Municipality's claimed injury to itself from revised airport flight-paths is insufficiently particularized to itself as a municipality to confer standing. Similarly, the losses from litigation and challenge costs aren't injuries, since the function of a municipality is to spend money on things that might benefit the citizens. Argument that the plans caused people to move away is legally and factually distinct, and therefore raised too late in the reply brief.
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.
Showing posts with label Must Read. Show all posts
Showing posts with label Must Read. Show all posts
Seventh Circuit: Marvin Carter v. Chris Buesgen
Where a federal court dismisses without prejudice in order to allow exhausion of pending direct and Habeas claims in the state system while determining that there has been inordinate delay in those claims, the futility of either amendment or recourse to the state system can make the dismissal without prejudice sufficiently final for appellate jurisdiction.
Extreme delay in the state system can excuse the federal statutory requirement that state claims first be exhausted.
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.
Ninth Circuit: George Young, Jr. v. State of Hawaii
(En Banc, 215 pp.)
Pro se plaintiff's claim that never explicitly makes the as-applied challenge is correctly read as a facial challenge, since the briefing and argument was conducted with the assistance of counsel.
(Extensive list of English statutes and edicts made against the carrying of (fire)arms from the 14c. onward.)
Colonial history suggests early American acquiescence to firearms limitations outlined in the Statute of Northampton.
Early state enactments generally held that firearms small enough to be concealed could be kept from the public square.
State courts & treatises inconclusive, but generally recognize the government's power to regulate.
The government may regulate, and even prohibit, in public places the open carrying of small arms or arms capable of being concealed. This does not impede the protection of homes or businesses. It is peculiarly the duty of the state to defend the public square. The states assumed primary responsibility for maintaining the king's peace.
Exceptions to regulations were made for persons, places. Surety operated not as a minor penalty but as a strong discincentive to carry arms.
That handguns may be used for defense does not change their threat to the king's peace. The mere presence of such weapons creates terror in the public space. Hawaii's statute makes provision for public officers, hunters and recreational users, and those with a legitimate cause for fear.
Single-officer approval regulatory scheme is not subject to challenge by prior restraint, as the regulations are not presumptively invalid.
Procedural due process claim is speculative, since no licence has yet been denied.
DISSENT:
Unprecedented and extreme holding. First circuit to hold that carrying a weapon in public falls outside of the protections of the Amendment.
Plain text of the Amendment requires right to carry arms. 19 c. State caselaw and federal legislation recognized the right to carry arms.
Statute of Northampton allowed carrying of common arms, not for the purpose of terror. English law was more restrictive of the right to carry arms than was the American. Surety was only actually invoked in extreme cases, implicitly legitimating the norm of peaceably carrying weapons.
"Weapons capable of being concealed" is a novel standard. Heller explicitly contemplates self-defense as a legitimate reason. The responsibility for keeping the peace lies with the people, not with the states.
The right openly to carry arms is within the core of the Amendment. As the regulation destroys the right, it is necessarily unconstitutional.
Pro se complaint should be construed as an as-applied challenge to the enforcement against the plaintiff.
DISSENT:
Should be either construed as as-applied, or allowed to amend. County regulations limiting licenses to working security guards are facially unconstitutional.
Sixth Circuit: Brian Lyngaas v. Curaden AG
Because evidence establishes a business plan for eventual profitability undercapitalization is not per se proof of being a mere instrumentality of another corporation.
As there is no culpable conduct establishing that the foreign corporation used their control over the domestic corporation to effect a fraud or wrong on the complainant, there is insufficient basis to piece the corporate veil.
Jurisdiction is proper in the district under the FRCP, since the cause of action arises under federal law, the foreign entity is not within the jurisdiction of any other state, and the exercise of jurisdiction is consistent with the US constitution and laws.
Under Fifth Amendment due process, foreign company sufficiently purposefully availed itself of the American market generally by launching the domestic company and retaining a measure of control over it. The marketing faxes at issue sufficiently relate to the purpose of these minimum contacts, even though the foreign company might not be culpable for the sending of the faxes. Asserting first US jurisdiction over the foreign company is reasonable, since there is a federal interest in the enforcement of the laws, and the plaintiff will not be able to find financial redress from the domestic corporation.
The regulation making culpable under the statute the person whose goods and services are advertised only applies to persons who have some level of knowledge that an unsolicited fax has been sent.
Consistent with agency findings, fax-to-computer transmissions are within the Act, as the receiving machine has the capacity of transcribing the image to paper.
Given proffer of eventual admissibility, the class was correctly certified using unauthenticated telephone logs, as nonexpert evidence may be sufficiently probative at the early stages of the litigation.
As the logs were generated by a machine, they were not hearsay -- hearsay requires the assertion of a person. Court correctly excluded expert testimony.
List of affected phone numbers reasonably necessitated the claims administration procedure.
In a federal class action, the court need not have personal jurisdiction over the defendant as to each plaintiff. The question of jurisdiction looks to the relationship between the defendant, the forum, and the litigation -- it does not depend on unnamed class members.
