March 26, 2011

Findlaw Case Summaries: Constitutional Law March 21-25, 2011

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March 25, 2011.

United States First Circuit, 03/24/2011
Decotiis v. Whittemore, No. 10-1242
In a First Amendment dispute involving allegations of retaliation through adverse employment action, Rule 12(b)(6) dismissals by district court is affirmed in part and vacated in part where plaintiff failed to make a constitutional claim against all defendants.

United States Third Circuit, 03/21/2011
Tri-M Group v. Sharp, No. 10-2365
In a dormant commerce clause challenge to a state regulatory scheme for the training and compensation of apprentices on construction projects, summary judgment in favor of plaintiff is affirmed where refusal to recognize out-of-state registered apprentices facially discriminated against out-of-state contractors without advancing a legitimate state interest.

United States Ninth Circuit, 03/22/2011
Young v. Honolulu, No. 09-16034
In a constitutional dispute on whether a city repeal ordinace violated the Contracts Clause of the United States Constitution, summary judgment is affirmed where ordinance did not breach any of preexisting contractual obligation.

United States Ninth Circuit, 03/22/2011
Hunt v. Los Angeles, No. 09-55750
In a 42 U.S.C. section 1983 dispute challenging the constitutionality of several city ordinances aimed at preventing vending on the Venice Beach Boardwalk, judgment by district court is affirmed in part and remanded in part where court did not abuse discretion but improperly failed to address one of the challenges in the first instance. .

United States Ninth Circuit, 03/25/2011
Stewart and Jasper Orchards v. Salazar, No. 10-15192
District court judgment that application of Sections 7 and 9 of the Endangered Species Act to the California delta smelt does not violate the Commerce Clause is affirmed. ..

November 15, 2010

Findlaw Case Summaries: Constitutional Law

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November 8-12 2010.

United States First Circuit, 11/12/2010
Freedom from Religion Found. v. Hanover Sch. Dist., No. 09-2473
In plaintiffs' suit seeking a declaration that the federal Pledge statute and the recitation of the Pledge of Allegiance in New Hampshire's public schools violates various provisions of the U.S. Constitution, the New Hampshire Constitution, and federal and state law, district court's dismissal of all of plaintiffs' federal claims on their merits is affirmed as the New Hampshire School Patriot Act and the voluntary, teacher-led recitation of the Pledge by the state's public school students do not violate the Constitution. .

United States Sixth Circuit, 11/09/2010
McCarthy v. City of Cleveland, No. 09-4149
In plaintiffs' 42 U.S.C. section 1983 suit against the City of Cleveland, claiming that the city's decision to enforce its traffic camera ordinance against drivers who lease their cars constituted an unconstitutional taking of private property without just compensation because the ordinance originally did not provide for lessee liability, district court's dismissal of the suit for failure to state a cause of action under the Takings Clause of either the United States or Ohio Constitution is affirmed in part, reversed in part and remanded where: 1) plaintiffs have failed to plead a cause of action under the Takings Clause as the challenged ordinance does not seize or otherwise impair an identifiable fund of money; but 2) the district court's judgment on plaintiffs' state law claims is reversed and remanded as the district court did not analyze plaintiffs' claim which asserted that the city's enforcement of the traffic camera ordinance unjustly enriched the city. .

