Third Circuit: USA v. Jamar Hunter

Where there is more than one passenger in the car, it is not unreasonable for the police officer conducting a traffic stop to conduct an extended criminal history check on the occupants of the car for reasons of officer safety. The check was a negligibly burdensome precaution justified by officer safety concerns. 

CONCURRENCE:

The record check was part of the stop itself, so no reasonable suspicion was required. Although required by precedent, reason to doubt that history checks improve officer safety.  Racial profiling concerns.

USA v. Jamar Hunter

Tenth Circuit: Hampton v. Utah Department of Corrections

 A preexisting disability-neutral list of approved firearms for correctional peace officers cannot be the sole basis for denying a disability-related request to use another type of firearm. The request was plausible and facially reasonable.

Claim of instructions to delay accommodation requests until after initial probationary period does not present an issue for trial as to the existence of a discriminatory policy. A claim that accommodation requests "generally filter up" to the decisionmaker does not, standing alone, present a genuine issue for trial as to whether the decisionmaker was aware of the request.

Court did not abuse discretion in refusing to allow plaintiff to testify about the disability as an expert, given lack of proof of reliable scientific methodology.  

Hampton v. Utah Department of Corrections

Sixth Circuit: Marlean Ames v. Ohio Dep't of Youth Servs

 Plaintiff's own circumstances insufficient to establish a pattern of discrimination, and when combined with the fact that the decisionmakers for the allegedly discriminatory employment decision are members of the same majority classification, is insufficient to establish the background circumstances required to find that a member of a majority classification was discriminated against.

Sufficient evidence for the nondiscriminatory explanation.  Having several nondiscriminatory reasons advanced for the decision after the fact is insufficient to establish pretext if the reasons don't contradict. 

Marlean Ames v. Ohio Dep't of Youth Servs

Sixth Circuit: Inner City Contracting LLC v. Charter Twp. of Northville

 Despite being a disappointed bidder for a government contract, the plaintiff alleged a specific injury, and therefore the claim isn't presumptively disfavored for purposes of standing. The dignitary harm in racial discrimination and the lost profits from the contract suffice for Article III standing.

A corporation's claim of racial discrimination falls within the zone of interests of the statute prohibiting racial discrimination in contract awards. Supreme Court holding saying that a corporation has no racial identity referred to constitutional standing, not statutory standing.  

Claims against state government entities must be under the general statute (S1983), as there is no cause of action against states under the particular statute.  Under the general statute, establishing that a contract was awarded to a higher bidder of a certain race states a claim absent any proffer as to the racial identity of the plaintiff corporation.

Private company reviewing bids and making a recommendation wasn't a state actor for purposes of the statute. Lack of investigation of bidding process insufficient for municipal liability.  No equal protection or due process claim where alleged discrimination was by the private entity of a private-public collaboration. No property interest in a lost contract bid, where the state actor had discretion to accept the bid.

Inner City Contracting LLC v. Charter Twp. of Northville

 

Eighth Circuit: Barry Segal v. Metropolitan Council

 Although a violation of the transit agency's regulations might not suffice to establish a claim under the discrimination statute, the violations here presented a genuine issue of material fact for trial.

Barry Segal  v.  Metropolitan Council

Eighth Circuit: Scott Gustafson v. Bi-State Development Agency

 Concession at the motion for judgment on the pleadings that the plaintiff wasn't seeking to enforce a private right of action under the statute judicially estops plaintiff from making such a claim at the motion for summary judgment.

 Frustrating but isolated incidents of inability to access services don't support a discrimination claim under the statute.

Earlier denial of motion to amend the complaint isn't automatically raised in an appeal of subsequent denial of summary judgment.

Scott Gustafson  v.  Bi-State Development Agency

First Circuit: Cushing v. Packard

For claims arising from either of the federal statutes at issue, a suit against an officer of a state legislature in their official capacity, and in which the state is not named in the action, is against the legislator personally in their legislative capacity and doesn't implicate state sovereign immunity.

If Congress can abrogate conduct-based legislative immunity, as opposed to status-based sovereign immunity, a clear statement to that effect in the law is required.

