The Fourth Circuit’s order on Padilla, as discussed in the SCOTUSblog is interesting for two reasons: 1) it indicates that maybe the 4th thinks that the government was being disingenuous in its arguments that lead it to conclude that Congress told the president it could do whatever the heck it wanted with Americans or anyone, anywhere; and 2) it indicates there is a possibility that, if the government’s motion is granted, mandates must be recalled if the winning party in an appeal acts inconsistently with its arguments. I didn’t think it could biologically happen, but it seems that the Department of Justice has annoyed the Fourth.
And, of course, the big issue is: if the Fourth recalls its mandate, likely any precedential effect evaporates, and if the SCOTUS finds that the issue is moot, the government (it seems) has nothing. (Except a defendant with speedy trial claims in the 11th circuit, and a bunch of inadmissible evidence?)
US v. Dessesaure, No. 04-2170, reverses, in an interlocutory appeal the suppression of evidence obtained “pursuant to a warrant because the warrant affidavit contained information that the police observed when they earlier illegally entered the apartment to ‘freeze’ it and because of material misstatements in that affidavit.” The court finds that had the court ignored the lies of the police, the application would still be true enough to support the validity of the warrant. “From the record, the government suggests to us and the district court that Broderick thought he could enter the apartment to "freeze it" absent exigent circumstances based on vague and broad language in a state court opinion.” But the officers seem to argue that a pre-warrant entry was allowable because of some “exigent circumstances.” Citing Franks v. Delaware, 438 U.S. 154 (1978) and Murray v. United States, 487 U.S. 533 (1988) and reviewing caselaw from other circuits, the First Circuit holds misstatements in the warrant didn’t taint the Magistrate’s decision, and “a reviewing court must excise the offending information and evaluate whether what remains is sufficient to establish probable cause.” In this case, the fact that he was selling drugs out of his car was enough to establish that there were drugs in his house, and “it is clear that objectively the officers were not prompted to seek the warrant by what they saw in the apartment [during their illegal search].”
But, despite the fact that the District Court is reversed, the First condemns the cops for being liars, and notes “There is no question that the police had no right to 'freeze' the Quincy apartment where that meant entering it, looking around, searching, all the while ostensibly waiting for someone to get a warrant.”
Defendants-appellants appeal from judgments of conviction and sentence for conspiring to possess with intent to distribute 1000 grams of heroin and 50 grams of crack cocaine, and 1000 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. We hold that the statement by a defendant in response to a police question before he was read his Miranda rights – that he had a gun in his jacket – falls within the public safety exception to the Miranda warning requirements. We also hold that a district court’s policy of not permitting impeachment of witnesses with the statutory names of a witness’s offenses of conviction violates Fed. R. Evid. 609(a)(1) but that the error was harmless in this case.
Plaintiff Duane Ziemba, a mentally ill inmate housed in Connecticut State prison, brought suit under 42 U.S.C. § 1983, alleging that his constitutional rights were violated when he was placed for 22 hours in total ("four-point") restraints, beaten, and denied needed medical care. Five of the numerous prison officers whom Ziemba sued moved for summary judgment in their favor, but the district court denied the motion as to all but one. Pursuant to the doctrine of qualified immunity (which shields public officials from suit if their actions were objectively reasonable), the remaining four now prosecute this interlocutory appeal. We review the record de novo.
Two of the appellants here, former Connecticut Department of Corrections Commissioner John Armstrong and Prison Warden Giovanny Gomez, were not personally involved in the incident in issue; their liability, if any, must be premised on the theory that they, as supervisors, either exhibited deliberate indifference to what was going on (by failing to act on information indicating unconstitutional acts were occurring) or were grossly negligent in failing to supervise the subordinates who committed such wrongful acts.
As to Armstrong, Ziemba has failed to provide any evidence that would support a jury finding that Armstrong exhibited deliberate indifference to Ziemba’s constitutional rights or was grossly negligent in training the subordinates who allegedly violated those rights. Armstrong was not informed of the restraint of Ziemba and was totally unaware of any beatings until long after the fact. Although there is evidence that Armstrong was informed that prison guards at a different correctional institution had previously beaten plaintiff, Armstrong responded promptly and appropriately to those incidents. As for training, Ziemba has not come forward with any competent evidence that the training promulgated and supervised by Armstrong deviated in any material respect from accepted training practices. Under those practices, the use of four-point restraints was far more limited than what is alleged to have occurred here and the unreasonable use of force was prohibited. Finally, while the unreasonable restraint of plaintiff may have been partly attributable to the guards’ failure to know of his psychiatric problems, this was a function, not of any inadequate training or other supervisory failure, but of a staff miscommunication in failing to forward plaintiff’s full psychiatric records at the time that he was transferred from one prison facility to another. This is not itself sufficient to support supervisory liability.
