaintiff’s claims, reasoning that he lacks standing to seek declaratory relief related solely to past events. Next, while the court held that Plaintiff does have standing to seek an injunction requiring DHS to delete the data that it had seized, the court also held that Malik’s constitutional theories have no merit.
 
The Fifth Circuit affirmed. The court explained that DHS found the cell phone on Plaintiff’s “person” because it was part of the “baggage” that he was carrying with him into the United States. The search easily falls within the “plenary authority” that Congress has granted to the Executive branch. Accordingly, the court held that Plaintiff’s statutory argument therefore fails. Next, the court reasoned that the apparent connection between Plaintiff and “an international arms dealer with known ties to the Dallas area” was plenty to create reasonable suspicion—even if Plaintiff is correct that the connection appears dubious in hindsight.

Sauceda v. City of San Benito, et al

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-40904

Opinion Date: August 15, 2023

Judge: James L. Dennis

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

San Benito police officer Hector Lopez approached Plaintiff while Plaintiff was standing in the front yard of his property. Lopez pushed open the gate into Plaintiff’s yard. Plaintiff told Lopez he needed a warrant and pushed back. Within seconds, the parties physically struggled, with the fifty-year-old, disabled Plaintiff brought to the ground. Plaintiff was taken into custody and, after receiving medical attention for his injuries, was charged with several offenses. All were dismissed. He now seeks recompense from Defendants Lopez and the City of San Benito for false arrest and excessive force. The district court granted summary judgment in favor of Defendants.
 
The Fifth Circuit concluded that Plaintiff had raised genuine issues of material fact as to his claim for false arrest against Lopez. The court reversed and remanded concerning the false arrest claim. The court otherwise affirmed. The court explained that because the hot pursuit exception does not apply (and because Lopez has not identified any other applicable exception to the warrant requirement), Plaintiff has raised genuine issues of fact as to whether Lopez had the authority to enter his property to arrest him for disorderly conduct. Further, the court wrote that its conclusion that Lopez lacked authority to make a warrantless entry onto Plaintiff’s property applies equal force to Lopez’s argument that he could have entered the property to arrest Plaintiff or failed to identify. Moreover, a rational factfinder could determine that Lopez arrested Plaintiff before Plaintiff applied any resistance.

Spivey v. Chitimacha Tribe

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-30436

Opinion Date: August 16, 2023

Judge: Andrew S. Oldham

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

Plaintiff is the former Chief Financial Officer of the Cypress Bayou Casino. The Casino is owned by the Chitimacha Tribe of Louisiana. The Chitimacha Tribe is one of four federally recognized Indian tribes in Louisiana. According to the allegations in Plaintiff’s complaint, the Chitimacha tribal council authorized Spivey (as CFO of the Casino) to make a $3,900 bonus payment to the then-newly elected chairman of the tribal council. Plaintiff claimed that several members of the tribal council turned around and reported the bonus payment to federal and state law enforcement. Plaintiff initially sued the Tribe, the Casino, and four tribal council members in federal court under 42 U.S.C. Sections 1983 and 1985 and Louisiana tort law. The district court, over Plaintiff’s objections, again adopted the magistrate judge’s recommendations, denied Plaintiff’s remand motion, and dismissed all Plaintiff’s claims with prejudice.
 
The Fifth Circuit reversed and remanded to state court. The court first wrote that when a district court determines that it lacks subject matter jurisdiction over a removed case, it must remand. The court held, in accordance with the statute’s plain text and the great weight of authority from across the country, that Section 1447(c) means what it says, admits of no exceptions, and requires remand even when the district court thinks it futile. Moreover, the court held that such a dismissal should be made without prejudice.

USA v. Alkheqani

Court: US Court of Appeals for the Fifth Circuit

Docket: 21-10966

Opinion Date: August 17, 2023

Judge: John W. deGravelles

Areas of Law: Constitutional Law, Criminal Law

Defendant appealed the district court’s denial of his motion to suppress on two grounds: (1) that officers lacked reasonable suspicion to initiate a traffic stop of his vehicle, and (2) that Defendant did not voluntarily consent to the search of his home and truck during the stop. Defendant also appealed his sentencing, arguing that the district court erred in relying on the Pre-Sentence Investigation Report (“PSR”) to sentence him under the Armed Career Criminal Act (“ACCA”) rather than any evidence required by Shepard v. United States 544 U.S. 13 (2005).

The Fifth Circuit affirmed the denial of Defendant’s motion to suppress but reversed the district court’s application of the ACCA, vacated his sentence, and remanded for further proceedings. The court explained that the Shepard-documents do not conclusively show that Defendant’s predicate offenses occurred on three separate occasions. Thus, the district court’s error affected a substantial right, and the court wrote that it must vacate the sentence. Further, given the fact that Wooden was decided after the notice of appeal was filed, the court remanded the case for a full resentencing, at which time the Government may introduce any additional Shepard evidence into the record.

USA v. Cuff

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-30694

Opinion Date: August 17, 2023

Judge: Edith H. Jones

Areas of Law: Constitutional Law, Criminal Law

Defendant a federal prisoner, appeals the denial of this 28 U.S.C. Section 2255 motion alleging breach of his plea agreement based on serious allegations against Assistant U.S. Attorneys and ineffective assistance of counsel.
 
The Fifth Circuit disagreed with the district court’s application of the procedural bar to the breach-of-plea agreement claim and reversed and remanded but affirmed its disposition of the ineffective assistance of counsel claim. The court explained that further factfinding is necessary to decide whether Defendant was prejudiced. To show prejudice, “the petition must show 'not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’” Here, the court explained that the government argues that Defendant cannot establish prejudice because the Louisiana USAO did not breach the plea agreement and because Defendant would have pled guilty even if he knew of the second indictment. The court reasoned that the district court is in the best position to determine the veracity of these claims. But the district court grounded its ruling on the cause and never addressed the arguments regarding prejudice. Therefore, the court remanded to the district court with instructions to determine (1) whether Defendant or his counsel knew or should have known of the Texas indictment before Defendant’s sentencing and (2), if not, whether Defendant was prejudiced.

USA v. Massey

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-10478

Opinion Date: August 16, 2023

Judge: Edith H. Jones

Areas of Law: Constitutional Law, Criminal Law

Prisoner, DefendanDefendant, a prisoner, brought an ineffective-assistance-of-counsel claim under 28 U.S.C. Section 2255. His claims rest on the argument that his sentence for the latter offense should have been adjusted to reflect the 13 months he had already spent in prison for his first conviction. Defendant brought this 2255 petition in the Northern District of Texas, faulting his trial counsel for failing to adequately advocate for “back time” at sentencing and faulting his appellate counsel for not raising the issue on appeal. The magistrate judge recommended that relief be denied. The district judge (the same judge who sentenced Defendant in the Northern District) adopted the recommendation, dismissed the claims, and denied a certificate of appealability.
 
The Fifth Circuit granted a certificate of appealability and affirmed. The court explained that it is true that the Sentencing Guidelines call for credit for time served if there are two related offenses. Both parties agree the offenses are related here. Yet the Guidelines are not obligatory, and the judge in the Northern District of Texas instead sentenced Defendant under U.S.S.G. Section 5G1.3(d). Thus, Defendant’s sentences were treated as concurrent from the day of the second sentencing but did not account for the 13 months of back time. None of this means that Defendant’s lawyers were constitutionally deficient. Defendant’s trial counsel argued for the application of U.S.S.G. Section 5G1.3(b) in a memorandum and noted the argument in open court; he was not constitutionally obliged to do more. Defendant’s appellate counsel was not deficient for failing to raise the issue because the district court did not contravene any binding case law.

USA v. Powell

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-10544

Opinion Date: August 15, 2023

Judge: Patrick E. Higginbotham

Areas of Law: Constitutional Law, Criminal Law

Defendant’s sentence was enhanced by enhancement provisions in the Armed Career Criminal Act. Powell appeals, arguing that following the Supreme Court’s decision in United States v. Taylor, a conviction for Texas robbery-by-threat is no longer a predicate offense under that act. Defendant argued that Garrett cannot stand post-Taylor.
 
The Fifth Circuit affirmed. The court explained that attempted Hobbs Act robbery does not satisfy the elements cause. Taylor thus expressly addresses offenses that criminalize attempts that may be undertaken without a use or threat of force. The court explained that in other words, Taylor does not reach the crime at issue here and cannot be said to clearly overturn Garrett. Thus, Taylor does not undermine or contravene Garrett’s conclusion that Texas robbery-by-threat constitutes a violent felony.

USA v. Reinhart

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-10103

Opinion Date: August 16, 2023

Judge: Per Curiam

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty, with a plea agreement, to one count of misprision of a felony, to wit: wire fraud. Because of the substantial assistance that he provided the government, the district court sentenced him below the guidelines range to six months of imprisonment. The district court also ordered Defendant to pay $40,254,297.72 in restitution, jointly and severally, with other defendants, pursuant to the Mandatory Victims Restitution Act (“MVRA”). Defendant appealed the district court’s restitution order. The government moved to dismiss the appeal as barred by Defendant’s appeal waiver; that motion was carried with the case, and the case was fully briefed on the merits.
 
The Fifth Circuit vacated the restitution order and remanded for the district court to conduct further fact-finding and to adjust the award if necessary. The court held that Defendant’s appeal fits within an exception to his appeal waiver. The court explained that Defendant’s argument that the district court awarded restitution for losses caused by conduct not encompassed by his offense of conviction or by conduct specified in his guilty plea and for losses that predate his involvement with RDAG is a statutory-maximum challenge. Further, the court left it to the district court on remand to make any additional factual findings necessary to determine the amount of restitution statutorily authorized by the MVRA and to enter a new restitution order in that amount.