United States Sixth Circuit, 11/09/2010
Sykes v. Anderson, No. 08-2088
In plaintiffs' 42 U.S.C. section 1983 actions against several police officers, asserting claims of false imprisonment, malicious prosecution, and denial of due process, and against the City of Detroit claiming that the city failed to respond to citizen complaints and that it failed to train and supervise its employees, following their overturned convictions for state crimes of "Larceny by Conversion" and "False Report of a Felony," jury verdict in favor of the plaintiffs on their claims against two police officers and award of over $2.5 million in compensatory and punitive damages is affirmed in part and remanded in part where: 1) defendants' qualified immunity claim is waived as their failure to make a pre-verdict motion for judgment as a matter of law under Rule 50(a) on the grounds of qualified immunity precluded them from making a post-verdict motion under Rule 50(b) on that ground; 2) district court's judgment as to plaintiffs' claim of false arrest is affirmed because probable cause was lacking at the time the officer submitted a warrant application; 3) judgment against the defendants as to the plaintiffs' claims for malicious prosecution is affirmed as the record contains ample evidence that the officer influenced or participated in the ultimate decision to prosecute plaintiffs by way of his knowing misstatements to the prosecutor; 4) judgment against the defendants as to the plaintiffs' due-process claims is affirmed; 5) district court did not abuse its discretion in denying defendants' motion for a new trial; and 6) because the district court failed to articulate a basis for its denial of the defendants' motion for remittitur, the matter is remanded for the sole purpose of having the district court explain its reasons for denying remittitur

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October 18, 2010

Findlaw Case Summaries: Constitutional Law

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October 11-15 2010.

United States First Circuit, 10/14/2010
Museum of Fine Arts, Boston v. Seger-Thomschitz
In an art museum's action for a declaratory judgment to confirm its rightful ownership of a painting, which a sole surviving heir of the painting's artist claimed that the artist was forced to sell under duress after Austria was annexed by Nazi Germany in 1938, district court's grant of summary judgment for the museum on statute of limitations grounds is affirmed where: 1) because defendant did not make a demand on the museum more than three years after her causes of action accrued, summary judgment was properly granted on the museum's limitations defense; 2) defendant has not shown that application of the Massachusetts statute of limitations to the Massachusetts causes of action in this case would cause a significant conflict with, or threat to, the federal interests and policies embodied in section 510(c)(3); and 3) the Massachusetts statute of limitations does not conflict with the federal government's foreign policy. ..

United States First Circuit, 10/15/2010
Statchen v. Palmer
In plaintiff's 42 U.S.C. section 1983 suit against police officers, claiming that they used excessive force in arresting him for public intoxication and in transporting him from a station house to jail, district court's grant of summary judgment in favor of defendants on the basis of qualified immunity is affirmed as the district court had no basis for sending the case to a jury because plaintiff's own deposition provided no evidence to indicate that the force exerted was unnecessary, or that a reasonable police officer would have thought otherwise.

United States Second Circuit, 10/12/2010
Amore v. Novarro
In a civil rights action alleging a false arrest, a denial of summary judgment based on qualified immunity is reversed where the district court erred in deciding that it would have been clear to a reasonable officer in defendant's position that making the arrest was unlawful.

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October 13, 2010

Findlaw Case Summaries: Constitutional Law

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October 4-8, 2010.

United States First Circuit, 10/08/2010
Tevlin v. Spencer
District court's denial of defendant's request for habeas relief from his convictions for first-degree murder, armed robbery, and assault and battery by means of a dangerous weapon, is affirmed where: 1) defendant has failed to demonstrate the existence of ineffective assistance of counsel in any of his theories; and 2) the Massachusetts discovery procedures are not on their face unconstitutional and defendant has not established that their application here violated due process. .

United States Second Circuit, 10/04/2010
Analytical Diagnostic Labs, Inc. v. Kusel
In a class-of-one equal protection claim alleging that defendants, employees of the New York State Department of Health, intentionally and maliciously subjected plaintiff-clinical testing laboratory to an intense and unwarranted degree of regulatory scrutiny, summary judgment for defendant is affirmed where there was no record evidence raising a question of fact as to whether: 1) other labs were similarly situated; or 2) even assuming other labs were similarly situated, that the same decisionmakers were aware of the similarity and treated plaintiff differently.

United States Second Circuit, 10/08/2010
Byrne v. Rutledge
In an action alleging that Vermont’s denial of plaintiff's requested vanity license plate, on the grounds that it contained a religious message in violation of state law prohibiting such messages on vanity license plates, violated the Free Speech Clause, the Equal Protection Clause, and the Due Process Clause, summary judgment for defendants is reversed where Vermont's ban on all vanity plate combinations that "refer, in any language, to a ... religion" or "deity" constituted unconstitutional viewpoint discrimination. .