CONCURRENCE/ DISSENT:
As state courts couldn't resolve the clams of out of state class members, neither can federal courts resolve the claims of those outside its jurisdiction.
14A Determines the due process limits on federal jurisdiction under the 5A in federal court.
The statute doesn't apply to faxes received on computers, since, on its own, a computer can't receive messages from a phone line or print the fax on paper; additionally, Congress listed computers as senders, but not receivers.
DC Circuit: Christiana Tah v. Global Witness Publishing, Inc.
Although the district has recently clarified that the special motion to dismiss statute imposes a burden equivalent to summary judgment in the federal courts, the statute can't be applied in federal court, because the movant under the statute has no burden to make any showing on the merits and the statute limits the discovery process.
Nothing in the denials by the targets of the investigative reporting constituted readily verifiable evidence needed to support a plausible case that the publisher had a degree of awareness of probable falsity sufficient to establish reckless disregard for the truth.
DISSENT:
Even absent contradictory evidence, a story might be inherently implausible, and a publisher has an affirmative duty to reasonably dispel their own doubts. First consider the inherent plausibility, then consider counterarguments.
The concession that there was no evidence that the counterparty to the transaction alleged to be the motive for the bribery knew of the payments, and the lack of motive for self-dealing bribery in the bonuses awarded make the story sufficiently inherently improbable.
The facts cited in the denials were sufficient to cast doubt on the story.
Circuit split suggested.
NYT v. Sullivan should be overruled.
Second Circuit: Fund Liquidation Holdings LLC v. Bank of America Corp.
The notice of appeal properly identified the party taking the appeal, the orders that were the subject of the appeal, and the court to which the appeal was being taken; the jurisdictional element of the rules of appeal were satisfied, and since notice was given of intent to appeal all orders, the description of the appellant in the caption as successor in interest to an entity that only accounted for some of the claims was excusable.
As assignment of claim doesn't undo an injury, the claim filed by an entity that had already assigned the interest had sufficient Article III standing; assignment of claim is distinct from grant of power of attorney, which would trigger a prudential limitation on standing.
While choice of law for corporations usually looks to the location of the business, choice of law for partnerships looks to the law of the forum. Questions of state law can be dispositive in the federal standing inquiry.
Although legal capacity of parties isn't a jurisdictional element in standing, existence of the entity is, and since the jurisdiction provided for no wind-up time, the non-existent parties did not have standing at the time the suit was filed.
A suit filed by a non-existent entity is not a nullity; so long as there is a real party in interest willing to join the suit at the time the suit is filed and the real party in interest ratifies, is substituted, or is joined within a reasonable time, there is sufficient subject matter jurisdiction for the action at the time of filing. Since procedural reforms have allowed for nominal parties, this doesn't offend the Constitution. Court retains the right under the rules to deny joinder for equitable reasons. Circuit split flagged on the nullity doctrine.
Equitable tolling is available for new plaintiffs joined to existing class actions.
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.
Seventh Circuit: Carl Leo Davis v. US
The Supreme Court's holding that the residual clause of ACCA was unconstitutionally vague announced a substantive change in the law that applies to petitioners seeking collateral review of sentences imposed under a parallel provision of the mandatory sentencing guidelines, despite the Supreme Court's subsequent holding that the provision in the guidelines was constitutional, as the gudelines, in the interval, had become merely advisory.
This substantive shift in the law was a sharp reversal from precedent, legitimately causing the petitioners not to raise the issue on direct appeal.
A second substantive change in the law that removed an alternate basis for the sentence of one of the petitioners did not trigger a mandatory limitation period for filing the writ, as it would merely have shifted the ultimate basis for the sentence.
A plea deal carve out excepting any constitutionally impermissible factor incorporates any unconstitutional input present at sentencing.
Prior offenses should be considered categorically when deciding whether the conviction is a valid predicate.
(Important decision. Again, all this is quick work. Don't rely.)
Federal Circuit: Personalized Media v. Rovi Guides
Trademarks - Must Read.
En Banc.
Lanham Act provision barring registration of disparaging marks TKO'd by First Amendment under both strict and intermediate scrutiny.
Concurrence: Also void for vagueness.
C/D: Constitutional as to commercial speech, unconstitutional as to political speech. [NB case at bar is an Asian-American band wanting to trademark the name "The Slants".]
Dissent: Nope
Other Dissent: Nope.
110 Pages.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1203.Opinion.12-18-2015.1.PDF
En Banc.
Lanham Act provision barring registration of disparaging marks TKO'd by First Amendment under both strict and intermediate scrutiny.
Concurrence: Also void for vagueness.
C/D: Constitutional as to commercial speech, unconstitutional as to political speech. [NB case at bar is an Asian-American band wanting to trademark the name "The Slants".]
Dissent: Nope
Other Dissent: Nope.
110 Pages.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1203.Opinion.12-18-2015.1.PDF
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