Second Circuit: Libertarian Party of Erie County v. Cuomo

For standing to challenge state firearms licensing scheme, plaintiffs must either apply for a license or demonstrate the futility of doing so.

11th Amendment bars claims against judges in their individual capacity when adjudicating firearms licensing applications, as the licenses issue under judicial order, although the refusals are communicated administratively.

As firearm licenses can be legitimately withheld for certain reasons, the statutory requirement of good moral character can be read to incorporate these reasons, and is therefore not unconstitutionally vague.

Licensing scheme doesn't offend Second Amendment, as there is a substantial relationship between the legitimate goals of the licensing scheme and the restrictions that it imposes.

Libertarian Party of Erie County v. Cuomo

Second Circuit: Williams v. Korines

Prison regulation of gang insignia and materials clearly prohibited possession of photographs of people in the gang's colors and making hand-signs associated with the gang; no reasonable guard would be unaware that there materials were encompassed by the regulation.

Where a previous penalty proceeding is vacated upon review, and in the subsequent penalty, credit is given for the time served of the earlier penalty, the first proceeding is not a basis for a due process liberty claim.

Although the second proceeding was reversed by the Director, the state's deprivation of due process standard merely requires sufficient information to constitute substantial evidence, so the expert opinions offered in the proceeding sufficed.

Circles added to photographs examined during the proceeding were harmless, as the expert earlier reviewed the photos without the circles.

Talking over the presiding officer and waving his finger at her was sufficient basis to remove the prisoner form the proceeding.

Williams v. Korines

Sixth Circuit: John Doe v. David Baum

Where the facts are in dispute and there are competing narratives of events, due process requires that public universities allow either the accused student of his or her representative directly to question the accuser.

A judicial proceeding in which everyone of one gender is believed and all those of the other gender are disbelieved states a claim under Title IX.

Concurrence -- Title IX violation states a claim; some grounds for the claim improperly excluded by this holding, as they're more appropriate to the summary judgment standard.

Dissent -- Due Process right to confront the witness can be vindicated by written questions.  Insufficient particularized causal connection for Title IX claims.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0200p-06.pdf

Third Circuit: In re: Tribune Media Company

Bankruptcy Court had statutory jurisdiction to resolve discrimination claims against debtor as a matter of law, as plaintiff consented to jurisdiction, and the statutory carve-out that would usually move personal-injury tort claims to the District Court is not a jurisdictional provision.

Implicit consent to jurisdiction suffices for a Bankruptcy Court to resolve the claim; by filing and seeking judgment from the court, Plaintiff consented to jurisdiction as to constitutional concerns.  Constitutional challenges to the court's jurisdiction might have been lodged during the proceedings or in a motion challenging the denial of claim, making the present challenge untimely.

As plaintiff received notice and opportunity to be heard, there were no Due Process violations inherent in the Bankruptcy forum; consent to forum waived the jury trial right; challenge to local counsel rule waived for not being raised below.

Post-discharge, a tort liability claim that was incorporated in the bankruptcy settlement cannot be transferred or remanded.

Given absence of incidents in employee's file, employer not liable for racial animus under respondeat superior.

Employee's termination for fighting during the incident of alleged racial animus had a sufficiently non-discriminatory rationale.

http://www2.ca3.uscourts.gov/opinarch/172449p.pdf

Third Circuit: Brandy Kane v. Shawn Barger

Denial of qualified immunity, as circuit precedent involving illicit videotaping of fellow officers and inappropriate physical contact with arrestees clearly established a due process right to bodily integrity that was offended by the manner of the assault investigation.

http://www2.ca3.uscourts.gov/opinarch/173027p.pdf

Third Circuit: Newark Cab Association v. City of Newark

The owner of a taxi licence has a Constitutional property interest in the licence, but not necessarily in its economic value. 

Sufficient rational basis for treating street-hail cabs differently than app-based services. 

City's licensing scheme does not use language that plainly expresses the intention to create a contractual obligation, and is not definite enough to bind by estoppel,.

http://www2.ca3.uscourts.gov/opinarch/171358p.pdf

Fifth Circuit: Veritext Corporation v. Paul Bonin, et al

State regulation of business practices of shorthand court reporters is justified by a sufficiently strong state interest.

