Denial of qualified immunity for trigger-happy tasing of diabetic driver. Driver's attempt to remove one of the taser wires might have been resistance (pun?) but as the subsequent (fourth) tasing was underway already, it wasn't excused.
http://media.ca11.uscourts.gov/opinions/pub/files/201616804.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Ninth Circuit Bohmker v. State of Oregon
As state law banning motorized mining in certain areas has a clear purpose, is closely tailored, does not choose land use, and is not integrated within land use scheme, it is not field (pun?) or conflict preempted by federal mining and and use law.
Dissent: It restricts use of land.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/16-35262.pdf
Dissent: It restricts use of land.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/16-35262.pdf
Ninth Circuit: USA v. Blackstone
Second or successive habeas challenging residual clause conviction under mandatory sentencing guidelines is untimely, as the right has not yet been made retroactive.
Ninth Circuit: DNC v. Reagan
Voter filing assistance statute minimally burdens 1st & 14th Amendments; plaintiff did not demonstrate burden o discrete subgroups; no showing of prior fraud was needed, as the state might be preserving trust in the process; holding that disproportionate impact was de minimis was not clear error; legislature acted without intent to discriminate.
Discarding out-of-precinct ballots similarly upheld.
Dissent: Disparate impact, history of discrimaination, Section 2 of VRA problematic, etc.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/18-15845.pdf
Discarding out-of-precinct ballots similarly upheld.
Dissent: Disparate impact, history of discrimaination, Section 2 of VRA problematic, etc.
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/18-15845.pdf
Eighth Circuit: United States v. Calvin Bernhardt
Sufficient evidence where counterfeit bills were in a stack separate from the other currency and showed varying levels of verisimilitude.
Indictment counts not multiplicitous, as one refers to spoiliation.
Attempt to persuade co-conspirator to remain silent, where accompanied by consciousness of wrongdoing, is culapable, as it falls outside of Fifth Amendment and privilege protections.
A substantial step towards illicit travel must implicate travelling -- not the underlying criminal plan.
http://media.ca8.uscourts.gov/opndir/18/09/171325P.pdf
Indictment counts not multiplicitous, as one refers to spoiliation.
Attempt to persuade co-conspirator to remain silent, where accompanied by consciousness of wrongdoing, is culapable, as it falls outside of Fifth Amendment and privilege protections.
A substantial step towards illicit travel must implicate travelling -- not the underlying criminal plan.
http://media.ca8.uscourts.gov/opndir/18/09/171325P.pdf
Eighth Circuit: Muhammad Abdurrahman v. Mark Dayton
Capable of repetition yet evading review exception to mootness is an equitable consideration; as the faithless elector could have filed suit during the vote-casting process, the exception is not available to him now.
http://media.ca8.uscourts.gov/opndir/18/09/164551P.pdf
http://media.ca8.uscourts.gov/opndir/18/09/164551P.pdf
Seventh Circuit: Brian Reynolds v. Henderson & Lyman
Existence of a duty of care, although dispositive, is a question of law that, in the federal forum, is decided by the judge. As the division of responsibilities for finding facts and law at the trial stage is a procedural one, the procedures of the federal forum control.
Under state law, attorneys for LLC owed no third-party duty of care to LLC owner and manager.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-12/C:17-1999:J:Wood:aut:T:fnOp:N:2217358:S:0
Under state law, attorneys for LLC owed no third-party duty of care to LLC owner and manager.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-12/C:17-1999:J:Wood:aut:T:fnOp:N:2217358:S:0
Fifth Circuit: Lizzy Plug, et al v. SXSW Holdings, Incorporated
Although festival organizers had effective control of the street, the permit required that it be operated according to the usual traffic control plan; organizers did not therefore have a duty of care that might have prompted them to change that.
Similarly, negligence per se, implied warranty, and public nuisance don't state a claim.
Murderous driver not sufficiently foreseeable; the test is forseeability from recent events, not actual knowledge of threat.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50674-CV0.pdf
Similarly, negligence per se, implied warranty, and public nuisance don't state a claim.
Murderous driver not sufficiently foreseeable; the test is forseeability from recent events, not actual knowledge of threat.
http://www.ca5.uscourts.gov/opinions/pub/17/17-50674-CV0.pdf
Fourth Circuit: Sierra Club v. VEPCO
While a power plant can be liable under the Act for discharging pollutants into navigable waters via hydrologically connected groundwater, the pollution in this instance was from the landfill and settling pools connected with the site, which were not a "point source" covered by the Act.
Parallel provisions in state permit should be construed reasonably and in a manner congruent with the federal regulations.
http://www.ca4.uscourts.gov/opinions/171895.P.pdf
Parallel provisions in state permit should be construed reasonably and in a manner congruent with the federal regulations.
http://www.ca4.uscourts.gov/opinions/171895.P.pdf
Fourth Circuit: Rosy de Reyes v. Waples Mobile Home Park
Landlord's requirement that all adults establish legal residency, prompting a disparate impact on one ethnic group, states a claim under a theory of disparate impact. At summary judgment stage, that impact is then balanced against justifications for the policy.
http://www.ca4.uscourts.gov/opinions/171723.P.pdf
http://www.ca4.uscourts.gov/opinions/171723.P.pdf
Third Circuit: Michael Rinaldi v. USA
For purposes of the review of exhaustion of remedies, prison administrative remedies are considered unavailable where administrators dissuade the inmate using serious threats of retaliation and bodily harm.
To establish unavailaibility, the inmate must show that the remedy was objectively out of reach to the average inmate and that he or she was actually deterred from using it.
Where a prison modifies procedure and the highest authority formally denies on the merits, the administrative remedy has been exhausted.