USA v. Stanford

Court: US Court of Appeals for the Fifth Circuit

Docket: 22-20388

Opinion Date: August 17, 2023

Judge: Jennifer Walker Elrod

Areas of Law: Constitutional Law, Criminal Law

Defendant was convicted of thirteen financial crimes. Defendant filed a series of pro se motions for compassionate release. This appeal arises from Defendant's third such motion. Defendant asked to be released based on the dangers posed by the pandemic, his close confinement with other prisoners, his age, and his preexisting heart condition. He also states that his wire fraud conviction was wrongful because it was predicated on a purely intrastate wire transmission and that a wrongful conviction is an extraordinary and compelling reason justifying relief. The motion was denied in a brief order shortly after being filed.
 
The Fifth Circuit ordered a limited remand for the district court to explain its reasons. The court explained that the district court’s order does not tell us that the court based its decision on Section 3553(a) factors. It states only that the court “considered Defendant’s motion and the applicable law” and determined that the motion should be denied. The court explained that, therefore, it has no reliable indication of the reason for the court’s decision to deny relief.

Davis v. Jenkins

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-3404

Opinion Date: August 16, 2023

Judge: Karen Nelson Moore

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

Based on a 1983 murder, a three-judge panel convicted Von Clark Davis of aggravated murder and sentenced him to death. On direct appeal, Davis’s sentence was vacated, but on remand, the same three-judge panel again sentenced him to death. The Sixth Circuit subsequently vacated Davis’s death sentence on appeal of his first federal habeas petition. A different three-judge panel again sentenced Davis to death. Davis again petitioned for a writ of habeas corpus. The district court denied the petition.

The Sixth Circuit reversed in part and granted conditional relief on claims that the state violated Davis’s constitutional rights by enforcing his 1984 jury waiver against him at his third sentencing hearing in 2009 and that Davis’s trial counsel provided ineffective assistance at Davis’s 2009 sentencing hearing by failing to move to recuse a judge for bias and in failing to reasonably prepare and present mitigation evidence. The court rejected claims that Davis’s trial counsel provided ineffective assistance by failing adequately to advise him of the collateral consequences of a jury waiver and that Davis’s trial attorneys were constitutionally ineffective in failing to investigate and present mitigating evidence about the circumstances of Davis’s prior conviction, which provided the aggravating circumstance that made him eligible for the death penalty

Johnson v. Sootsman

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-1937

Opinion Date: August 16, 2023

Judge: Murphy

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

While serving a short sentence for domestic violence, Johnson caused a disturbance in a jail’s intake area. Officers were taking Johnson to his cell when he disobeyed orders to slow down. Another officer, Deputy Sootsman, stopped him. After a brief exchange, Johnson stepped in Sootsman’s general direction. Sootsman testified that he viewed this conduct as a threat. In response, he immediately grabbed Johnson’s neck, pushed him against the wall, and took him to the ground to be handcuffed. This force lasted about seven seconds. Investigators found that Sootsman’s actions violated jail policies. Sootsman pleaded guilty to a misdemeanor battery.

Johnson sued Sootsman, citing the Eighth Amendment. The Sixth Circuit affirmed the summary judgment rejection of the claim. Johnson failed to meet the demanding standard of proving that Sootsman used force “maliciously and sadistically for the very purpose of” inflicting pain. Johnson’s claim fails if Sootsman used force out of a belief—even an unreasonable belief—that the force was necessary to control Johnson. The states may impose stricter limits on officers than the Constitution demands, so Johnson may try to seek relief under state tort law.

Keith v. Hill

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-3948

Opinion Date: August 15, 2023

Judge: Raymond M. Kethledge

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

In 1994, Keith and his uncle were charged with cocaine trafficking based on information provided by Chatman, a confidential informant. Weeks later, someone shot six of Chatman’s relatives, killing three of them. A survivor identified Keith as his attacker. An Ohio jury convicted Keith of triple homicide and sentenced him to death.

Keith has filed four federal habeas petitions; three have claimed “Brady” violations. This petition was filed after Keith received the personnel file for Yezzo, a forensic expert who testified at Keith’s trial that she could confirm that the perpetrator’s car had left a partial license plate imprint of the numbers “043” in the snow, matching the license plate on an Oldsmobile driven by Keith’s girlfriend (Davison) and that the tire tracks matched the tires Davison’s grandfather had purchased for the Oldsmobile—though they did not match the tires actually installed on it when the car was found. Yezzo’s file showed that Yezzo’s supervisors, colleagues, and union representatives had expressed concerns about the reliability of her work, even stating that Yezzo would “stretch the truth.” Keith submitted a new forensic analysis that concluded that the snow impressions were not consistent with the Oldsmobile. Ohio state courts again denied relief.

The Sixth Circuit affirmed the denial of relief. Keith cannot show that no reasonable juror today would convict him in light of the “evidence as a whole.” The full record contains significant additional evidence of Keith’s guilt.

Pleasant View Baptist Church v. Beshear

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-6028

Opinion Date: August 14, 2023

Judge: Karen Nelson Moore

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

Churches, private religious schools, affiliated pastors, and the parents of students (on behalf of themselves and their minor children) sued Kentucky Governor Beshear in his individual capacity for alleged violations of their free-exercise rights, their rights to private-school education, and their rights to assemble peacefully and associate freely, based on Beshear’s Executive Order 2020-969, which temporarily barred in-person learning at all private and public elementary and secondary schools in Kentucky in response to a surge in COVID-19 transmission in the winter of 2020.

The Sixth Circuit affirmed the dismissal of the suit on the basis of qualified immunity. Previous orders in cases involving challenges to pandemic-related executive orders did not make “sufficiently clear t[o] a reasonable official” that temporarily mandating remote learning for all elementary and secondary schools— religious and secular alike—ran afoul of the Free Exercise Clause. An “active and vibrant debate on the constitutional question existed at the time.” EO 2020-969 deprived the parent plaintiffs of neither a choice to send their children to private school over public school nor input in their children’s curriculum. The Governor did not violate the plaintiffs’ rights to assemble peacefully or associate freely.

Sandmann v. New York Times Co.

Court: US Court of Appeals for the Sixth Circuit

Dockets: 22-5734, 22-5735, 22-5736, 22-5737, 22-5738

Opinion Date: August 16, 2023

Judge: Jane Branstetter Stranch

Areas of Law: Communications Law, Constitutional Law, Personal Injury

On January 18, 2019, then-16-year-old Sandmann and his classmates, attending the March for Life, had an interaction with a Native American man, Phillips, by the Lincoln Memorial in Washington, D.C. The boys were wearing “MAGA” hats and were impeding Phillips, who was attempting to exit the situation, which was becoming confrontational. A chaperone dispersed the students. Video of the incident went viral, and national news organizations, including the five defendants, published stories about the day’s events and the ensuing public reaction.

Sandmann sued, alleging that the reporting, which included statements from Phillips about the encounter, was defamatory. The district court granted the news organizations’ joint motion for summary judgment, finding that the challenged statements were opinion, not fact, and therefore nonactionable. The Sixth Circuit affirmed. The articles at issue did not “embrace” Phillips’s version of events; they describe a contentious encounter, the meaning of which was hotly disputed by participants and witnesses. The online articles embedded a video of the incident. Whether Sandmann “blocked” Phillips, did not “allow” him to retreat, or “decided” that he would not move aside and “positioned himself” so that he “stopped” Phillips are all dependent on perspective and are not “susceptible” of being proven true or false under the circumstances.

Coleman v. United States

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1678

Opinion Date: August 15, 2023

Judge: Lee

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

In 2013, Coleman was convicted of conspiring to distribute crack cocaine, 21 U.S.C. 841(a)(1), (b)(1)(A), 846. Coleman was sentenced to the then-mandatory term of life imprisonment based on having at least two prior convictions for a “felony drug offense,” section 841(b)(1)(A). The Seventh Circuit affirmed.

Coleman’s pro se motion to vacate his sentence, 28 U.S.C. 2255, asserted that his appointed counsel, Vaupel, was ineffective for failing to inform him of the government’s pretrial 21 U.S.C. 851 Notice of Enhancement, indicating its intention to seek life imprisonment based on his prior Illinois cocaine-related convictions. According to Coleman, had Vaupel shown him this notice, he never would have agreed to go to trial. Vaupel responded that he had repeatedly informed Coleman that he faced a mandatory life sentence and that the government was unwilling to waive the enhancement. Coleman moved to amend his petition to argue that Vaupel was ineffective by failing to argue that Coleman’s convictions did not qualify as “felony drug offenses” because Illinois defined “cocaine” more broadly than federal law. The district court denied Coleman’s section 2255 motion, and his motion to amend as not relating back to his initial pleading and untimely.

The Seventh Circuit reversed. The district court must determine whether Vaupel considered a possible categorical challenge to Coleman’s predicate offenses and, if he did consider it, his reasons for not raising it. Coleman has established that he was prejudiced by counsel’s purportedly deficient performance.

Nelson v. Town of Paris

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2435

Opinion Date: August 16, 2023

Judge: Lee

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Real Estate & Property Law

In 2008, Paris, a small, rural Kenosha County, Wisconsin community, enacted its “Sex Offender Residency Restrictions” ordinance, limiting where certain designated sex offenders could live within the town. The ordinance prohibits designated offenders from living within 6,500 feet of certain protected locations where children are known to congregate and prohibits designated offenders from living within 6,500 feet of any other designated offender. Nelson, a former Paris resident and designated offender, was cited for violating the ordinance’s designated offenders restriction. His suit under 42 U.S.C. 1983, argued that the ordinance—both facially and as applied—violated his constitutional right to substantive due process and Article I’s prohibition on ex post facto laws.

The Seventh Circuit affirmed, in part, summary judgment in favor of Paris, noting that Nelson conceded that the “protected locations” ordinance is rationally related to Paris’s legitimate interest in protecting children. Paris’s restriction prohibiting designated offenders from living within 6,500 feet of protected locations does not violate the Constitution’s Ex Post Facto Clause because it is not “so punitive either in purpose or effect” as to negate Paris’s nonpunitive intent for the restriction. The court remanded the question of Paris’s restriction prohibiting designated offenders from living within 6,500 feet of each other.