The practice is not immunized against antitrust scrutiny, though, as there is no active state oversight; while the regulations are a creation of the legislature, and the Board is merely administering them.

http://www.ca5.uscourts.gov/opinions/pub/17/17-30691-CV0.pdf

Ninth Circuit: Martinez De Ryan v. Sessions

Crimes of moral turpitude is not an unconstitutionally vague category for purposes of deportation review.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/17/15-70759.pdf

Fourth Circuit: US v. Hinda Dhirane

No constitutional error in the FISA statutory process that substitutes review in the Executive Branch for a Franks hearing, as an unconditional adversarial process was appropriately modified in the interests of national security, and there was sufficient mitigation of the change.

Although it was unnecessary for the court to find that the defts were part of the organization to which they were sending funds, the finding amply supported the charge of providing material support.

For the sentence increase for funding a violent act, no nexus to a given violent act need be shown; the question is whether the deft believed that support would be used in an act of violence.

http://www.ca4.uscourts.gov/opinions/174205.P.pdf

Second Circuit: United States v. Thompson

Minor trafficking statute is not overbroad, since any material assistance provided to victims by charitable organizations that might fall within the proscriptions of the act do not prohibit the expressive associations protected under the First Amendment, and prosecutions are unlikely for assistance provided by family members, who would, in any even, lack the needed mens rea for culpability.

A mens rea requirement as to the victim's age in one section of the statute does not necessarily imply the same degree of knowledge for conviction under a provision providing increased penalties for a victim of an even lower age.

Venue is proper in the district where the minor was induced and enticed, despite the fact that the film was created elsewhere.

http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/1/doc/16-2986_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/1/hilite/ 

Seventh Circuit: Joshua Vasquez v. Kimberly Foxx

State's expansion of residence restrictions for registered offenders was not an ex post facto penalty, as the conduct regulated is post-enactment knowing residence.  The law does not amount to a taking, since it is a regulation on the use of property, doesn't affect the market value of the property, and plaintiffs acquired the property after enactment.  Procedural due process does not require individual hearings.  The law has a rational basis.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1061:J:Sykes:aut:T:fnOp:N:2184695:S:0

DC Circuit: Delaware Riverkeeper Network v. FERC

Implied right of action for riparian denizens under the statute to challenge power plant construction.

Clean air, water and environment is not property or liberty for which due process of law would be required before deprivation.

Funding structure of the commission does not, on its face, violate the constitution; review and tolling procedures are within the statute.

https://www.cadc.uscourts.gov/internet/opinions.nsf/2FEE744A69F0676F852582C600521EA8/$file/17-5084-1739812.pdf

Third Circuit: Brittan Holland v. Kelly Rosen

Plaintiff's opting out of the bail hearing does not deprive him of standing to challenge the bail law, since the challenge is not to the detention order, but to the lack of constitutionally sufficient procedure.

As the bail-bonding agency has only a hypothetical relationship with future customers, it does not have third-party standing to challenge the law on their behalf.

The Eighth Amendment does not guarantee a fair consideration of potential monetary bail, as that was not the practice at the time of adoption, and the Amendment does not mention monetary bail.

Cash bail and corporate surety are not protected by substantive due process, as they are neither sufficiently historically rooted nor inherent in the concept of ordered liberty. Statute's subordination of monetary bail to non-monetary restrictions is rationally related to a legitimate government purpose.

Where deft is able to ask the court for decreased restriction, sufficient procedural due process in a scheme where non-monetary pretrial appearance guarantees are prioritized over monetary bail.

http://www2.ca3.uscourts.gov/opinarch/173104p.pdf

Third Circuit: Ahmed Bakran v. Secretary

As the statute vests the determination of status in the agency and such action is statutorily unreviewable, supporting criteria developed by the agency are also unreviewable, as they are merely interpretive aspects of the determination.

As the felony conviction of the alien's spouse and sponsor does not impede the marriage, but merely the right of the spouse to live in the US, the right to marry is not affected; further, the question of residency is much broader, and the limitation of the rights of the sponsor following a felony conviction is a reasonable one.

