Criminal Law Library Blog

Findlaw Case Summaries September 1-5, 2008.

To view these cases distributed by Findlaw.com you must first sign in to Findlaw.com. "Findlaw summaries [may] include opoinions that have not yet been released for publication and may be subject to modification, correction or withdrawl

U.S. 2nd Circuit Court of Appeals, September 05, 2008
Miner v. Clinton County, No. 071625
In cases alleging violations of due process and equal protection stemming from defendant county's foreclosure of plaintiffs' properties as a result of unpaid property taxes, grant of summary judgment for defendants is affirmed where: 1) due process does not require actual notice of foreclosure; 2) defendants' actions were reasonably calculated under the circumstances to provide notice of foreclosure; 3) plaintiffs were not entitled to additional notice of default judgment where the previous notice of foreclosure met the requirements of due process; 4) defendants did not violate plaintiffs' rights to due process and equal protection of the laws by refusing to accept redemption after default judgment was entered or refusing to grant plaintiffs a share in the surplus from a tax sale; and 5) there is no merit in plaintiffs' claim that reasonable restrictions on the method of payment of long overdue taxes, such as requiring payment by cash, money order, or certified check, violat! e due process. Read more...

U.S. 6th Circuit Court of Appeals, September 02, 2008
Plinton v. County of Summit, No. 073985, 074103
"In a a claim by family of student-plaintiff for violation of constitutional rights by malicious prosecution for marijuana trafficking, judgment of district court in favor of defendant-county is affirmed where: 1) plaintiff failed to void a waiver of any of action because the act or omission was outside the scope of the officer's office in the only way provided by the statutory scheme, to which plaintiff had elected as a part of the quid pro quo; 2) plaintiff failed to produce any probative evidence to support his assertion that defendant-county failed to train officer; 3) plaintiff lacked standing to challenge university's policy where he failed to demonstrate a credible threat of future injury; and 4) circumstances were not "unusual and limited" enough to warrant reformation of lower court order barring plaintiff from advancing wrongful death claim".

U.S. 6th Circuit Court of Appeals, September 02, 2008
Slusher v. Terry, No. 071756
"In a claim by plaintiff that defendant deputies seized her in violation of her Fourth Amendment rights during the course of the officers' visit to her property to aid a neighbor's reclamation of property pursuant to a court order, summary judgment in favor of defendants is affirmed where: 1)defendants were entitled to qualified immunity because plaintiff failed to demonstrate that the force used was clearly established as unconstitutional in a "particularized" sense; 2) plaintiff failed to present any facts that would allow a jury to support her section 1983 claim against the county; and 3) plaintiff's own testimony demonstrates the officers did not conduct an illegal search and the only property searched for or seized was the property listed on the court order."

U.S. 6th Circuit Court of Appeals, September 02, 2008
Greenwell v. Parsley, No. 075694
"In a federal action alleging that former sheriff-defendant violated former deputy sheriff-plaintiff's First and Fourteenth Amendment right to run for political office when he fired him, summary judgment in favor defendant is affirmed where according to prior precedent, Carver v. Dennis, if there is nothing in the record to belie the conclusion that the termination was because of the political beliefs, there is no constitutional violation."

U.S. 7th Circuit Court of Appeals, September 04, 2008
Renken v. Gregory, No. 07-3126
"In a 42 U.S.C. section 1983 suit alleging that state university officials had retaliated against plaintiff for exercising his First Amendment rights when he complained about the university's use of grant funds, summary judgment for defendants is affirmed where plaintiff's complaints were made in his capacity as an employee and were therefore not protected by the First Amendment."

U.S. 7th Circuit Court of Appeals, September 05, 2008
Woodruff v. Mason, No. 07-2240
"In a 42 U.S.C. section 1983 suit alleging that state social-services employees had retaliated against plaintiff-healthcare provider by instigating the launch of a predatory enforcement campaign aimed at driving plaintiff out of business, summary judgment for defendants is affirmed where: 1) plaintiff did not produce sufficient evidence to demonstrate a causal link between its protected First Amendment activity and the alleged retaliation by defendants; and 2) plaintiff did not produce sufficient evidence to substantiate any of its three equal-protection claims."

U.S. 8th Circuit Court of Appeals, September 02, 2008
Lowry v. Watson Chapel Sch. Dist., No. 07-3437, 08-1139
In a student speech case, a holding of First Amendment violation, amendment of a jury verdict to reflect nominal damages, entry of permanent injunction, and award of attorney's fees are all affirmed where: 1) the school imposed discipline to punish the protest of a school dress policy by wearing armbands which caused no material disruption or interruption to school; and 2) the jury failed to find nominal damages although First Amendment violation was established. Read more...

U.S. 8th Circuit Court of Appeals, September 03, 2008
Ritchey v. City of Independence, No. 07-2109
"In an employment action under Title VII and 42 U.S.C. section 1983, summary judgment to defendant is affirmed where: 1) defendant presented independently verifiable evidence of a good faith non-retaliatory reason for plaintiff's discharge; and 2) plaintiff's claims were tied to no provision of the Constitution."