State legislature did not waive its officers' legislative immunity from disability related discrimination  claims by accepting federal funds for the legislative session costs pursuant to a federal statute with an antidiscrimination clause.

Legislative immunity bars a suit against a state officer where the injunctive remedy would effect a change in the rules that was more than merely casually or incidentally related to legislative affairs.

Legislative immunity under the Speech and Debate clause can't be limited by the state's adoption of a less expansive standard in its own law.

Extraordinary exceptions to legislative immunity aren't available, since, among other reasons, the legislature was following independent procedural rules, rather than changing them.

DISSENT:

Purpose of the immunity is to prevent the disenfranchisement of the people.  Effective ouster and disenfranchisement of some can't therefore be immunized in the interests of protecting others. Only immunizing conduct that isn't facially discriminatory opens the door to facially neutral but discriminatory rulemaking.

Cushing v. Packard

Fifth Circuit: Woods v. Cantrell

 A single use of a racial epithet in the workplace can state a claim under Title VII.

Woods v. Cantrell

Seventh Circuit: Robert Bless v. Cook County Sheriff's Office

 

Court did not abuse discretion in quashing deposition of city sherriff, since the sherriff was not personally involved in the employment matters at issue, and the plaintiff did not describe the admissible evidence that might result from the deposition beyond the existence of a conversation at a political event.

Employment action was too attenuated from the employer's gaining knowledge of political activity to support a claim for political retaliation, and the nondiscriminatory bases offered by the employer for the action were insufficiently rebutted..  Claim of racial dicrimination doesn;t present a genine issue of material fact for trial, since there were decisionmakers outside of the protected class and the nondiscriminatory reasons for the action were insufficiently rebutted.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-17/C:20-2733:J:Kanne:aut:T:fnOp:N:2748733:S:0

Second Circuit: United States v. Weaver

 

Fourth Amendment, 161 pp. en banc.

Directive to stand in a place where a frisk would be possible doesn't commence a search, as there was no invasion of a private and constitutionally protected area due to physical trespass or a reasonable expectation of privacy.

Although the seizure in the the Fourth Amendment commenced when the deft reasonably believed that he was not free to leave, the subjective beliefs of the deft doesn't enter into the question of when a search commences.

Similarly, a police officer's subjective intentions do not enter into the determination of when a search has commenced.  There might have been many reasons for the police officer to tell the deft to stand in a certain place.

Deft's hitching of pants, combined with a statement that there was nothing in them that might be weighting them down, was sufficiently furtive; officer is not required to dispel the possibility that the weight was non-threatening contraband.  Deft's conduct, coupled with the behaviour of others in the car, deft's earlier actions, and the location of the stop were sufficient articulable bases for the Terry stop and pat-down.

CONCURRENCE IN THE JUDGMENT, joined by a PARTIAL CONCURRENCE:

Search did not commence until actual pat-down, rather than at the command to stand with feet widely apart.  Circuit precedent requiring a hypothetical test under th same facts, but changing the race of the deft remains good law.  Unless the characterization of "high crime area" is supported by recent and relevant hard data describing a circumscribed area, the characterization usually defers inappropriately to the judgment of the officer.  When's categorical removal of subjective intent from the suppression calculus in favor of a possible subsequent S1983 remedy risks allowing stops with clear evidence of racial discrimination.  Legislatures should directly regulate police conduct, rather than deferring to courts' Fourth Amendment scrutiny.

DISSENT

(Refers to police officers by first name throughout.)

The hitching of the pants was with one hand, and not in a distinctive manner; the officer must have the reasonable suspicion that the objct is dangerous.  Defts repeated compliance with positioning commands and the constant visibility of defts habnds meant that there was insufficient reasonable suspicion from the time after exiting the car, and that earlier suspicions hould have dissipated.  Supreme Court has never held that officers have no obligation to consider alternative explanations for potentially suspicios behaviour.  Reasonable suspicion is an individualized inquiry, placing th behaviour of the other passengers outside the calculus.  Looking at an unmarked car does not constitute counter-surveillance of police activity.  An officer's direction to assume a "spread eagle position" commences a search and requires a reasonable suspicion that the peson being searched is armed and dangerous; it is an order that allows the touching to take place.   Subjective belief of the person being searched as to the beginning of that search is relevant to the reasonable expectation of privacy that defines the search.  Whren risks pretextual and discriminatory stops.