Ziemba’s attempts to impose supervisory liability on Gomez fail for the same reasons. Although Gomez, unlike Armstrong, was informed that Ziemba had been placed in restraints, there is no evidence from which a reasonable juror could infer that this notification occurred at any point other than early in the twenty-two-hour period, at which time Gomez would have had no reason to question the need for the restraint. While it was standard policy that someone (though not necessarily Gomez) would be informed every eight hours if restraints were continuing, there is no evidence that Gomez was so informed and hence no reason to impose liability on him personally.
Accordingly, Armstrong and Gomez are entitled to summary judgment on all claims against them.
The other two appellants, Nurse Margaret Clark and Medic Reginald McAllister, were, like Armstrong and Gomez, not personally involved in the restraint of Ziemba or in the administering of force that allegedly caused him injuries while he was restrained. Thus, they are not subject to direct liability for any claim of excessive force. Nor is there any basis for a claim that they failed to protect plaintiff given that they did not even encounter plaintiff until toward the end of the 22-hour period of restraint. However, when they did eventually come to check on plaintiffs’ medical condition, they ignored, according to plaintiff, evidence that he had suffered physical injury as well as his own statements to them that he was seriously injured and needed medical attention. On the basis of Clark’s and McAllister’s recognition that plaintiff had been restrained for a great many hours and their apparent failure to consult his files (which, even in their incomplete form, might have alerted them to his psychiatric difficulties), a reasonable juror could conclude that their alleged failure to attend to his complaints constituted deliberate indifference to serious medical needs, in violation of his constitutional rights.
Accordingly, we reverse the district court’s decision to deny summary judgment to defendants Clark and McAllister on Ziemba’s claims of use of excessive force and failure to protect, but affirm as to his claims of deliberate indifference.
For the forgoing reasons, we remand to the district court with instructions that summary judgment be entered in favor of defendants Armstrong and Gomez on all claims against them and that summary judgment be entered in favor of defendants Clark and McAllister on all claims except deliberate indifference to his medical needs (as to which we affirm).
I have seen all of these tidbits offered by “experts” on appellate work in one place or another. I can’t believe that people pay actual money and get CLE credit for listening to them. Therefore, I figure since you are not paying for this blog, and the First Circuit doesn’t have an opinions today, I will give them to you. For free. (And if you want irony, see here.)
The Sixth Circuit has upheld an Ohio law requiring independent candidates to congress to register with a petition signed by 1% of the voters by the day before the relevant primary. Lawrence v. Blackwell, Nos. 04-4022/4150. The Court noted that Supreme Court cases allowing a requirement of 5% of voters' signatures in July and August support the existence of a legitimate state interest in requiring only 1% as early as March.
Jason B. Nicholas, John Lewis, Philip Rabenbauer, Frank Solimine, Robert Pacini, Chester Flanders, Bennie Bates, Lymond Stephenson, Luis Mejia, Cecil Barrow, and Dominic DeRuggiero (collectively, "plaintiffs") appeal from a judgment of the United States District Court for the Southern District of New York (Kevin T. Duffy, Judge) granting defendants’ motion to dismiss. Nicholas v. Goord, No. 01 Civ. 7891, 2004 WL 1432533 (S.D.N.Y. June 24, 2004). Plaintiffs, who filed suit under 42 U.S.C. § 1983, challenge the constitutionality under the Fourth Amendment of New York’s DNA statute, which requires certain classes of convicted felons to provide DNA samples to be maintained in a state database.
We affirm the district court’s dismissal of plaintiffs’ complaint, but rely on different reasoning. We hold that the constitutionality of New York’s DNA statute is properly analyzed under the Fourth Amendment’s "special needs" test; under that test, we find the statute constitutional.
Judges Leval and Lynch joined in Judge Walker’s opinion and also concurred in their own separate opinions.