St. Augustine School v. Underly

Court: US Court of Appeals for the Seventh Circuit

Dockets: 22-2846, 22-2786

Opinion Date: August 14, 2023

Judge: Diane Pamela Wood

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

In 2015, the Forro children attended St. Augustine, a self-identified Catholic school in Hartford, Wisconsin. Wisconsin provides transportation benefits for parents who send their children to private sectarian schools, Wis.Stat. 121.54. The school district and the state superintendent of public instruction denied the Forros' request because transportation was being provided to St. Gabriel, another Catholic school in the area. The law stipulates that only one school from a single organizational entity in each “attendance area” may qualify for benefits. While both claim an affiliation with Catholicism, the two schools are not affiliated with one another in other significant ways. St. Augustine and the Forros sued. Several years of litigation ensued, including a trip to the U.S. Supreme Court, two published Seventh Circuit opinions, and a Supreme Court of Wisconsin opinion, after which the Seventh Circuit concluded that the denial of transportation benefits violated Wisconsin law because it rested on an improper methodology for determining affiliation between two schools of similar faith.

After noting that certain state law claims had been waived and that the federal constitutional issues did not require resolution, the Seventh Circuit affirmed that a declaratory judgment remains in effect against the Superintendent and the School District. The district court may decide what attorneys’ fees the plaintiffs should be awarded, if any, given that they have prevailed only in obtaining declaratory relief under state law.

Tully v. Okeson

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2835

Opinion Date: August 15, 2023

Judge: Kenneth Francis Ripple

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

Indiana law allows 13 categories of voters, including “elderly” voters—those 65 or older--to vote by mail. Because of the COVID-19 pandemic, the Indiana Election Commission extended absentee-voting privileges to all registered Indiana voters for the June 2020 primary but did not renew that order for the November general election. Indiana voters who were allowed to vote absentee in the primary, but who do not otherwise qualify for absentee voting, unsuccessfully sought a preliminary injunction requiring Indiana to permit unlimited absentee voting, citing the Twenty-Sixth Amendment and the Equal Protection Clause. Weeks before the 2020 general election, the Seventh Circuit (Tully I) affirmed, finding that the plaintiffs had not made a strong showing of likelihood of success on the merits in light of Supreme Court precedent holding that the right to vote does not include a claimed right to receive absentee ballots.

Returning to the district court, the plaintiffs abandoned their Fourteenth Amendment claim. The court concluded that Tully I constituted controlling authority. The Seventh Circuit affirmed on different grounds. Given the circumstances under which Tully I was issued, that decision does not constitute the law of the case and is not binding. Considering the merits anew, the court held that Indiana’s granting the opportunity to vote by mail to elderly voters does not abridge the right to vote of those under 65 and does not violate the Twenty-Sixth Amendment.

United States v. Alexander

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2802

Opinion Date: August 11, 2023

Judge: ROVNER

Areas of Law: Constitutional Law, Criminal Law

ShotSpotter devices alerted to possible gunshots on Chicago’s west side. Police officers began monitoring the area, using remote-controlled cameras, which had been positioned in high-crime locations. They saw a large group congregating on that block and a man handing a gun to Alexander. Alexander held the gun openly for several seconds before concealing it in his waistband. The officers who saw the hand-off went to the scene. When they arrived, Alexander turned away and stepped behind another man, then pushed against a fence that was blocking his way. Soon his arms were grabbed by the officers, who handcuffed and frisked him. One officer felt an L-shaped object in Alexander’s waistband and retrieved a loaded gun. Alexander was charged with possessing a firearm after being convicted of a felony, 18 U.S.C. 922(g)(1).

The Seventh Circuit affirmed the denial of his motion to suppress. Because it was not obvious at which point Alexander was arrested, the court employed the probable cause standard. Probable cause exists when an objectively reasonable officer—with the same information known by the arresting officer—would believe there is a probability or substantial chance of criminal activity. Even if the officers did not know that Alexander had a felony conviction or lacked a concealed-carry license, they had probable cause to believe that he violated the Illinois Firearm Concealed Carry Act. Objectively reasonable officers could infer criminal activity from their knowledge that he possessed a gun and his furtive movements.

United States v. Gunter

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-1546

Opinion Date: August 11, 2023

Judge: ROVNER

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

Gunter and Grommet participated in a conspiracy to deliver methamphetamine, including a controlled purchase of actual methamphetamine from Gunter by law enforcement agents. A September 17, 2019 indictment charged Gunter and Grommet of conspiring to distribute and possessing with intent to distribute at least 50 grams of methamphetamine, 21 U.S.C. 841(a)(1), (b)(1)(A), 846. Gunter was arrested on July 2, 2020. The court set an initial trial date of August 31, 2020. Over the next 23 months, the trial was repeatedly rescheduled. Gunter first requested continuances; later continuances were at the request of Grommet, who was evaluated for competency and whose lawyer subsequently died. When Gunter eventually (unsuccessfully) sought severance, he did not cite Speedy Trial Grounds.

Days before trial, Gunter unsuccessfully moved to dismiss the indictment alleging a violation of his Sixth Amendment speedy trial rights. The Seventh Circuit affirmed Gunter’s conviction after considering the length of and reasons for the delay, whether the defendant asserted his right to a speedy trial, and any prejudice the defendant suffered. Although Gunter first moved to dismiss the indictment on the basis of his right to a speedy trial immediately before trial, he opposed motions for continuances and asserted his desire for a speedy trial numerous times. The delays could not be attributed to the government. Gunter made no argument that he experienced any prejudice from the delay, and no strong showing of prejudice is obvious in the record.

Aarin Nygaard v. Tricia Taylor

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2277

Opinion Date: August 15, 2023

Judge: KELLY

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

Petitioner filed a petition for a writ of habeas corpus in the District of South Dakota challenging the Cheyenne River Sioux Tribal Court’s exercise of jurisdiction in a custody matter involving his minor daughter, C.S.N. Petitioner claimed that the Tribal Court’s refusal to recognize and enforce North Dakota state court orders awarding him custody of C.S.N. violated the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. Section 1738A. The district court granted summary judgment to the Tribal Court after concluding that the PKPA does not apply to Indian tribes. Petitioner appealed.
 
The Eighth Circuit affirmed. The court concluded that the PKPA does not apply to Indian tribes. As a result, the Cheyenne River Sioux Tribal Court is not obligated under that statute to enforce the North Dakota court orders awarding custody of C.S.N. to Petitioner. The district court properly granted summary judgment to the Tribal Court. The court further explained that its conclusion that the PKPA does not apply to Indian tribes is further supported by the fact that when Congress intends for tribes to be subject to statutory full-faith-and-credit requirements, it expressly says so.

Ashley Quinones v. City of Edina, MN

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2818

Opinion Date: August 16, 2023

Judge: COLLOTON

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

Officers shot and killed Brian Quinones-Rosario as he approached officers with the knife drawn. His widow as trustee, sued the officers and their employing municipalities. She alleged an excessive use of force that resulted in an unreasonable seizure under the Fourth and Fourteenth Amendments. The district court concluded that the officers did not commit a constitutional violation, and granted judgment for the officers and the municipalities. Plaintiff appealed.
 
The Eighth Circuit affirmed. The court explained that the use of force “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”. Applying those principles, and viewing the facts in the light most favorable to Quinones, the court concluded that the officers’ use of force was objectively reasonable. The court explained that Quinones-Rosario posed an imminent threat of death or serious physical injury to the officers. He aggressively wielded a knife that he refused to drop despite repeated commands to do so. He then charged at the officers with the knife. One officer deployed a non-lethal taser against him, but it had no effect. The officers reasonably believed that Quinones-Rosario posed a serious threat to their safety. The officers fired more rounds when Quinones-Rosario survived the first round of shots and continued to approach the officers with the knife. The court concluded that their actions were a reasonable defensive response under the circumstances.

Judith Steckelberg v. Chamberlain School District

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3658

Opinion Date: August 15, 2023

Judge: KOBES

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

Plaintiffs placed their child AMS at a private academy after the Chamberlain School District did not meet AMS’s needs. A state hearing examiner decided that Chamberlain violated federal law and awarded Plaintiffs costs associated with AMS’s placement at the academy. The district court affirmed.  

The Eighth Circuit affirmed. Chamberlain argued that Plaintiffs weren’t eligible to remove the case from state court to federal court because they weren’t “defendants” under 28 U.S.C. Section 1441(a). The court explained that while Plaintiffs initially sought to recover from Chamberlain, their status changed when Chamberlain sought the state court’s review of the hearing examiner’s decision. At that point, Chamberlain became the plaintiff for removal purposes. Thus, because Plaintiffs were defendants, they were allowed to remove, so the district court didn’t err in denying remand. Further, the court explained that giving due weight to the outcome of the administrative proceedings, it concludes that Chamberlain denied AMS a FAPE.

United States v. Adrian Weems

Court: US Court of Appeals for the Eighth Circuit

Docket: 23-1245

Opinion Date: August 11, 2023

Judge: LOKEN

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to conspiracy to distribute methamphetamine in violation of 21 U.S.C. Sections 841(a)(1), 841(b)(1)(A), and 846. He was sentenced to 120 months’ imprisonment followed by five years of supervised release. One special condition of supervised release required him to participate in a sex offender treatment program. At sentencing, the district court1 overruled Defendant’s objection to this special condition because the government advised that he “had just been released from prison in 2014 for violating the terms of his Sex Offender Registry.” Defendant appealed.
 
The Eighth Circuit affirmed and dismissed the appeal as moot. The court explained that the issue in the first revocation proceeding – Defendant’s refusal to attend sex offender treatment -- is behavior “capable of repetition” while “evading review.” Therefore, when the appeal in No. 23-1245 was filed, the court delayed ruling on the mootness issue, anticipating Defendant might challenge reimposition of this special condition in the second revocation sentence. But, the court wrote, he failed to do so. Additionally, neither brief in No. 23-1245 challenges the special conditions of supervised release reimposed in the second revocation sentence, including the sex offender treatment condition. The condition challenged in No. 22- 2610 was reimposed in the second revocation sentence and not challenged in the appeal of that sentence. Therefore, the court dismissed the appeal in No. 22-2610 as moot.