DISSENT

Current Fourth Amendment law encourages deference to police, and then arbitrary distinctions between the deft and other members of society to justify the conclusions of the police.  Exclusionary rule has become a disaster, allows incremental erosion of the right throgh cognitive bias.  Whren encourages pretextual stops and leads to stereotyping.  Command to stand "spread eagled" exceeded permissible bounds of the traffic stop and direction to exit car; it was an additional seizure, and the additional seizure required an additional showing of reasonable suspicion of criminal activity afoot and that the person being seized was armed and dangerous.  Not considering this is contrary to Supreme Court and circuit precedent.  Whren doesn't foreclose considering the offier's discriminatory intent in making the stop where relevant to the officer's characterizations of the justifications for the stop.  Would remand to consider this.  

DISSENT

Stop was pretextual, search was unreasonable.  Officers repeately noted defts race in contemporaneous accounts.  

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/2/doc/18-1697_complete_opinion.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/2/hilite/

Seventh Circuit: USA v. Latrell Coe

 

Reference in sentencing colloquy to an ethnicity shared with the defendant was sufficiently counterbalanced by race-neutral reasoning on the subject, establishing that the court did not rely upon impermissible factors.

Incomplete brain development in the late teens and early twenties is a generic, stock argument, and not a valid mitigating factor.

USA v. Latrell Coe

Fifth Circuit: Newbury v. City of Windcrest

 

Plaintiff's clam that rudeness was gender-based is unsubstantiated by the record.  Two confrontations and a hostile encounter do not suffice for a constructive discharge claim under the statute.  A record reflecting resignation from the position precludes a sufficient showing for retaliatory discharge or gender discrimination.  While a work assignment might have sufficed for retaliation, sufficient causation wasn't established. 

Insufficient proof for Monell claim against municipality arising from police bodycam appearing to remotely activate when inside the plaintiff's house, given technical evidence and lack of showing that there's a general policy to surreptitiously record off-duty officers.

Newbury v. City of Windcrest

Seventh Circuit: Vaun Monroe v. Columbia College Chicago

 

As a claim of discrimination under the federal statute is an attempt to remedy a personal injury to civil rights, the appropriate statute of limitations is taken from the appropriate state's personal injury tort law.

Vaun Monroe v.  Columbia College Chicago

Second Circuit: Tardif v. City of New York

 

Not providing timely and adequate medical services to detained individual prior to arraignment doesn't violate the disability act, since the disability requiring medication is the reason for the service, not the obstacle for which a reasonable accomodation would have to be provided.  Plaintiff was not denied medical services because of the disability.

At summary judgment, the defendant was not required to provide a nondiscriminatory theory for not providing the medication.

Limiting the testimony rebutting a claim of pecuniary motivation to the social justice motivations for participating in the protest rather than allowing testimony about past work for social justice was not an abuse of discretion.

State law permits a police officer to use an objectively reasonable amount of justifiable force in any non-arrest situation; the contact does not in itself give rise to a claim for assault, and the justification is not limited to the circumstances enumerated in state law.

Since the question of objective reasonableness of force looks to the Fourth Amendment, it was error to instruct the jury that the subjective mental state was at issue; where subjective mental state was potentially dispositive, the error is not harmless.

Tardif v. City of New York

Ninth Circuit: Freyd v. University of Oregon

 As the comparison of duties between privately funded and federally funded research academics is fraught with judgment, not law, their equivalence is a genuine issue of material fact for trial.

The standard under the state law is broader than the federal standard, reasoning from the greater, there is an issue for trial on the state claims as well.

As plaintiff in disparate impact claim wasn't challenging thempe practice of retention raises, but additionally suggesting that the salaries of the cohort be raised as well, it is an attack on a specific process, not general one.  The existence of an alternative undercuts the claim of business necessity.