U.S. 8th Circuit Court of Appeals, September 04, 2008
Milavetz, Gallop & Milavetz v. US, No. 07-2405
"In a case challenging application of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), summary judgment for plaintiff is affirmed in part and reversed in part where: 1) attorneys providing bankruptcy assistance are "debt relief agencies" under the BAPCPA, 11 U.S.C. section 526(a)(4) is unconstitutional as applied to these attorneys; but 2) sections 528(a)(4) and (b)(2) are constitutional."..

U.S. 8th Circuit Court of Appeals, September 05, 2008
Barnett v. Roper, No. 07-1234
"Denial of a petition for habeas corpus is affirmed where: 1) the Missouri procedural rule requiring sufficient pleading before granting an evidentiary hearing on ineffective assistance of counsel constituted independent and adequate state grounds barring federal review; 2) there was no clear and convincing evidence of discriminatory intent in jury selection; and 3) the prosecutor's comments at trial did not deny defendant due process."

U.S. 8th Circuit Court of Appeals, September 05, 2008
Ratliff v. Astrue, No. 07-2317
"In an attorney's fee dispute interpreting the Equal Access to Justice Act (EAJA), an award of attorney's fees offset against debts owed by the prevailing party to the federal government was reversed where: 1) the attorney independently sued under the Fourth Amendment to collect fees not offset against the prevailing party's debts; and 2) attorney's fees awarded under the EAJA are awarded to the prevailing party’s attorney, not the prevailing party.".

U.S. 8th Circuit Court of Appeals, September 05, 2008
US v. Ault, No. 07-3608
"In a case challenging enhanced sentencing based on misdemeanors in which defendant was unrepresented, the sentence imposed is affirmed as not violating the Sixth Amendment right to counsel where: 1) two of the four misdemeanors considered did not include incarceration; and 2) plaintiff waived counsel in the remaining two misdemeanor matters."

U.S. 9th Circuit Court of Appeals, September 03, 2008
Oscar v. Alaska Dept. of Edu. And Dev., No. 07-35795
"In an suit under the Individuals with Disabilities Education Act (IDEA) and 42 U.S.C. section 1983, the award of attorney fees to defendant is reversed and vacated because the district court's dismissal without prejudice does not confer prevailing party status on defendant."

U.S. 9th Circuit Court of Appeals, September 03, 2008
Villegas v Gilroy Garlic Festival, No. 05-15725
"In a civil rights action against the City of Gilroy and the Gilroy Garlic Festival Association, alleging First Amendment violations involving the festival's dress code, summary judgment to defendants and a holding of no state action or municipal liability are affirmed where: 1) the festival association is not a state actor; and 2) the City had no part in forming the dress code policy and it is not a constitutional violation for a police officer to enforce a private entity's rights."

U.S. 9th Circuit Court of Appeals, September 04, 2008
Paulino v. Harrison, No. 07-55429
"In a habeas corpus case, grant of a habeas petition due to unconstitutionally constituted jury is affirmed where the petitioner made a strong prima facie showing of discriminatory intent in the pattern of the prosecutor's striking of potential jurors and the state offered no non-speculative evidence of non-discriminatory intent in jury selection."

U.S. 9th Circuit Court of Appeals, September 05, 2008
Wong v. Bush, No. 07-16799
"In a case alleging First Amendment and National Environmental Protection Act violations by the U.S. Coast Guard in establishing safety zones insulating a private super-ferry from blockade by local protesters, denial of declaratory judgment is affirmed despite plaintiff's standing to sue where: 1) the safety zones established by the Coast Guard did not violate the First Amendment; and 2) the Coast Guard need not consider the secondary environmental effects of the super-ferry itself in the decision to establish safety zones."

U.S. 11th Circuit Court of Appeals, September 02, 2008
Douglas Asphalt Co. v. Qore, Inc., No. 07-14849
"In an equal protection claim alleging that plaintiff asphalt company was wrongly singled out and treated differently than all other paving contractors, denial in part of defendants' motion on the pleadings is reversed and remanded where plaintiff failed to establish a legally cognizable "class of one" claim; and 2) plaintiff failed to adequately allege a similarly situated comparator."

U.S. 11th Circuit Court of Appeals, September 04, 2008
Powell v. Barrett, No. 0516734
"In Fourth Amendment claims by plaintiffs who were strip searched as part of the point-of-entry booking process before they were placed into the general jail population for the first time, dismissal of claims is affirmed and case is remanded where it follows from precedent in the decision in Bell v. Wolfish that the less intrusive searches in this case do not violate the Fourth Amendment."

California Appellate Districts, September 02, 2008
P. v. Hernandez, No. B203151
"In conviction for oral copulation with a person under the age of 16, denial of criminal defendant's motion to terminate the mandatory, lifetime requirement that he register as a sex offender is reversed and remanded where: 1) this appeal is cognizable without a certificate of probable cause; and 2) the mandatory sex offender statute is unconstitutional as applied to section 288a, subdivision (b)(2)."