United States v. Alfonso McKenzie

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1954

Opinion Date: August 17, 2023

Judge: Melloy

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

Defendant was sentenced to 30 months of imprisonment after McKenzie pled guilty to failure to register as a sex offender in violation of 18 U.S.C. 2250(a). Defendant appealed, arguing the district court incorrectly applied U.S.S.G. 5G1.3(b) by failing to account for the time he had served in Florida for a related state offense.

Agreeing with Defendant, the Eighth Circuit reversed Defendant's sentence, finding that the district court did not reduce the sentence after finding the time served in Florida was for relevant conduct. Thus, the Eighth Circuit vacated Defendant's sentence and remanded for clarification.

United States v. Casey Crow Ghost

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3447

Opinion Date: August 17, 2023

Judge: ERICKSON

Areas of Law: Constitutional Law, Criminal Law

A jury convicted Defendant of first-degree murder and use of a firearm during a crime of violence that caused death. The district court sentenced Defendant to serve two concurrent life terms of imprisonment. Defendant appealed, asserting the district court committed four errors during trial: (1) when it allowed the government to present evidence under Federal Rule of Evidence 404(b) of Defendant’s jealous behavior toward two other men; (2) when it denied his motion for judgment of acquittal, finding the government had presented sufficient evidence of premeditation; (3) when it sua sponte failed to instruct the jury on imperfect self-defense; and (4) when it denied Defendant’s request to instruct the jury on involuntary manslaughter.
 
The Eighth Circuit affirmed. The court explained that evidence of the manner of killing also gives rise to a reasonable inference of premeditation. Although Defendant provided three different versions of what happened, in one accounting before the jury, Defendant told law enforcement that he aimed and fired at the victim, who was indisputably shot in the back of the head at a distance of at least three feet away. Further, Defendant retrieved that gun from his bedroom closet and shot the victim in the head as she tried to escape. Defendant’s actions after the shooting also point towards premeditation. Because there is ample evidence that supports the jury’s finding that the killing was premeditated, Defendant’s sufficiency of the evidence claim fails.

United States v. Cornell Williams

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3023

Opinion Date: August 16, 2023

Judge: STRAS

Areas of Law: Constitutional Law, Criminal Law

Defendant conditionally pleaded guilty to possessing a firearm as a felon. He argued the district court should have suppressed the gun and shell casing found in his apartment. He challenged the steps the officers took from the moment they entered his apartment.
 
The Eighth Circuit affirmed. The court explained that a suspect who has just illegally used a gun is on a different Fourth Amendment footing than someone who merely possesses one. Moreover, the court wrote that first, when the officers asked Defendant whether they could “look” around “to make sure there’s nobody else in the apartment,” he replied, “[y]es ma’am. You can do whatever you want.” Based on that reply, he consented to at least a protective sweep of the apartment. Second, after Defendant blurted out that there had been suspicious activity outside, it was reasonable for the officers to believe that Defendant had provided consent to look there. Third, consent extended to the retrieval of the gun itself after Defendant confessed to “firing the shot” and admitted that the gun was in a kitchen cabinet.

United States v. Deanah Cheboss

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2617

Opinion Date: August 11, 2023

Judge: James B. Loken

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

Defendant appealed her conviction for having knowingly procured her naturalization contrary to law in violation of 18 U.S.C. Section 1425(a). Defendant made several false statements in procuring her naturalization. The issues on appeal are whether the government met its burden to prove beyond a reasonable doubt that the false statements were material, as that element of the Section 1425(a) offense was defined in Maslenjak v. United States, 582 U.S. 335 (2017), and whether they were made “under oath.”


The Eighth Circuit affirmed. The court explained that Defendant argued that the false statements were immaterial because they did not necessarily establish she lacked good moral character. The court disagreed, reasoning that 8 U.S.C. Section 1101(f) provides that “no person shall be regarded as, or found to be, a person of good moral character who” gives false testimony to obtain an immigration benefit in violation of Section 1101(f)(6). Moreover, Defendant argued that “false testimony” is limited to false statements given verbally under oath. As the government failed to prove beyond a reasonable doubt that the false statements in her N-400 Application for Naturalization were given orally and under oath, the government failed to present sufficient evidence, and we “need not even address materiality.” The court explained that the district court t was free to find the testimony of a USCIS supervisory officer more credible than the contrary opinion of Defendant’s expert, who admitted she had never attended a naturalization interview in Des Moines. Accordingly, the court concluded that a reasonable factfinder could find she acted to obtain immigration benefits for her spouse.

United States v. Jaime Campos

Court: US Court of Appeals for the Eighth Circuit

Docket: 21-3677

Opinion Date: August 15, 2023

Judge: Kelly

Areas of Law: Constitutional Law, Criminal Law

Defendants pleaded guilty to federal controlled substance offenses, and all three appealed their sentences.
 
The Fourth Circuit vacated each defendant’s sentence and remanded for resentencing. The court explained that Texas case law indicates that a defendant can be convicted of “offering to sell a controlled substance” under Section 481.112(a) without having the intent to distribute or dispense drugs. An offer-to-sell conviction is thus categorically broader than an attempt to commit a “controlled substance offense” under the Guidelines. The court explained that the government bears the burden of proving “the facts necessary to establish a sentencing enhancement” by a preponderance of the evidence. Moreover, the court concluded that, once Defendant objected to the factual recitation in the PSR, the government failed to meet its burden as to both the obstruction-of-justice and the violent-threat enhancements.

United States v. Nora Guevara Triana

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-1455

Opinion Date: August 15, 2023

Judge: ERICKSON

Areas of Law: Constitutional Law, Criminal Law

Defendant and co-Defendant were convicted in district court on charges arising out of the kidnapping of Defendant’s minor grandchildren. Defendant appealed her conviction for aiding and abetting kidnapping, and co-Defendant appealed his conviction for being a prohibited person in possession of firearms. Defendant appealed, asserting (1) the district court erred in refusing to admit the full recording of her interview with law enforcement; (2) the district court erred in instructing the jury and preparing the jury verdict form; and (3) the evidence was insufficient to sustain the conviction. Co-Defendant appealed, asserting the district court erred when it (1) declined to grant his motion to withdraw his plea; and (2) committed procedural error.
 
The Eighth Circuit affirmed. The court explained that co-Defendant has not offered a fair and just reason for withdrawing his plea. The district court did not abuse its discretion in denying his motion to withdraw his guilty plea. Moreover, the court wrote that the children’s mother testified that she did not give consent to co-Defendant to take the children and that Defendant told her that co-Defendant was going to take the children because the mother did not love them, did not deserve to be their mother, and was not going to be able to see them ever again. The court found that the record contains more than sufficient evidence for a reasonable jury to find Defendant guilty of aiding and abetting kidnapping.

United States v. Romelle Smith

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2912

Opinion Date: August 11, 2023

Judge: COLLOTON

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to unlawful possession of a firearm as a felon. The district court sentenced Smith to 180 months imprisonment as an armed career criminal under 18 U.S.C. Section 924(e). Defendant appealed an order denying his motion to suppress evidence and challenges his sentence. At issue on appeal is whether the seizure was nonetheless reasonable, and whether evidence discovered in the course of the seizure was admissible in Defendant’s prosecution.
 
The Eighth Circuit affirmed. The court explained that the totality of the circumstances provided the officers with a reasonable, articulable basis to believe that the suspect they were looking for was in the car that they stopped. Here, the Officers had reasonable suspicion that the suspect used a particular cellular telephone. One of the officers received the telephone number from a known informant. The informant had proved reliable by providing accurate information about the suspect’s possession of guns and drugs in the past. The informant reported recently speaking with the suspect at the specified phone number. Officers were armed with a judicial warrant based on a finding of probable cause that the suspect used the target phone number. When officers then determined that the man traveled the same route as the telephone associated with the suspect a reasonable officer could have believed, mistakenly, that the man under surveillance was the suspect. Accordingly, the stop did not violate Defendant’s rights under the Fourth Amendment, and the district court properly denied the motion to suppress.

DEVAUGHN DORSEY V. USA

Court: US Court of Appeals for the Ninth Circuit

Docket: 22-35030

Opinion Date: August 11, 2023

Judge: Graber

Areas of Law: Constitutional Law, Criminal Law

Defendant appealed the district court’s denial of leave to amend his motion to vacate his convictions under 28 U.S.C. Section 2255. He argued that neither witness tampering by attempting to kill a witness nor witness tampering by use of force is a crime of violence as defined by 18 U.S.C. Section 924(c)(3)(A).
 
The Ninth Circuit affirmed. Applying the categorical approach, the panel held that Section 1512, as a whole, is not categorically a crime of violence because it criminalizes conduct that does not necessarily require physical force. The panel then applied the modified categorical approach because Section 1512 contains several, alternative elements of functionally separate crimes that carry different penalties, and the statute therefore is “divisible.” The panel held that Dorsey was convicted under a divisible part of the witness-tampering statute that qualifies as a crime of violence under Section 924(c)’s elements clause: either attempted killing in violation of Section 1512(a)(1) or use of force in violation of 1512(a)(2). The panel also held that the use of physical force in violation of Section 1512(a)(2) is a categorical match with Section 924(c)’s elements clause because it requires proving that the defendant intentionally used physical force against another.

LINDSAY HECOX, ET AL V. BRADLEY LITTLE, ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 20-35813

Opinion Date: August 17, 2023

Judge: Wardlaw

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

Idaho enacted the Fairness in Women’s Sports Act, Idaho Code §§ 33-6201–06 (2020) (the “Act”), a first-of-its-kind categorical ban on the participation of transgender women and girls in women’s student athletics. Elite athletic regulatory bodies also had policies allowing transgender women athletes to compete if they met certain criteria. The Act, however, bars all transgender girls and women from participating in, or even trying out for, public school female sports teams at every age. At issue is whether the federal district court for the District of Idaho abused its discretion in August 2020 when it preliminarily enjoined the Act, holding that it likely violated the Equal Protection Clause of the Fourteenth Amendment.
 
