Analyzing the fringes of the DeShaney "State Created Harm" Doctrine, Sixth Circuit Judge Sutton, over a dissent by Judge Moore, holds that there is no constitutional deprivation of life or liberty after a drag racer, who was encouraged by police officers to "go ahead," lost control and killed a bystander on a city street. Jones v. Reynolds, No. 04-2320. Witnesses testified that when Lincoln Park police officers arrived on the scene, a drag race that was about to start was no longer going to happen. Bystanders were leaving and a participant had decided to put his car back on his trailer. That was, until one of the officers placed a bet on the outcome, one of them announced from the cruiser's loudspeaker, "go ahead, we're not here to arrest anyone," and pumped up the crowd with between two and fifteen minutes of music. Then the race began, one driver lost control and killed a spectator.
Judge Sutton reminds us to look not at the actions of the officers, but at whether the decedent was in a worse position when comparing the situation before the officers arrived and when they had turned off the music. Prior to their arrival, the race was going to proceed, and in the end, that's what happened. Judge Moore would have us consider that with the officers arrival, the race was off, but they later managed to get it back on track.
As most people who live in homes or apartments (as opposed
to in caves or under rocks) know, the Supreme Court, last week in Arbaugh v. Y
& H Corp., 04-944, resolved the circuit split regarding whether the number
of employees in a company is jurisdictional for purposes of Title VII. Most Americans probably don’t think too much
about this, because, Title VII only impacts: 1) other people; and 2) people who
can’t get other jobs when they are treated badly at work. Those people, at a minimum will be able to avail
themselves of the supplemental jurisdiction statute, should the number of
employees turn out to be not what they thought it was. But, the court said more:
This is the second Fifth Circuit post-Booker appeals of a non-Guideline sentence. In this case, the district court gave a sentence twice the top of the applicable Guideline range. The court nevertheless affirms. It holds, surprisingly, that even though the district court didn't discuss the need to avoid sentencing disparity, the sentence is reasonable. The majority's reasoning is not entirely clear. It seems to suggest that Smith's argument fails because he didn't provide evidence of similarly situated defendants who receive lesser sentences. The court also seems to suggests that there is no disparity because the "district court relied on significant factors not accounted for by Smith's guideline range."
Judge Garza concurs. He would hold that the fact that Smith got a sentence twice the top of the Guidelines is by itself evidence of a substantial disparity that the district court should consider. Nevertheless, he says the argument was waived.
The court considers whether Riva's state court conviction for unlawful restraint of a minor is a "crime of violence" where the state indictment alleged that Riva locked a child in a closet by means of deception. The issue is whether the crime as alleged necessarily creates a "serious potential risk of injury to another." The court concludes that locking a child in a closet by use of deception necessarily creates that risk due to the danger of malnourishment, infection, dehydration, or injuries in an escape attempt.
Judge Dennis dissents. Under Fifth Circuit precedent, if there is a way that the crime could have been committed consistent with the indictment that does not creat the substantial risk of injury, then it is not a crime of violence. Judge Dennis reasons (correctly in my book) that the indictment does not allege how long Riva locked his victim in the closet. In this case, it may have been only momentarily, which would not create these risks.
Mullane v. Chambers, Nos. 05-1173, 05-1174. There are some strange issues today with the First’s website (e.g. linking to the wrong cases). First of all, there are two lower court opinions documenting a fairly complex battle over who has title to a boat. Mullane v. Chambers, 349 F. Supp. 2d 190 (D. Mass. 2004); Mullane v. Chambers, 206 F. Supp. 2d 105 (D. Mass. 2002); and another case from the First. Mullane v. Chambers, 333 F.3d 322 (1st Cir. 2003). However, post-trial, there is essentially one issue: whether a party is entitled to a maritime lien under 46 U.S.C. § 31342(a) (liens "goods or services . . . necessary to the continued operation of the vessel,") and the equitable “rule of advance” (protecting a person that “pays for the goods and services that would have given rise to a statutory maritime lien, on an assurance that the vessel will be responsible for the debt”) can be invoked by then-owners of the vessel that secured a discharge of a mortgage that encumbered the boat. The court also holds that it was proper to order the payment of storage charges (during the course of litigation) even though the owners posted a bond to regain the possession of the vessel. The court reasoned that since the vessel was damaged during its seizure, and couldn’t be used for most of the time, they were entitled to storage costs. The court notes in a footnote that maritime liens and equitable liens are different monsters.
SL&P compiles more amicus briefs on the “Presumption of Reasonableness.” Ironcailly, “Presumption of Reasonableness”
is beginning to sound like the name of a “Law and Order” which, apparently, is
a TV show watched by non-lawyers in which prosecutors are saints and fight crime or something.
_______ v. Metro Corp., No. 05-1552 (I changed the plaintiffs name for this blog, because she suffered enough) is a defamation case under Massachusetts law. The plaintiff had her photo published alongside an article entitled “The Mating Habits of the Suburban High School Teenager.” The district court said it wasn’t defamatory, but the Court of Appeals says it is, because the “communication” was “reasonably susceptible of a defamatory meaning.” and in Massachusetts, “a statement need not explicitly refer to the plaintiff to constitute defamation.” There was a disclaimer, but the disclaimer was easy to overlook. The court also rejects the argument that the implication of the juxtaposition was not defamatory, because the following activities are, like, totally normal and cool for teenz: attending a school prom, watching a Britney Spears video, abstaining from sex, vowing to avoid abusive relationships, or even lying about engaging in sex to defuse the pressure from peers who keep asking about it. But, the court points out that respectable people would rightfully scorn all the teens that engage in such behavior, even if everyone is doing it, and a reasonable reader would conclude that the plaintiff was one of those evil teens that the defendant insists are the norm. The moral: all teenagers are immoral, and everyone that is or was a teenager shouldn’t be allowed to get past the character and fitness exam.
The Fifth Circuit reverses a below-guideline sentence as unreasonable. Duhon was convicted of possessing child porn. The district court gave him five years probation because it was a first offense, Duhon was doing well in treatment, he suffered from a mild back problem, his codefendant got only probation for the same offense due to a substantial assistance departure, the district court disagreed with the Guidelines assessment of the seriousness of the offense, and because the Guidelines in effect at the time did not take into account that Duhon had not molested any children.
The court vacates the sentence. Interestingly, the court holds that the district court clearly erred in its assessment of the seriousness of the possession of child pornography. Judge Garza concurs but avoids this thorny question.
The court also holds that disparity between codfendants produced by a substantial assistance departure is never "unwarranted" within the meaning of Section 3553(a).
Finally, the court holds that the district court should have considered the Guidelines policy statements which provide that a defendant's physical condition is ordinarily not relevant to a downward departure. What puzzles me is that the district court in this case did not grant a downward departure; it granted a nonGuidelines sentence. By its terms, then, the policy statement did not apply.
In sum, it appears the Fifth Circuit is not going to affirm many below Guidelines sentences