As the statute that attached new limitations to the rights of those already convicted was clearly intended to apply to past convictions and referenced post-enactment dangers, there is no violation of Ex Post Facto; waived anyway.

http://www2.ca3.uscourts.gov/opinarch/163440p.pdf

Ninth Circuit: Wheeler v. City of Santa Clara

A sufficiently expansive state law of survivorship and intestate succession can bar an adopted natural child from asserting a S1983 claim, as there is no absolute right of succession implied by the purposes of the act.

Claims under the ADA and the RA are remedial in nature, not punitive; the statute-borrowing provisions of civil rights law are therefore inapplicable; there is no precedent under federal common law for allowing an adopted natural child to state a claim.

Absent a showing of a true parental relationship, an adopted natural child with a close relationship cannot state a claim under a Fourteenth Amendment liberty interest.

Court properly denied leave to amend, given relevant state statute of limitations, as nature of present claim doesn't hold the door open for relation-back.

Concurrence: Adopted children can establish a 14A claim.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17375.pdf

Seventh Circuit: Ricardo Sanchez v. Jefferson B. Sessions III

Board's statement of a legal standard of probability suffices to establish a violation of the Fifth Amendment when considering the right to counsel in deportation proceedings where the correct standard is that of reasonable possibility of a different outcome.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-05/C:17-1673:J:Rovner:aut:T:fnOp:N:2181672:S:0

Sixth Circuit: United States v. Jamal Cooper

Wiretap Act does not require a different application for each authorization, but merely that each application conform to the Act.

No clear error in authorizing the tap where many of the alternatives were discounted prospectively.

No error in denial of Franks hearing where the challenged omissions on the affidavit might be construed from the contents of the affidavit.

Sealing and delivery of tapes four days after the end of the tap did not transgress the two-day limit, as the government needed to confirm that the deft was no longer using that line.

Where trial judge accepts govt contention at trial that the content of the recorded conversation establishes that the confidential informant consented to the taping, no clear error in the admission of the tapes.

Parolee confidential informers can validly consent to the taping of conversations.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0116p-06.pdf

Second Circuit: Copeland v. Vance

As plaintiffs seek relief holding the law void for vagueness as to an entire category of folding knives, the challenge is construed as a facial challenge; a past enforcement against one of the plaintiffs provided sufficient notice of the proscribed activity, establishing that it is possible to enforce the law constitutionally -- therefore not facially unconstitutional.  While it is possible to enforce the law in a discriminatory manner, and there might be evidence of this discrimination in past enforcement, the law itself does not unduly invite such discrimination.

http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/doc/17-474_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/37d309e7-2938-46a7-887d-c286c9866ef7/2/hilite/

Third Circuit: Wendy Osorio Martinez v. US

Jurisdiction-stripping provision of the INA violates the Suspension Clause when immigrant children who have attained a Congressionally designated status of special indigence that cannot be lifted without some due process are prohibited from seeking the writ.  The INA preserves both the Congressional power to deport and the Congresional power not to deport.

TRO is justified to bar expedited removal of such children -- on merits, without remand.

http://www2.ca3.uscourts.gov/opinarch/172159p.pdf

Seventh Circuit: Wendell Weaver v. Walter Nicholson

State Habeas court reasonably applied governing precedent in holding that disqualification of deft's chosen counsel due to representation of potential prosecution witness didn't violate the right; the third party representation here was much closer than in the precedent to the contrary.

Trial counsel not crossing on a particular point didn't prejudice the petitioner, as the witness' credibility was attacked elsewhere.

Petitioner didn't show that trial counsel didn't investigate a potential witness, merely that the witness wasn't called, which must be presumed to be a strategic decision.

Claim based in reported statements of witness who died shortly afterwards was procedurally defaulted for not being raised on direct review, and would have been considered inadmissible hearsay under governing Supreme Court precedent.

Pre-trial inconsistencies and post-trial recantation insufficient to establish Due Process violation for prosecution witness' perjury, given state court finding to contrary.

Admission of prior bad acts claim procedurally defaulted.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-15/C:16-2400:J:Kanne:aut:T:fnOp:N:2171664:S:0