The Ninth Circuit affirmed the district court’s order. The panel held that the district court did not abuse its discretion when it found that plaintiffs were likely to succeed on the merits of their claim that the Act violates the Equal Protection Clause of the Fourteenth Amendment. Because the Act subjects only women and girls who wish to participate in public school athletic competitions to an intrusive sex verification process and categorically bans transgender women and girls at all levels, regardless of whether they have gone through puberty or hormone therapy, from competing on female, women, or girls teams, and because the State of Idaho failed to adduce any evidence demonstrating that the Act is substantially related to its asserted interests in sex equality and opportunity for women athletes, the panel held that plaintiffs were likely to succeed on the merits of their equal protection claim.

ROSCOE CHAMBERS V. C. HERRERA, ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 20-55004

Opinion Date: August 15, 2023

Judge: R. Nelson

Areas of Law: Civil Rights, Constitutional Law

Plaintiff appealed the district court’s order dismissing his First and Eighth Amendment claims brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff alleged that he faced harassment, retaliation, and physical harm. Relevant here, he alleged that prison officer Lieutenant Carmen Herrera repeatedly threatened him, denied him law library access, and assaulted him several times, causing a broken arm and wrist. Plaintiff also alleged that physician’s assistant Jose Esquetini refused to treat his broken bones or take x-rays for six weeks to cover up Herrera’s assaults. Chambers asserts that he was then assaulted by Officer Enrique Velez, who allegedly sprayed him in the mouth and face with mace.
 
The Ninth Circuit affirmed in part, reversed in part, and vacated in part the district court’s order. Affirming the dismissal of the First Amendment retaliation claim, the panel agreed with Plaintiff that the Supreme Court’s decision in Egbert v. Boule explicitly disavowed any Bivens claims based on First Amendment retaliation. The panel held that Plaintiff’s Eighth Amendment failure to protect claim failed to state a claim under Egbert. The panel held that Plaintiff’s Eighth Amendment excessive force claim similarly failed under Bivens, but dismissal of that claim should be with prejudice because even plausible allegations could not constitute a Bivens claim for excessive force under Egbert, and amendment would be futile. The panel determined that it was unclear whether the Bivens claim was viable because the plaintiff failed to allege any facts about his injuries, examination, or treatment.

USA V. JASON SADLER

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-30277

Opinion Date: August 15, 2023

Judge: Collins

Areas of Law: Constitutional Law, Criminal Law

After pleading guilty to a single count of possession of a firearm by a convicted felon in violation of 18 U.S.C. Section 922(g)(1), Defendant argued at his sentencing that the district court should not consider certain prior convictions in determining his sentencing range under the U.S. Sentencing Guidelines. According to Defendant, subsequent case authority made clear that the guilty plea that produced those prior convictions was not knowing and voluntary, thereby rendering those convictions constitutionally invalid. Defendant argued that the district court should not consider his prior 2004 federal convictions in determining his sentencing range under the U.S. Sentencing Guidelines because the subsequent authority in Rehaif v. United States, 139 S. Ct. 2191 (2019), made clear that the guilty plea that produced those prior convictions was not knowing and voluntary, thereby rendering those convictions constitutionally invalid.
 
The Ninth Circuit affirmed. The panel held that, under Custis v. United States, 511 U.S. 485 (1994), neither the Constitution nor any federal statute granted Sadler a right to collaterally challenge the validity of his 2004 convictions in connection with their use in enhancing his sentence in this Section 922(g) prosecution. The panel also held that the Guidelines’ provisions and commentary did not create any such right. Defendant argued that the commentary accompanying Guidelines Section 2K2.1 requires that any conviction that is disregarded for criminal history purposes must also be disregarded in applying Section 2K2.1(a)(4)(A)’s enhanced base offense level for a felon-in-possession offense that follows a conviction for a crime of violence or drug-trafficking crime.

USA V. LEON ECKFORD

Court: US Court of Appeals for the Ninth Circuit

Docket: 17-50167

Opinion Date: August 15, 2023

Judge: Bybee

Areas of Law: Constitutional Law, Criminal Law

Defendant pleaded guilty to aiding and abetting the robbery of two jewelry stores in violation of the Hobbs Act, 18 U.S.C. Section 1951(a). For his crimes, he was sentenced to 11 years imprisonment, including a mandatory minimum sentence for the use of a firearm during a “crime of violence.” On appeal, Defendant argued that aiding and abetting Hobbs Act robbery is not a crime of violence and, therefore, cannot serve as a predicate for his Section 924(c) conviction and mandatory minimum sentence.
 
The Ninth Circuit disagreed and affirmed the judgment of the district court. The court explained that under the “elements clause” of Section 924(c), the phrase “crime of violence” is defined as “an offense that is a felony and . . . has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The phrase “physical force” means violent force or force capable of causing physical pain or injury to another person. The panel applied the “categorical approach,” asking whether the federal felony at issue always requires the government to prove the use, attempted use, or threatened use of force. The panel held that under United States v. Dominguez, completed Hobbs Act robbery is a crime of violence for purposes of Section 924(c). The panel concluded that, even if it were not bound by Dominguez II, it would still find that Dominguez I’s analysis of the completed Hobbs Act robbery was not clearly irreconcilable with Taylor.

Frederick v. Quick

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-6131

Opinion Date: August 14, 2023

Judge: Scott Milne Matheson, Jr.

Areas of Law: Constitutional Law, Criminal Law

An Oklahoma state court jury convicted Darrell Frederick of first-degree murder, attempted assault with a dangerous weapon, and domestic abuse. Based on the jury’s recommendation, the court sentenced Frederick to death for the murder. After his direct appeal and state post-conviction proceedings were unsuccessful, Frederick filed a habeas corpus application in federal court under 28 U.S.C. § 2254. The district court denied relief. The Tenth Circuit Court of Appeals granted a certificate of appealability (“COA”) on his claims that appellate counsel provided ineffective assistance and that there was cumulative error. Finding no reversible errors, the Tenth Circuit affirmed the denial of habeas relief.

Pharmaceutical Care v. Mulready, et al.

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-6074

Opinion Date: August 15, 2023

Judge: Gregory Alan Phillips

Areas of Law: Constitutional Law, ERISA, Health Law

In 2019, the Oklahoma legislature unanimously passed the Patient’s Right to Pharmacy Choice Act. In response to the Act’s passage, the Pharmaceutical Care Management Association (PCMA), a trade association representing PBMs, sued to invalidate the Act, alleging that the Employee Retirement Income Security Act of 1974 (ERISA), and Medicare Part D, preempted the Act. The district court ruled that ERISA did not preempt the Act but that Medicare Part D preempted six of the thirteen challenged provisions. PCMA appealed the court’s ERISA ruling on four provisions of the Act and the court’s Medicare Part D ruling on one provision. After its review, the Tenth Circuit determined ERISA and Medicare Part D preempted the four challenged provisions, and therefore reversed.

United States v. Old Rock

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-4047

Opinion Date: August 11, 2023

Judge: Michael R. Murphy

Areas of Law: Constitutional Law, Criminal Law

In 2017, defendant-appellant Winter Rose Old Rock pleaded guilty to voluntary manslaughter. After completing her prison sentence, she began serving a three-year term of supervised release. Fourteen months later, she committed several violations of the terms of her release. Pursuant to 18 U.S.C. § 3583(e)(3) and (h), the district court revoked her supervision and sentenced her to time served and thirty-one months of post-release supervision. Relying on the Supreme Court’s decision in Apprendi v. New Jersey, Old Rock objected to the new term of supervised release, arguing the term unconstitutionally exceeded the thirty-six-month maximum set out in § 3583 when combined with the post-release supervision she already served. The district court rejected this argument, citing a lack of precedent supporting the application of Apprendi to standard supervised release revocations. To this, the Tenth Circuit agreed: “Our caselaw illustrates that § 3583 authorizes terms of supervision upon revocation that cumulatively surpass the statutory maximum when combined with the defendant’s prior time served on supervision.” The Court therefore affirmed the district court’s judgment. The Court also determined that despite Old Rock’s failure to timely file a notice of appeal, the government forfeited its request for dismissal by not complying with 10th Cir. R. 27.3.

United States v. Warrington

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-7003

Opinion Date: August 11, 2023

Judge: Stephanie Kulp Seymour

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

Defendant-appellant Edmond Warrington was charged in Oklahoma state court after he engaged in sexual activity with his mentally disabled, 18-year-old adopted niece. When the U.S. Supreme Court decided McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), the federal government took over prosecution for the alleged sexual abuse. The district court denied a motion to suppress inculpatory statements Warrington made to federal agents during transport from state to federal custody. Warrington proceeded to trial, where he was convicted by a jury of three counts of sexual abuse in Indian Country and sentenced to 144 months’ imprisonment on each count, to run concurrently. The court also imposed a $15,000 special assessment under the Justice for Victims of Trafficking Act of 2015 (“JVTA”), a penalty of $5,000 for each count of conviction. On appeal, Warrington argued: (1) the district court erred in denying his suppression motion because the agents questioned him in violation of the Sixth Amendment; and (2) the court plainly erred in imposing the JVTA assessment on a per count basis instead of imposing one $5,000 penalty in the case. The Tenth Circuit concluded the Sixth Amendment right to counsel had not yet attached in the federal proceeding and, in any event, Warrington voluntarily waived his right to counsel after receiving a Miranda warning, therefore, the district court did not err in denying the motion to suppress. Warrington’s second issue raised was an issue of first impression for the Tenth Circuit, and the Court concluded the trial court did not commit plain error.