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September 20, 2010

Book Review: Making Our Democracy Work, By Justice Stephen Breyer*

I often find there is little time to read all of the books I would like, or even need, to and therefore find myself resorting to book reviews. Last Sunday I read a review that to me seemd exceptional and would like to share it with you.

David Badertscher


Evolving Circumstances, Enduring Values
Published: September 17, 2010
A Supreme Court justice sees judges not as indifferent observers, but as partners in preserving American democracy.

An excerpt from the Review:

"...Breyer embraces, indeed relishes, complexity. Like a law professor, he proceeds mostly by inductive reasoning, offering specific examples — including some of the most contentious Supreme Court cases of recent years — to show how judges can patrol constitutional boundaries while, at the same time, giving people room to govern themselves. Here, as in his previous book, 'Active Liberty,' Breyer places emphasis on the purposes of statutes and of constitutional provisions, the real-world consequences of judicial decisions and the need to apply the Constitution’s basic values to changing circumstances."
*As a bonus for those who are interested, here is a link to an video/audio of Supreme Court Associate Justice Stephen Breyer in conversation with Jeffrey Rosen and Pul Holdengraber on September 20, 2010 at the New York Public Library.

September 20, 2010

Findlaw Case Summaries: Constitutional Law

Constitutional Law

United States Second Circuit, 09/14/2010
Chase Grp. Alliance LLC v. N.Y. Dep't of Fin.
In an action claiming that plaintiffs' right to due process was violated by liens placed upon their properties by the City of New York, dismissal of the action is affirmed where the complaint alleged that New York law afforded appellants a right to notice and access to a tribunal to assert their objections before the liens were imposed, and thus, appellants' right to due process was not violated. ..

United States Second Circuit, 09/17/2010
Faghri v. Univ. of Conn.
In an action claiming that defendants unconstitutionally retaliated against plaintiff for his exercise of his right to free speech in violation of the First Amendment and violated his right to due process under the Fourteenth Amendment when they removed him from his position as dean, a denial of summary judgment based on qualified immunity is reversed where plaintiff had no clearly established right to remain as dean while voicing opposition to the policies of the team he was hired to be part of.

United States Second Circuit, 09/17/2010
Van Allen v. Cuomo
In an action challenging New York Election Law sections 5-210 and 5-304, which prevented plaintiff's enrollment in a party from becoming effective until after the November 2007 general election, dismissal of the complaint is affirmed where plaintiff did not indicate that he currently intended or had already attempted to change his party enrollment again, and thus his claims were moot.

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September 9, 2010

Same Sex Marriages: Legal Issues

Same-Sex Marriages: Legal Issues
BY: Alison M. Smith, Legislative Attorney
Report No. RL31994
Subjects: Families; Law; Minorities
Congressional Research Service Reports, 111th Congress (8/18/2010; Posted: 9/8/2010)


The recognition of same-sex marriages generates debate on both the federal and state levels. State legislators in Vermont and New Hampshire have legalized same-sex marriages. At the same time, federal and state courts are beginning to address the validity of statutory and constitutional provisions limiting marriage to heterosexual couples. State courts in New Jersey, Massachusetts, California, Connecticut, and Iowa have held that denying gay and lesbian couples the right to marry violates their state constitution. Some state courts have also found that domestic partnership/civil union laws are not the constitutional equivalent of civil marriage. These variations raise questions concerning the validity of such unions outside the contracted
jurisdiction and have bearing on the distribution of federal benefits
Questions regarding same-sex marriages figure prominently in California. After the state supreme court’s decision finding that denying same-sex couples the right to marry violated the state constitution, voters approved a constitutional amendment (“Proposition 8”) limiting the validity and recognition of “marriages” to heterosexual couples. Subsequent court challenges ensued. In Strauss v. Horton (207 P.3d 48 (CA 2009)), the California Supreme Court found that Proposition 8 is a properly enacted limited constitutional amendment. However, the court found that the amendment applies only prospectively, and does not affect the estimated 18,000 same-sex marriages that occurred prior to the amendment’s passage. Proposition 8 opponents subsequently challenged the amendment on constitutional grounds. On August 4, 2010, a federal court judge in the Northern District of California found that Proposition 8 violates both the equal protection and due process clauses of the Fourteenth Amendment. In Perry v. Schwarzenegger (2010 WL3025614 (N.D. Ca. August 4, 2010)), the court found that the federal constitutional right to marry applies equally to same-sex couples and that Proposition 8 is not rationally related to any legitimate government purpose. This is the first time a federal court has recognized such a right.