Although statistics derived from small sample size have less probative value, disagreement among experts as to the validity of the numbers can suggests a triable issue.

As the plaintiff never engaged in retention raise negotiations, there is no issue for trial on state and federal disparate treatment claims or Title IX.  Insufficient evidence of intentional discrimination for state ERA claim.

DISSENT:

Equal Pay Act requires a case-specific examination of the actual job performance and content.

Full Professors are like professional athletes.  Significant differences in all of the jobs for the members of the plaintiff's department.

State claim only requires a common core of tasks, which presents an issue for trial.

Retention negotiations are elective -- each professor chooses to engage or not. Small sample size.  The practice is a business necessity.

Freyd v. University of Oregon

Eighth Circuit: United States v. Shawn Thomason

 

As the writings found in the defendant's car supported the theory of the crime and established a potential future danger to the community, consideration in sentencing was not a violation of the First Amendment.

As the deft requested the change late in the trial, the claim of prosecutorial misconduct due to the use of gender-specific pronouns was waived; alternatively, pronouns are not dispositive.  Misgendering is insufficient basis for a claim of judicial bias; no error in denial of motion to recuse.

Plea deal identifying one act as applicable for restitution did not preclude the seeking or award of restitution under an additional act.

Interstate stalking statute does not unconstitutionally co-opt state authorities.

United States  v.  Shawn Thomason

Eleventh Circuit: Michelle Lee Helm v. Greg Carroll, et al

 

In considering whether a reasonable person would have thought that they could have walked away from an allegedly consensual encounter with the police, the race of the suspect is not a relevant factor.  This consideration would be insufficiently universal to be objective, and offends Equal protection.

Concurrence in J:

Ideally, the law would be that the police must affirmatively clarify whether a suspect is free to leave an allegedly consensual but inherently coercive encounter.  Offends Equal Protection.

Michelle Lee Helm v. Greg Carroll, et al

Fifth Circuit: Perry v. VHS San Antonio Partners

 

Although the hospital had the authority to order the physicians' group to terminate the services of one of its employees providing services at the hospital, that single fact is insufficient to present a genuine issue of material fact for trial on the question of whether the two enterprises were sufficiently integrated to create liability under the act.

The two entities also, as a matter of law, were not joint employers of the plaintiff, as the hospital did not have the power to hire, the plaintiff set his own schedule, and the two enterprises were not economically integrated.

Plaintiff did not have a contractual relationship with the hospital sufficient for a S1981 claim, and the two entities were sufficiently distinct to establish that he wasn't a contractor of the hospital.

Perry v. VHS San Antonio Partners

Second Circuit: James Domen v. Vimeo, Inc.

 

Since the video streaming service's removal of the Plaintiff's account was a good faith effort to enforce an internal policy that was aimed at removing objectionable content, the federal statutory safe-harbor applies, preempting state antidiscrimination laws and state public forum content-neutrality laws.

James Domen v. Vimeo, Inc

Tenth Circuit: Birhanu v. Wilkinson

 

By considering the information provided and holding a hearing on the matter, the immigration judge took care in determining the competency of the pro se alien defendant sufficient to assure fundamental rights of Due Process; although the alien reported that the voices that he was hearing in his head disturbed his thought processes, his demeanor appeared sufficiently lucid and responsive.

Right to counsel claim under the Rehabilitation Act required administrative exhaustion.

For immigration law purposes, recklessly threatening substantial property damage with actual intent to interrupt public access to a portion of the building is a crime of moral turpitude.  The specific intent of the state statute is a sufficiently aggravating factor under circuit precedent.

Although subjective ability to dissociate and reflect is relevant to determining whether two acts are divisible, a three day gap sufficed to establish the division as a matter of law.

Chevron deference to agency on the question of whether the agency should consider the insanity element of the criminal plea, as a prior apparently contradictory agency interpretation spoke to the evidentiary bounds of the agency's consideration, and the cited opinion addressed the appropriate substantive grounds for the agency's consideration.

Concur/dissent:

Agency shoudl have considered mental health element of plea in relevant conviction; arbitrary application of precedent dejustifies deference.

Birhanu v. Wilkinson