Housing and cellmate assignments are left to the discretionary judgment of the administrators, which bars a tort claim against the government under the FTCA exception to sovereign immunity.
http://www2.ca3.uscourts.gov/opinarch/161080p.pdf
To establish unavailaibility, the inmate must show that the remedy was objectively out of reach to the average inmate and that he or she was actually deterred from using it.
Where a prison modifies procedure and the highest authority formally denies on the merits, the administrative remedy has been exhausted.
Housing and cellmate assignments are left to the discretionary judgment of the administrators, which bars a tort claim against the government under the FTCA exception to sovereign immunity.
http://www2.ca3.uscourts.gov/opinarch/161080p.pdf
Third Circuit: Emil Jutrowski v. Township of Riverdale
Although a plaintiff in a S1983 suit needs to be able to identify the law enforcement officer who injured him in order to present an issue for trial, an allegation of after-the-fact conspiracy supported by omissions or inconsistencies in contemporaneous records can present an issue for trial on the same facts.
http://www2.ca3.uscourts.gov/opinarch/172594p.pdf
http://www2.ca3.uscourts.gov/opinarch/172594p.pdf
Third Circuit: Bernie Clemens v. New York Central Mutual Fire
Not an abuse of discretion for court to dismiss petition under fee-shifting statute in its entirety where counsel's performance was sub-par, timekeeping records were vague, there was insufficient proof of local prevailing rates, and plaintiff asks for 900k in fees on a 100k award after a four day trial.
http://www2.ca3.uscourts.gov/opinarch/173150p.pdf
http://www2.ca3.uscourts.gov/opinarch/173150p.pdf
Second Circuit: United States v. Kirsch
The organized labor exception to the state extortion statute encompasses only direct demands for assets in the form of traditional labor actions such as strikes and boycotts. Ejustem.
State crimes of extortion that are RICO predicates must involve transferable assets. (Not incorporeal.)
Wages and benefits sought for union members through extortion were transferable assets.
Given statute requiring actual participation or authorization on the part of union members in labor violence for culpability, insufficient evidence here.
Jury instruction focusing on victim's state of mind was appropriate, as the crime is instilling fear.
Sentence adjusted on remand for insufficient evidence.
http://www.ca2.uscourts.gov/decisions/isysquery/6f07b1d8-30cd-46b5-aca2-e0fc11936de5/1/doc/16-3329_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6f07b1d8-30cd-46b5-aca2-e0fc11936de5/1/hilite/
State crimes of extortion that are RICO predicates must involve transferable assets. (Not incorporeal.)
Wages and benefits sought for union members through extortion were transferable assets.
Given statute requiring actual participation or authorization on the part of union members in labor violence for culpability, insufficient evidence here.
Jury instruction focusing on victim's state of mind was appropriate, as the crime is instilling fear.
Sentence adjusted on remand for insufficient evidence.
http://www.ca2.uscourts.gov/decisions/isysquery/6f07b1d8-30cd-46b5-aca2-e0fc11936de5/1/doc/16-3329_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6f07b1d8-30cd-46b5-aca2-e0fc11936de5/1/hilite/
Sixth Circuit: Kashiya Nwanguma v. Donald Trump
Political candidate's spoken summary ejection of protesters was not an incitement to riot.
The test for whether a political speech is protected against a charge of incitement considers the content, form, and context of the actual words. A single listener's subjective response is not dispositive; the court must consider the actual words used.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0202p-06.pdf
The test for whether a political speech is protected against a charge of incitement considers the content, form, and context of the actual words. A single listener's subjective response is not dispositive; the court must consider the actual words used.
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0202p-06.pdf
Fifth Circuit: McGill Parfait v. DOWCP, et al
Lack of notification of award from third party was a jurisdictional bar to any award of funds, given the statute; the purpose of the award is to prevent double recoveries.
Fifth Circuit: USA v. Jesus Islas-Saucedo
State burglary statute, given recent precedent holding it not to be a valid ACCA predicate, is similarly not a sentencing guidelines predicate.
http://www.ca5.uscourts.gov/opinions/pub/16/16-40672-CR0.pdf
http://www.ca5.uscourts.gov/opinions/pub/16/16-40672-CR0.pdf
Third Circuit: USA v. Zenaido Renteria, Jr.
As venue is jurisdictional element that does not take the state of mind of the deft into account, venue in a certain district need not be foreseeable by the deft.
Sentence drug calculations upheld.
http://www2.ca3.uscourts.gov/opinarch/172079p.pdf
Sentence drug calculations upheld.
http://www2.ca3.uscourts.gov/opinarch/172079p.pdf
Third Circuit: Trinity Industries Inc v. Greenlease Holding Co
Risk did not pass back to indemnified party at the end of the period of indemnification, but should be allocated according to law and the other provisions of the agreement.
Cleanup costs, although more expensive due to being prompted by consent order, had sufficient nexus to the environmental response and were therefore reasonable.
Cost allocation methodology was improper, as it did not consider costs of individual remediations.
Court did not abuse discretion in attributing lead contamination to historic factors.
Arbitrary award percentages used in balancing of equities were not supported by specifics in the record.
Corporate entities distinct. Public policy requires presumption for the corporate form.
http://www2.ca3.uscourts.gov/opinarch/161994p.pdf
Cleanup costs, although more expensive due to being prompted by consent order, had sufficient nexus to the environmental response and were therefore reasonable.
Cost allocation methodology was improper, as it did not consider costs of individual remediations.
Court did not abuse discretion in attributing lead contamination to historic factors.
Arbitrary award percentages used in balancing of equities were not supported by specifics in the record.
Corporate entities distinct. Public policy requires presumption for the corporate form.
http://www2.ca3.uscourts.gov/opinarch/161994p.pdf
Subscribe to:
Posts (Atom)