Currently, federal law does not recognize same-sex marriages. The Defense of Marriage Act
(DOMA), P.L. 104-199, prohibits federal recognition of same-sex marriages and allows
individual states to refuse to recognize such marriages performed in other states. Section 3 of
DOMA requires that marriage, for purposes of federal benefit programs, must be defined as the
union of one man and one woman. As federal agencies grapple with the interplay of DOMA and
the distribution of federal marriage-based benefits, lower courts are beginning to address the
DOMA’s constitutionality. On July 8, 2010, a U.S. District Court in Massachusetts found section 3 of DOMA unconstitutional in two companion cases (Gill v. Office of Personnel Management, 699 F.Supp. 2d 374 (D. Mass. 2010) and Massachusetts v. U.S. Dept. of Health and Human Services, 698 F. Supp. 2d 234 (D. Mass. 2010)) brought by same-sex couples married in Massachusetts. At issue were a myriad of benefits. In one case, the court found that DOMA exceeded Congress’s power under the Spending Clause and violated the Tenth Amendment. In the other case, the court held that Congress’s goal of preserving the status quo did not bear a rational relationship to DOMA and thus, violated the Fifth Amendment’s Equal Protection Clause. It is unclear whether the government will appeal either of these cases.

This report discusses DOMA and legal challenges to it. It reviews legal principles applied to
determine the validity of a marriage contracted in another state and surveys the various
approaches employed by states to enable or to prevent same-sex marriage. This report also
examines House and Senate resolutions introduced in previous Congresses proposing a
constitutional amendment and limiting federal courts’ This report also
examines House and Senate resolutions introduced in previous Congresses proposing a
constitutional amendment and limiting federal courts’ jurisdiction to hear or determine any
question pertaining to the interpretation of DOMA.

September 8, 2010

Book Review:The Conservative Assault on the Constitution

AUTHOR: Erwin Chemerinsky
PUBLICATION DATE: October 5, 2010
PUBLISHER: Simon & Schuster
PAGE COUNT: 305 pp. + index
ISBN: 978-1-4165-7468-2
PRICE: $27.00

A prolific author and law school dean, Chemerinsky brings his expertise in Constitutional law to his fifth book on the topic, as he analyzes recent trends in modern American jurisprudence which he believes are tipping the legal scales too far to the right. The author shows how historically accepted principles of American Constitutional law, such as separation of church and state, have been diluted by a new conservative mentality that is political, not legal, in nature and has thus resulted in a new brand of political jurisprudence in Constitutional law that is more an offspring of the ballot box than the natural and organic evolution of legal theory, thus allowing, for example, public displays of religious symbols that would have been banned by earlier, more liberal, courts. Chemerinsky also asserts that the implementation of the death penalty is fraught with unfair procedures and ineffective representation by counsel, conditions that are exacerbated by an increasingly conservative Federal judiciary and legislation enacted by a conservative Congress that makes it harder for individuals, even those wrongly convicted, to gain relief from the federal courts. Aimed at a scholarly audience, the author clearly makes the case that conservative ideology has invaded, and thus diluted, traditional Constitutional rights and liberties. Recommended for academic, public, and law libraries.