Plaintiff-Appellant Christine Carter Lynch ("Lynch") appeals from orders of the United States District Court for the Southern District of New York (Kaplan and Pauley, JJ.), dismissing her bankruptcy appeal, denying her motion for reconsideration, and closing her case. Judge Kaplan dismissed Lynch’s appeal on the grounds that she had not shown that her failure to file a timely designation of the record on appeal and a statement of issues to be presented ("Designation and Statement"), as required by Federal Rule of Bankruptcy Procedure 8006, was the result of "excusable neglect" under Federal Rule of Bankruptcy Procedure 9006(b)(1). Because we conclude that Judge Kaplan acted within his discretion in finding no excusable neglect, we affirm.
Alliance of Automobile Mfgs. v. Gwodosky, 05-1259, is a dormant commerce clause and contracts clause case. Maine has a statute which prohibits “manufacturers from adding state-specific surcharges to wholesale motor vehicle prices in order to recoup the costs of their compliance with retail-rate reimbursement [for warranty work] laws [i.e. Me. Rev. Stat. Ann. tit. 10, § 1176 ].” Maine wins. Car companies lose.
In an earlier case, the First Circuit held that, nothing in Maine's statute prohibited charging dealers (and you, the consumer) more for vehicles sold in Maine to recoup the additional costs. Acadia Motors, Inc. v. Ford Motor Co., 44 F.3d 1050, 1055-57 (1st Cir. 1995).
Then, the legislature prevented motor vehicle manufacturers from "recover[its] its cost for reimbursing a [dealer] for parts and labor pursuant to this section." After finding standing, the court finds that the statute had no discriminatory purpose (because Maine's Franchise law was to prevent fraud and good things for the state – such as an unfair price differential); didn't try to hard (and failed) at proving discriminatory effect; and there was no real evidence of the statute's extraterritorial effect offered, anyway.
As to the contracts clause argument, the court finds that since Maine's purpose was to protect consumer welfare, by providing consumers with additional remedies, “That rationale brings the recoupment bar squarely within the category of remedies to generalized social or economic problems that constitute legitimate subjects for legislation, notwithstanding the imperatives of the Contracts Clause.”
We consider here whether the BIA’s determination that a petitioner failed to establish that she would "more likely than not" be tortured upon her return to China is supported by substantial evidence. We hold principally that excerpts from two State Department reports which establish that (1) many repatriated Chinese citizens have been placed in administrative detention, (2) conditions in administrative detention facilities are "similar to those in prisons," and (3) there have been several documented instances of Chinese prisoners having been tortured, does not compel any reasonable factfinder to conclude that a petitioner, if repatriated, would more likely than not be subjected to torture based solely on the fact that she had illegally emigrated from China.
Before us are (1) an interlocutory appeal by the Republic of Austria, challenging a discovery order of the United States District Court for the Southern District of New York (Shirley Wohl Kram, Judge), aimed at determining whether plaintiffs can establish subject-matter jurisdiction (No. 02-9361), and (2) Austria’s petition for a writ of mandamus to compel the District Court to rule on defendants’ pending motion to dismiss (No. 02-3087). We are asked by the Republic of Austria—and by the United States and the American Council for Equal Compensation of Nazi Victims from Austria, as amici curiae—to dismiss this case, which is reported to be the sole remaining obstacle to the implementation of a fund to compensate Austrian Jewish victims of the Nazi regime for Holocaust-related property deprivations.
VACATED in part, DISMISSED in part, and REMANDED in part. Judge Straub dissents in a separate opinion.
This case requires us to consider whether the defendant’s flight out of the jurisdiction and use of an alias – both prior to the filing of criminal charges – constitute obstruction of justice within the meaning of section 3C1.1 of the Federal Sentencing Guidelines. . . . [W]e hold that they do not.
Appeal from summary judgment for plaintiff who brought suit under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.. Appellant challenges, inter alia, the district court’s apparent failure to sufficiently defer to administrative findings in its favor. Vacated and remanded.
5. The CA2 is off tomorrow and Friday, and so am I. See you Monday.
Yuan v. Gonzales, No. 05-1241
(unpublished), affirms the IJ’s credibility determinations. If you
want to read about what happens when you get pregnant in China too
early read it (which would have been persecution, had she not be found
to be lying). If you want to read about what happens when you do so in
the US read this.
As an aside, if you only get your news of the world by reading IJ, BIA,
and the ways courts of appeal deal with petitions for review of the
BIA, would a rational person conclude that: 1) foreigners are all
liars; or 2) IJs hate foreigners ?