USA v. Antarious Caldwell, et al

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-15024

Opinion Date: August 16, 2023

Judge: WILLIAM PRYOR

Areas of Law: Constitutional Law, Criminal Law

This appeal arises from a multiple-count indictment against dozens of members of the Gangster Disciples. Five of them, Alonzo Walton, Kevin Clayton, Donald Glass, Antarious Caldwell, and Vancito Gumbs, appeal their convictions and sentences following a joint trial. Some argue that the district court should have suppressed wiretap evidence against them. Some argue that their enhanced sentences under the Racketeer Influenced and Corrupt Organizations Act violate the Sixth Amendment because the jury failed to find that the conspiracy involved murder. Several argued that the district court abused its discretion when it refused to play a video about unconscious bias, excluded a professor of social work’s expert opinion testimony, secured the defendants with ankle restraints at trial, allowed the prosecution to store evidentiary firearms in the courtroom, and questioned a witness. And they also brought individual procedural and sentencing challenges.
 
The Eleventh Circuit vacated one of Caldwell’s convictions and his sentence due to an intervening precedent but otherwise affirmed the convictions and sentences. The court explained that Count 17 of the indictment contemplated that the offense of attempted Hobbs Act robbery is a “crime of violence” within the meaning of the Armed Career Criminal Act. But the Supreme Court recently held in Taylor that attempted Hobbs Act robbery is not a “crime of violence” under section 924(c).  Thus, the court held that it must vacate Caldwell’s conviction. The court remanded or the district court to resentence Caldwell for his remaining counts of conviction.

USA v. Hannibal Moore

Court: US Court of Appeals for the Eleventh Circuit

Docket: 21-12291

Opinion Date: August 11, 2023

Judge: ED CARNES

Areas of Law: Constitutional Law, Criminal Law

Defendant was charged with one count of being a felon in possession of a firearm. He had a two-day trial at which he testified, asserting a justification defense. The jury rejected that defense, finding him guilty. The district court denied his motion for a judgment of acquittal or a new trial. After calculating a guidelines range of 100 to 120 months, the court sentenced him to 80 months imprisonment. He challenged his conviction and his sentence.
 
The Eleventh Circuit affirmed. The court explained that the district court did not clearly err in finding that Defendant had not established self-defense as a justification for shooting the victim. The court explained that the evidence showed that Defendant escalated the situation and interposed himself when his girlfriend was attempting to handle it. He claimed his actions were justified because he had to defend himself, but it was Defendant who had insisted that his girlfriend get her gun when she did not want to; she wanted to see who was outside and resolve the situation herself. The court reasoned that Defendant also could have called 911 and asked that law enforcement officers be sent to the house. It wasn’t clear error for the district court to find that Defendant, a convicted felon, had possessed a firearm in connection with another felony offense.

USA v. Zachary Bird

Court: US Court of Appeals for the Eleventh Circuit

Docket: 22-10947

Opinion Date: August 17, 2023

Judge: Charles R. Wilson

Areas of Law: Constitutional Law, Criminal Law, White Collar Crime

A jury convicted Defendant of illegally structuring two separate land-sale contract payments of around $270,000 each. On appeal, Defendant argued that there was insufficient evidence to support his convictions. Defendant asserts that the court should vacate his conviction due to a plainly erroneous jury instruction.
 
The Eleventh Circuit affirmed. The court wrote that in reviewing the record to determine how a jury might reasonably conclude that he structured deposits to avoid the $10,000 reporting requirement, it appears that Defendant made 22 cash deposits below $10,000 over seven days to satisfy the first payment. Then, Defendant made 38 cash deposits under $10,000 over the course of around seven and a half months to satisfy the second payment. there is sufficient evidence to support Defendant’s convictions. The court explained that viewing the evidence in the light most favorable to the verdict, it concludes that a “reasonable construction of the evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt.”
 
Further, the court concluded that the instructions properly listed the statutory elements for structuring in violation of 31 U.S.C. Section 5324(a)(3), and the jury concluded that the government satisfied its burden of proof on these points. That the government could not prove Bird intended to evade Form 4789 specifically does not undermine the soundness of the verdict. Finally, the court explained that Defendant and the government jointly proposed the jury instructions that the district court ultimately used. By supplying the instructions, Defendant invited any purported error. Consequently, the court declined to review his challenge to the jury's instructions.

Frederick Douglass Foundation, Inc. v. DC

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

Docket: 21-7108

Opinion Date: August 15, 2023

Judge: RAO

Areas of Law: Civil Rights, Constitutional Law

Thousands of protesters flooded the streets of the District to proclaim “Black Lives Matter.” Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk. The markings were ubiquitous and in open violation of the District’s defacement ordinance, yet none of the protesters were arrested. During the same summer, District police officers arrested two pro-life advocates in a smaller protest for chalking “Black Pre-Born Lives Matter” on a public sidewalk. The organizers of the smaller protest, the Frederick Douglass Foundation and Students for Life of America (collectively “the Foundation”), sued. The Foundation alleged violations of the First and Fifth Amendments, conceding the defacement ordinance was facially constitutional but arguing the District’s one-sided enforcement of the ordinance was not. The district court dismissed the complaint. Concluding the First Amendment and equal protection claims were essentially the same, the district court held the Foundation had failed to adequately allege discriminatory intent, which the court considered a necessary element of both claims.
 
The DC Circuit affirmed the district court’s dismissal of the Foundation’s equal protection claim because the Foundation has not plausibly alleged invidious discrimination by District officials. Discriminatory motive, however, is not an element of a First Amendment free speech selective enforcement claim. The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government’s motive. The court held the Foundation has plausibly alleged the District discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance. Therefore, the court reversed the dismissal of the Foundation’s First Amendment claim and remanded for further proceedings.

People v. Schuller

Court: Supreme Court of California

Docket: S272237

Opinion Date: August 17, 2023

Judge: Groban

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

The Supreme Court reversed the decision of the court of appeal affirming Defendant's conviction of first-degree murder, holding that when the record contains substantial evidence of imperfect self defense, the trial court's failure to instruct on that theory amounts to constitutional error and is subject to review under the federal Chapman standard. See Chapman v. California, 386 U.S. 18 (1967).

On appeal, Defendant argued that the trial court committed harmful error in denying his request for an instruction on imperfect self-defense. The court of appeals affirmed, concluding that the trial court erred but that the error was subject to the "reasonable probability" standard for evaluating prejudice set forth in People v. Watson, 46 Cal.2d 818 (1956) and that Defendant suffered no prejudice. The Supreme Court reversed, holding (1) the form of misconstruction in this case precluded the jury from making a finding on a factual issue necessary to establish the element of malice, thus qualifying as a federal error; and (2) the court of appeal's harmless error analysis did not comport with the standards for evaluating prejudice under Chapman.

Alliance San Diego, et al. v. City of San Diego

Court: California Courts of Appeal

Docket: D080199(Fourth Appellate District)

Opinion Date: August 11, 2023

Judge: Huffman

Areas of Law: Constitutional Law, Election Law

The City of San Diego (the City) placed a citizen’s initiative, Measure C, on the ballot for the March 2020 general and special election. Ballot materials for the measure stated that it required a two-thirds majority to pass, but by March 2020, at least two trial courts in San Francisco concluded that citizens’ initiatives required only a simple majority. Measure C ultimately received 65.24% of the votes cast. The City thereafter adopted a resolution that stated the number of votes for and against measure C and identified that there was a split of authority about the voter threshold requirement for a citizens’ inintiative, but did not state whether Measure C passed. By April 2021, several appellate courts concluded citizens’ initiatives required a simple majority, and the City adopted a resolution that Measure C had passed. Various groups sued to challenge the adoption of Measure C, calling into question the voter threshold required for its passage. The Court of Appeal determined the application of a simple majority voting requirement did not violate due process or constitute “fraud on the voters,” even though ballot materials and the ordinance placing the measure on the ballot stated a two-thirds majority applied.

P. v. Meza

Court: California Courts of Appeal

Docket: B318310S(Second Appellate District)

Opinion Date: August 17, 2023

Judge: PERLUSS

Areas of Law: Constitutional Law, Criminal Law

Defendants were identified as suspects of murder after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of his murder. After their motions to quash and suppress evidence were denied, Defendant pleaded guilty to first-degree murder; and co-Defendant pleaded no contest to second-degree murder. On appeal, Defendants contend the trial court erred in denying their motion to suppress, arguing the geofence warrant violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution and did not comply with the California Electronic Communications Privacy Act of 2016 (CalECPA).
 
The Second Appellate District explained that although the geofence warrant satisfied the requirements of CalECPA, the court agrees it lacked the particularity required by the Fourth Amendment and was impermissibly overbroad. Nonetheless, the court affirmed the convictions under the good faith exception to the exclusionary rule established by United States v. Leon (1984) 468 U.S. 897 (Leon). The court explained that given the dearth of authority directly on point and the novelty of the particular surveillance technique at issue, the officers were not objectively unreasonable in believing the warrant was valid, even if the issue, upon close legal examination, is not a particularly close one.

P. v. Super. Ct. (Mitchell)

Court: California Courts of Appeal

Docket: B326653(Second Appellate District)

Opinion Date: August 16, 2023

Judge: Yegan

Areas of Law: Constitutional Law, Criminal Law

In People v. Bartholomew (2022) 85 Cal.App.5th 775, 778, the Second Appellate District Court’s majority opinion acknowledged, “'No provision of section 17, subdivision (b), authorizes the superior court judge to [determine a wobbler to be a misdemeanor] prior to judgment or a grant of probation.’” But the majority opinion held that “the People have no authority to appeal” the superior court’s pretrial order reducing a felony wobbler to a misdemeanor. The majority rejected the People’s claim that section 1238, subdivision (a)(6) authorizes such an appeal. The People did not raise the issue of whether an appeal is authorized under section 1238, subdivisions (a)(1) and (a)(8).
 
The Second Appellate District disapproved of the holding in Bartholomew. Here, the People petitioned for a writ of mandate directing the superior court to vacate its post-preliminary hearing, pretrial order reducing a felony wobbler to a misdemeanor. The People also filed an appeal. Because the superior court’s order is both unauthorized and appealable, the court issued the requested writ. The court directed the Superior Court of Ventura County to vacate its order reducing the felony wobbler to a misdemeanor and to reinstate the felony charge.

Torres v. Super. Ct.