Philip Y. Blue, New York State Supreme Court Criminal Branch Law Library, First Judicial District, New York, New York

August 23, 2010

Findlaw Case Summaries: Constitutional Law

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August 16-20, 2010.

United States Third Circuit, 08/18/2010
McCauley v. Univ. of the Virgin Islands
In plaintiff's 42 U.S.C. section 1983 suit against a university, its president and two other individuals arising from the university's decision charging plaintiff with violating provisions of the Student Code of Conduct (Code) for his alleged harassment of an individual who had accused his friend of rape, claiming that various Code provisions violated the First Amendment, district court's judgment is affirmed in part and reversed in part where: 1) district court's dismissal of all claims against the university in holding that it was not a "person" for purposes of section 1983 is affirmed; 2) the two individuals, as employees of the university acting in their official capacities, were likewise not "persons" for purposes of section 1983; 3) adjudication of plaintiff's as-applied challenge to Major Infraction Paragraph E was unnecessary because the district court had already concluded that the paragraph was facially unconstitutional; 4) district court's dismissal of Paragrap h B for lack of an injury should be reversed and judgment should be entered in favor of the two employees because that paragraph has a limited, constitutional construction; and 5) Paragraphs H and R are unconstitutional infringements on students' First Amendment right to free speech.

United States Sixth Circuit, 08/17/2010
McKenna v. Honsowetz
In plaintiff's 42 U.S.C. section 1983 suit against two police officers who responded to a 911 report that plaintiff was having a medical seizure and and thereafter allegedly violated his Fourth Amendment rights, district court's denial of defendants' motions for summary judgment based on qualified immunity and reduction of an award for pain and suffering from $275,000 to $10,000 are affirmed where: 1) whether the officers were entitled to qualified immunity depends on whether they acted in a law-enforcement capacity or in an emergency-medical-response capacity when engaging in the conduct that plaintiff claimed violated the Fourth Amendment, and here, the view of the facts undoubtedly supports a finding that the officers acted in a law-enforcement capacity; 2) the record contained ample evidence to support the determination that the officers unreasonably searched the home and seized plaintiff; and 3) plaintiff's appeal of the reduction in the award is denied as the Suprem e Court has clearly stated that a plaintiff cannot appeal a remittitur after he has accepted it. .

United States Sixth Circuit, 08/20/2010
Hussein v. City of Perrysburg
In homeowners' suit against a city, a city inspector and other individuals in their official and personal capacities, claiming that defendants violated their procedural and substantive due process rights by ordering a construction worker to remove a temporary asphalt layer in their driveway, judgment of the district court is reversed and remanded where: 1) defendants are entitled to qualified immunity because state officials are permitted under the Constitution to inform citizens of the officials' view that they are violating state or local law and state officials are also permitted to threaten litigation or prosecution if citizens do not agree to conform their actions to state or local law; and 2) defendant did not violate plaintiffs' substantive due process rights as the asphalt driveway incident did not implicate specific constitutional guarantees.

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August 13, 2010

Findlaw Case Summaries - Constitutional Law

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August 2-6, 2010.

United States First Circuit, 08/04/2010
IMS Health Inc. v. Mills
In a challenge to the constitutionality of 22 Me. Rev. Stat. Ann. tit. 22, section 1711-E(2-A), which allows prescribers licensed in Maine to choose not to make their identifying information available for use in marketing prescription drugs to them, district court's grant of plaintiffs' motion for preliminary injunction in prohibiting Maine from enforcing section 1711-E(2-A) on the basis of plaintiffs' First Amendment claims is reversed where: 1) plaintiffs' First Amendment challenges fail for the reasons stated in Ayotte, as the statute regulates conduct, not speech, and even if it regulates commercial speech, that regulation satisfies constitutional standards; 2) the Maine statute constitutionally protects Maine prescribers' choice to opt in to confidentiality protection to avoid being subjected to unwanted solicitations based on their identifying data; 3) plaintiffs' argument that the statute is void for vagueness is rejected; 4) section 1711-E(2-A) regulates prescript ion drug information intermediaries' out-of-state use or sale of opted-in Maine prescribers' data, and this interpretation does not raise constitutional concerns under the dormant Commerce Clause; and 5) nor would section 1711-E(2-A)'s regulation of prescription drug information intermediaries' out-of-state use of sale of opted-in Maine prescribers' identifying data raise constitutional concerns as a disproportionate burdens on interstate commerce under Pike.

United States Second Circuit, 08/02/2010
Scott v. Fischer
In an action claiming that defendants deprived plaintiff of liberty without due process of law both by placing her on mandatory post-release supervision without a proper judicial sentence and by failing to take action to remove the supervision before or after she was rearrested for violating the terms thereof, dismissal of the action is affirmed where defendants were entitled to qualified immunity for all actions they took prior to the Second Circuit's decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), and further, plaintiff has not pleaded sufficient facts to state a claim upon which relief can be granted for any actions the defendants took thereafter. ..

United States Second Circuit, 08/03/2010
US v. Broxmeyer
Defendant's convictions for production of child pornography and for transportation of a minor across state lines with the intent to engage in criminal sexual activity are reversed where: 1) the prosecution failed to prove beyond a reasonable doubt that defendant persuaded, induced, or enticed the victim to take Photos 1 and 2; and 2) an 18 U.S.C. section 2423(a) conviction cannot lie where the unlawful sexual act occurs before the crossing of state lines, and where there is no evidence of an intent to commit a sexual act when state lines were crossed.

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August 5, 2010

U.S. District Court Rejects Same Sex Marriage in California

On Wednesday August 4, 2020 Chief U.S. District Judge Vaughn Walker in San Francisco struck down California's ban on same sex marriage in a 136 page opinioon, ruling that voter approved Proposition 8 violates the constitutional right of equal protection. Proposition 8 defines marriage as a union between a man and a woman.

This high profile case, Kristin Perry et. al. v. Arnold Schwarzenegger Case3:09-cv-02292-VRW, is being watched closely by both supporters and opponents of same sex marriage, as many believe it will make its way to the U.S. Supreme Court where it could result in a landmark decision.

Below are links to a discussion of this decision in the August 15 New York Times and to the decision as decided on Wednesday.

Article by James Wilson and Mary McKay in August 15 New York Times.

Kristin Perry et. al. v. Arnold Schwarzenegger Case3:09-cv-02292-VRW

June 30, 2010

ABA Case Update: U.S. Supreme Court Case Related to Criminal Justice

A Service from the ABA Criminal Justice Section (CJS) *,*


United States Supreme Court Decision: Decided: June 28, 2010

In a 5-4 decision, the Supreme Court held that the Fourteenth Amendment of the US Constitution protects an individual’s Second Amendment right to keep and bear arms from interference by state or local gun control legislation.

In 2008, the Court ruled in District of Columbia v. Heller, 554 U. S. ___ that the Second Amendment right for an individual to keep and bear arms for self-defense was infringed upon by a District of Columbia gun control law banning the possession of guns in the home. Immediately following the Heller ruling, this federal suit was filed in Chicago, alleging that the city’s law banning possession of unregistered handguns was violating the Second and Fourteenth Amendments. Petitioners argued that the Second Amendment right to keep and bear arms was protected by both the Privileges or Immunities clause and the Due Process clause in the Fourteenth Amendment. Noting that the Heller ruling had refrained from deciding whether the Second Amendment applied to state and local legislation, the District Court upheld the Chicago law while citing precedent from several previous handgun ban cases. The Seventh Circuit Court of Appeals affirmed.