Court: California Courts of Appeal

Docket: C097144(Third Appellate District)

Opinion Date: August 15, 2023

Judge: Elena J. Duarte

Areas of Law: Constitutional Law, Criminal Law

After the Court of Appeal reversed the summary denial of her request for resentencing, Petitioner Elvira Torres sought on remand to peremptorily challenge the judge who had originally denied her request for resentencing, when he was again assigned to hear the request. Petitioner’s challenge was essentially denied as untimely, and she asked the Court of Appeal for a writ of mandate or prohibition. The Court found remand for further resentencing proceedings held pursuant to Penal Code section 1172.6 did not constitute remand for a “new trial” as contemplated by Code of Civil Procedure section 170.6(a)(2); thus, petitioner’s challenge to the trial judge pursuant to that section was properly denied as untimely.

Idaho v. Bell

Court: Idaho Supreme Court - Criminal

Docket: 49099

Opinion Date: August 15, 2023

Judge: Bevan

Areas of Law: Constitutional Law, Criminal Law

In 2019, Officer Pallas was off duty and not in uniform when he noticed defendant-respondent Jonathan Bell at an Albertsons grocery store in Hailey, Idaho. Bell appeared to be unsteady on his feet, was having difficulty walking, and appeared confused. As Pallas watched Bell get into the driver’s seat of his vehicle and begin to drive, he called Officer Murphy, who was Pallas’ training officer and on duty, to report Bell as possibly driving under the influence. Murphy told Pallas to call dispatch, which he did. Pallas gave dispatch a description of the vehicle, the license plate number, and reported that the driver appeared to be intoxicated. The issue this case presented for the Idaho Supreme Court's review centered on the scope of its holding in Idaho v. Clarke, 446 P.3d 451 (2019). There, the Court held that an individual could not be arrested without a warrant for a misdemeanor that was completed outside the arresting officer’s presence. The State of Idaho argued that the “in the presence of the arresting officer” requirement under Clarke could be satisfied by the collective knowledge of more than one officer to establish probable cause. Thus, though the arresting officer here did not witness Bell’s driving pattern for the DUI, the State argued he had sufficient “collective knowledge” from others to carry out the arrest. The magistrate court agreed with this position below and denied Bell’s motion to suppress. However, Bell appealed to the district court, which reversed the magistrate court’s decision, concluding that the Idaho Constitution prohibited a police officer from making a warrantless arrest for a DUI committed outside the officer’s presence, even if the officer had probable cause for that offense through his collective knowledge from another officer. Finding no reversible error in that decision, the Supreme Court affirmed the district court’s decision.

Caulkins v. Pritzker

Court: Supreme Court of Illinois

Citation: 2023 IL 129453

Opinion Date: August 11, 2023

Judge: Rochford

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

The Protect Illinois Communities Act restricts firearms and related items that the Act defines as “an assault weapon, assault weapon attachment, .50 caliber rifle, or .50 caliber cartridge” (assault weapons), 720 ILCS 5/24-1.9(b), and “large capacity ammunition feeding device[s],” section 24-1.10(b)). Certain restrictions do not apply to law enforcement agencies and individuals who complete firearms training as part of their employment in law enforcement, corrections, the military, and private security (trained professionals), and individuals who possessed assault weapons or LCMs (large capacity magazines) before the restrictions became effective.

The circuit court of Macon County entered declaratory judgment, finding that the restrictions facially violated the Illinois Constitution because the exemptions deny the “law-abiding public” equal protection and constitute special legislation. On appeal, opponents of the law alleged for the first time that, regardless of the exemptions, the restrictions violate the second amendment to the U.S. Constitution and violated the three-reading requirement of the Illinois Constitution.

The Illinois Supreme Court reversed. The exemptions neither deny equal protection nor constitute special legislation because plaintiffs have not sufficiently alleged that they are similarly situated to and treated differently from the exempt classes. The plaintiffs expressly waived in the circuit court any independent claim that the restrictions impermissibly infringe the Second Amendment and are jurisdictionally barred from renewing their three-readings claim.

State v. Footman

Court: Maine Supreme Judicial Court

Citation: 2023 ME 52

Opinion Date: August 15, 2023

Judge: Andrew M. Mead

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

The Supreme Judicial Court affirmed Defendant's conviction on charges of domestic violence aggravated assault and domestic violence assault and the trial court's finding of guilty on a charge of violating a condition of release, holding that there was no error or abuse of discretion in the proceedings below.

On appeal, Defendant argued, among other things, that the trial court violated his constitutional right to a representative jury by using the absolute disparity test to determine the racial makeup of the jury venire. The Supreme Judicial Court disagreed and affirmed, holding that the trial court (1) appropriately determined the 1.01% absolute disparity in Defendant's jury venire was insufficient to show underrepresentation; and (2) did not abuse its discretion in denying Defendant's motion to subpoena the grand jurors.

Doe v. Catholic Relief Services

Court: Maryland Supreme Court

Docket: 28m/22

Opinion Date: August 14, 2023

Judge: Biran

Areas of Law: Constitutional Law, Family Law, Labor & Employment Law

The Supreme Court answered three questions certified by the United States District Court for the District of Maryland in this suit brought against Catholic Relief Services-United States Conference of Catholic Bishops (CRS), which follows the teaching that marriage is between one man and one woman.

The district court ruled (1) CRS violated Title VII of the Civil Rights Act of 1964 by revoking Plaintiff's dependent health insurance because he was a man married to another man; and (2) Plaintiff was entitled to summary judgment on his federal Equal Pay Act claim. The court then ordered the parties to confer and file proposed questions of law with respect to the Maryland Fair Employment Practices Act (MFEPA), Md. Code Ann., State Gov't 20-606, and the Maryland Equal Pay for Equal Work Act (MEPEWA), Md. Code Ann., Lab. & Empl. 3-304. The Supreme Court answered (1) the prohibition against discrimination on the basis of sex in MFEPA does not itself also prohibit sexual orientation discrimination, which is separately covered under MFEPA; (2) MEPEWA does not prohibit sexual orientation discrimination; and (3) MFEPA's religious entity exemption applies with respect to claims by employees who perform duties that directly future the core mission of the religious entity.

Commonwealth v. Brum

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13383

Opinion Date: August 10, 2023

Judge: Georges

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

The Supreme Judicial Court affirmed Defendant's conviction of assault and battery by means of a dangerous weapon, holding that portions of the victim's then-girlfriend's grand jury testimony were properly admitted in accordance with the hearsay exemption for prior inconsistent statements.

Prior to trial, the victim's then-girlfriend Shyla Bizarro identified Defendant as the victim's attacker from surveillance video footage and testified to her identification before the grand jury. Prior to her testimony, however, Bizarro revealed that she wished to recant her statements to police and her grand jury testimony. The trial judge admitted substantively the recanted portions of Bizarro's grand jury testimony, including her prior statements of identification. The Supreme Judicial Court affirmed the conviction, holding (1) the portions of Bizarro's grand jury testimony were properly admitted as prior inconsistent statements; (2) portions of Bizarro's grand jury testimony identifying Defendant in the video independently satisfied the hearsay exemption for statements of identification; and (3) there was no merit to Defendant's remaining arguments.

State v. LaRue

Court: Supreme Court of Missouri

Dockets: SC99719, SC99823

Opinion Date: August 15, 2023

Judge: Ransom

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

The Supreme Court affirmed the judgment of the circuit court convicting Caitlyn Williams and Tamara LaRue (together, Parents) of failing to cause their children to attend school on a regular basis in violation of Missouri's compulsory attendance law, holding that Mo. Rev. Stat. 167.031.1 was not unconstitutionally vague as applied in this case.

On appeal, Parents argued, among other things, that the State failed to prove beyond a reasonable doubt both that their conduct was a purposeful or knowing violation of Mo. Rev. Stat. 167.031.1 and that the children's attendance was not sufficiently "regular" to constitute a statutory violation. The Supreme Court affirmed, holding (1) section 167.031.1 was not unconstitutionally vague as applied to the facts of this case; and (2) there sufficient evidence to find that Parents knowingly failed to cause their children to attend school on a regular basis after their children were enrolled.

State v. Price

Court: Montana Supreme Court

Citation: 2023 MT 154

Opinion Date: August 15, 2023

Judge: Gustafson

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

The Supreme Court reversed the judgment of the district court denying Defendant's motion to suppress and dismiss, holding that Defendant's warrantless arrest was unlawful, and therefore, it was error for the district court not to suppress and exclude the evidence discovered as a result of the unlawful search.

Defendant pled guilty to criminal possession of dangerous drugs, reserving his right to appeal the denial of his motion to suppress and dismiss. On appeal, Defendant argued that the underlying arrest was illegal and led directly to the discovery of the incriminating evidence. The Supreme Court agreed and reversed, holding that the district court erred by not suppressing and excluding the evidence at issue.

Crisitello v. St. Theresa School

Court: Supreme Court of New Jersey

Docket: A-63-20

Opinion Date: August 14, 2023

Judge: Solomon

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

The Church of St. Theresa (St. Theresa’s) owned and operated the St. Theresa School. St. Theresa’s terminated art teacher and toddler room caregiver Victoria Crisitello for violating the terms of her employment agreement. That agreement required employees to abide by the teachings of the Catholic Church and forbade employees from engaging in premarital sex; Crisitello, who was unmarried, had become pregnant. In response to her firing, Crisitello filed a complaint against St. Theresa’s alleging employment discrimination in violation of the Law Against Discrimination (LAD), based on pregnancy and marital status. St. Theresa’s countered that its decision to terminate Crisitello was protected by both the First Amendment and the LAD. The New Jersey Supreme Court held: (1) the “religious tenets” exception of N.J.S.A. 10:5-12(a) was an affirmative defense available to a religious entity when confronted with a claim of employment discrimination; and (2) the uncontroverted fact was that St. Theresa’s followed the religious tenets of the Catholic Church in terminating Crisitello. The Court thus concluded St. Theresa’s was entitled to summary judgment and that the trial court correctly dismissed the complaint with prejudice.

New Jersey v. Juracan-Juracan

Court: Supreme Court of New Jersey

Docket: A-32-22

Opinion Date: August 15, 2023

Judge: Pierre-Louis

Areas of Law: Constitutional Law, Criminal Law

In a matter of first impression, the New Jersey Supreme Court addressed whether a criminal defendant must be provided in-person interpreting services, rather than video remote interpreting (VRI) services, at his jury trial. In response to the COVID-19 pandemic, the Court announced amendments to the New Jersey Judiciary’s Language Access Plan (LAP) and expanded the circumstances in which remote interpreting services may be used. Prior to the update, VRI was allowed only for “emergent matters” or “short non-emergent matters of 30 minutes or less.” The 2022 LAP now allows VRI for both “emergent and routine proceedings,” subject to judicial discretion. In 2019, defendant Oscar R. Juracan-Juracan, a native speaker of Kaqchikel -- a language spoken by approximately 450,000 people worldwide -- was charged with several offenses related to an alleged sexual assault. During pre-trial proceedings, he requested a Kaqchikel interpreter and one was provided. The interpreter, however, resided on the West Coast, so he appeared remotely. Additionally, the Kaqchikel interpreter did not speak English, only Kaqchikel and Spanish, so a second interpreter was required to translate to and from Spanish and English. After the court advised counsel that the Kaqchikel interpreter would continue to participate virtually during the jury trial, defendant moved for in-person interpretation services. During the motion hearing, the Kaqchikel interpreter expressed concerns about his ability to provide interpretation services remotely during the trial. The trial court denied defendant’s motion, advising the Kaqchikel interpreter that the court would give him “as much time as you need, understanding the complexities, not only of interpretations, interpreting through two individuals, and also virtually.” The trial court reasoned that proceeding with VRI during the trial was “what’s financially feasible, what’s fair, what’s just.” The Appellate Division denied defendant’s motion for leave to appeal in light of the VRI policy change. The Supreme Court reversed and remanded. "In a criminal jury trial, there is a presumption that foreign language interpretation services will be provided in person, which is consistent with the New Jersey Judiciary’s longstanding practice." The Court set forth guidelines and factors to assist trial courts in deciding whether VRI should be used during criminal jury trials, and it remanded this matter for the trial court to reconsider whether VRI was appropriate in this case after assessing those factors.

Black Elk v. North Dakota

Court: North Dakota Supreme Court

Citation: 2023 ND 150

Opinion Date: August 17, 2023

Judge: Jensen

Areas of Law: Constitutional Law, Criminal Law

The State appeals from a district court’s judgment granting post-conviction relief to Cassandra Black Elk. The State argues the court erred by relying on hearsay testimony and in finding defense counsel’s conduct fell below an objective standard of reasonableness when counsel advised Black Elk she could deal with the not yet disclosed results of an autopsy after her guilty plea had been entered and accepted. The court also determined Black Elk would not have pled guilty but for this improper advice from counsel. The North Dakota Supreme Court found the State failed to object and assert Black Elk’s testimony regarding the statements of her counsel were hearsay and it declined to review the issue on appeal. The district court’s finding of ineffective assistance of counsel met the factual and legal requirements under Strickland. The court’s judgment granting post-conviction relief and vacating Black Elk’s conviction was affirmed.

North Dakota v. Kollie

Court: North Dakota Supreme Court

Citation: 2023 ND 152

Opinion Date: August 17, 2023

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Arthur Kollie was convicted by jury of murder, robbery, and aggravated assault. In June 2021, Jane Doe was walking from her father’s home to her mother’s home in south Fargo when she was attacked in an alley. A truck driver driving through the alley saw Doe lying on the ground, unconscious, with Kollie beside her with one hand on her throat and the other hand pinching her nose. Both Doe and Kollie were covered in bloodstains. The truck driver called 911 and approached Kollie. After the truck driver told Kollie that he “need[ed] to wait for the cops,” Kollie “took off,” fleeing the scene. The medical examiner testified that Doe was stabbed 25 times then strangled. She died three days later. The autopsy report listed the cause of death as asphyxia by strangulation, complicated by multiple sharp force injuries. Kollie argued his constitutional rights to a public trial were violated when the district court held several bench conferences within view of the public, but outside the hearing of the public and without an adequate record being made available. In addition, Kollie argued the district court erred in instructing the jury on the murder count. Finding no reversible error, the North Dakota Supreme Court affirmed.

North Dakota v. Petersen

Court: North Dakota Supreme Court

Citation: 2023 ND 155

Opinion Date: August 17, 2023

Judge: Jerod E. Tufte

Areas of Law: Constitutional Law, Criminal Law

Jered Petersen appealed a criminal judgment entered on a conditional plea of guilty to actual physical control of a vehicle while under the influence of alcohol, reserving the right to appeal the order denying his motion to suppress evidence. He argued law enforcement unlawfully trespassed into his vehicle, violating his right to be free from unreasonable searches and seizures. After review, the North Dakota Supreme Court reversed, concluding law enforcement unlawfully searched Petersen’s vehicle, and remanded for further proceedings.

Wootan v. North Dakota

Court: North Dakota Supreme Court

Citation: 2023 ND 151

Opinion Date: August 17, 2023

Judge: Jensen

Areas of Law: Constitutional Law, Criminal Law

Ronald Wootan appealed a district court’s order granting summary judgment in favor of the State. Wootan was initially charged with murder, attempted murder, terrorizing, reckless endangerment, and preventing arrest or discharge of other duties. As part of a plea agreement, the State moved to amend the murder charge to manslaughter. Wootan applied for post-conviction relief, asserting he was entitled to withdraw his guilty plea due to ineffective assistance of counsel. The State moved for summary judgment. At the scheduled evidentiary hearing the district court determined the motion for summary judgment was untimely. The court exercised its discretion to allow the motion and provided Wootan the appropriate time to respond. Wootan responded to the motion and the court issued an order dismissing Wootan’s post-conviction application finding Wootan had failed to identify a material fact at issue. The North Dakota Supreme Court determined Wootan clearly asserted that, but for counsel’s misinformation about his sentences running concurrently, he would not have entered a guilty plea and instead would have insisted on going to trial. While Wootan did not provide an affidavit after the State moved for summary judgment, Wootan’s verified application for post-conviction relief could be treated as an affidavit to provide evidence to resist summary judgment. The Supreme Court concluded the district court did not err in granting summary judgment on Wootan’s claim asserting his attorney provided ineffective assistance of counsel by failing to reduce the terms of the plea agreement to writing. However, the district court erred in granting summary judgment on Wootan’s claim asserting his attorney provided ineffective assistance of counsel by stating Wootan’s sentences would run concurrently, because Wootan raised a genuine issue as to a material fact. The case was therefore remanded for the district court to hold an evidentiary hearing.

Giroux v. Committee Representing Petitioners

Court: Supreme Court of Ohio

Citation: 2023-Ohio-2786

Opinion Date: August 11, 2023

Judge: Per Curiam

Areas of Law: Constitutional Law, Election Law, Family Law

The Supreme Court denied this action brought by Jennifer Giroux and Thomas Brinkman (collectively, Giroux) challenging an initiative petition to place a proposed constitutional amendment on the November 7, 2023 ballot, holding that Giroux failed to show that Ohio law required invalidating the petition.

At issue was a petition proposing a constitutional amendment entitled "Right to Reproductive Freedom with Protections for Health and Safety." Giroux brought this challenge alleging that the petition did not comply with Ohio Rev. Code 3519.01(A). The Supreme Court denied relief, holding that section 3519.01(A) does not require a petition proposing a constitutional amendment to include the text of the existing statute, and Giroux's challenge failed for this reason.

South Carolina v. Dent

Court: South Carolina Supreme Court

Docket: 28172

Opinion Date: August 16, 2023

Judge: John W. Kittredge

Areas of Law: Constitutional Law, Criminal Law

Charles Dent was convicted and sentenced on one count of first-degree criminal sexual conduct (CSC) with a minor and two counts of disseminating obscene material to a minor. Dent appealed, and a divided court of appeals' panel reversed and remanded for a new trial, finding the trial court erred in failing to give the requested circumstantial evidence charge the South Carolina Supreme Court articulated in State v. Logan, 747 S.E.2d 444 (2013). Because this ruling was dispositive, the court of appeals did not reach Dent's other assignments of error. The Supreme Court granted the State's petition for a writ of certiorari and then reversed: while the Court agreed with the court of appeals' finding of error in the trial court's failure to charge circumstantial evidence pursuant to Logan, the error was harmless. The Court reversed and remanded to the court of appeals for consideration of Dent's remaining issues on appeal.

State v. Carter

Court: Utah Supreme Court

Citation: 2023 UT 18

Opinion Date: August 17, 2023

Judge: Pearce

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

The Supreme Court affirmed the decision of the court of appeals affirming Defendant's conviction of aggravated arson, holding that the court of appeals did not err in concluding that Defendant's counsel did not render ineffective assistance.

On appeal, Defendant argued that his counsel provided ineffective assistance by failing to move for a directed verdict and by failing to object to the testimony of an expert who opined that the structure Defendant had set fire to was habitable. A divided court of appeals affirmed. The Supreme Court affirmed, holding (1) reasonable counsel could have decided to forgot a motion for directed verdict; and (2) the court of appeals correctly concluded that Defendant was not deprived of the Sixth Amendment guarantees.

Freer v. Wyoming

Court: Wyoming Supreme Court

Citation: 2023 WY 80

Opinion Date: August 15, 2023

Judge: Boomgaarden

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

The Supreme Court affirmed Defendant's conviction on twenty-one counts related to his sexual abuse of his daughter AF, holding that Defendant was not entitled to relief on his allegations of error.

At issue was whether the district court abused its discretion in admitting a sexually explicit photograph of AF's mother, Mrs. Freer, and a pornographic father-daughter incest video under Wyo. R. Evid. 404(b). The Supreme Court affirmed, holding (1) the district court did not abuse its discretion in admitting the sexually explicit photograph of Mrs. Freer and the pornographic incest video; (2) Defendant failed to demonstrate that alleged prosecutorial misconduct denied him his right to a fair trial.