The Court’s decision traced the evolution of previous Supreme Court rulings which sought to determine which elements within the Bill of Rights were protected by the Fourteenth Amendment against state and local infringement. The Court’s 1873 decision in Slaughter-House Cases, 16 Wall. 36, called for a very narrow view of the Fourteenth Amendment’s applicability to state law. Using Slaughter-House as precedent, the Court decided during the late 19th century in Cruikshank, 92 U. S. 542, Presser, 116 U. S. 252, and Miller, 153 U. S. 535 that Second Amendment rights were not covered under the Fourteenth Amendment. Over time, the Court gradually widened its interpretation, later holding that an element in the Bill of Rights that was “fundamental to our Nation’s particular scheme of ordered liberty and system of justice” would be protected by the Fourteenth Amendment (Duncan v. Louisiana, 391 U. S. 145, 149). The Court also cited Heller’s holding that the right to self-defense, protected by the Second Amendment, was held to be a “fundamental” right as defined in Duncan. In addition, the Court noted that Congressional debates over the Fourteenth Amendment’s ratification “referred to the right to keep and bear arms as a fundamental right deserving of protection.” Accordingly, the Court held that the Fourteenth Amendment protects the Second Amendment right to keep and bear arms against infringement by state or local legislation.

Judgment reversed and remanded.

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II–C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

Decision available at:

Authored by: Caleb W. Skeath, CJS Intern
*We both acknowledge and appreciate the efforts and dedication of the CJS Legal Intern Caleb W. Skeath in preparing the above commentary.

June 30, 2010

Findlaw Case Summaries: Constitutional Law - June 21-25, 2010

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June 21-25, 2010.

U.S. Supreme Court, June 21, 2010
Holder v. Humanitarian Law Project, No. 08–1498
In a constitutional challenge to 18 U.S.C. section 2339B(a)(1), which prohibited knowingly providing material support or resources to a foreign terrorist organization, the Ninth Circuit's affirmance of partial judgment for plaintiffs is reversed in part where the material support statute was constitutional as applied to the particular forms of support that plaintiffs sought to provide to foreign terrorist organizations. Read more...

U.S. Supreme Court, June 24, 2010
Doe v. Reed, No. 09–559
In a First Amendment challenge to the Washington Public Records Act based on its provision permitting the disclosure of referendum petition signers' names and addresses, the Ninth Circuit's reversal of the district court's preliminary injunction in favor of plaintiffs is affirmed where disclosure of referendum petitions does not as a general matter violate the First Amendment.

U.S. 1st Circuit Court of Appeals, June 21, 2010
Rodriguez-Garcia v. Miranda-Marin, No. 08-2319
In a municipal employee's suit claiming that she was transferred to another position in retaliation for testimony she gave before the Puerto Rico Government Ethics Office in violation of her rights under the First Amendment and Puerto Rico law, judgment of the district court is affirmed where: 1) the evidence presented at trial is sufficient to support a jury finding that plaintiff suffered an adverse employment action sufficient to support her section 1983 claim; 2) defendants would not have taken the same adverse employment action in the absence of her protected conduct; 3) the mayor was personally liable for retaliation under section 1983; 4) the municipality is liable under section 1983; 5) the court did not abuse its discretion in affirming the damages award in the amount of $350,000; and 6) the court's determination that plaintiff waived her Puerto Rico Law 115 claim was not an abuse of discretion.

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June 23, 2010

Findlaw Case Law Summaries: Constitutional Law

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June 14 - 18, 2010.

U.S. Supreme Court, June 17, 2010
Stop the Beach Renourishment, Inc. v. Fla. Dept. of Env. Protection, Inc., No. 08–1151
In an action challenging the Florida Department of Environmental Protection's approval of permits to restore a portion of beach eroded by several hurricanes, the Florida Supreme Court's holding that the approval of the permits did not unconstitutionally deprive plaintiffs of littoral rights without just compensation is affirmed where there could be no taking unless petitioner could show that, before the Florida Supreme Court's decision, littoral property owners had rights to future accretions and to contact with the water superior to the State's right to fill in its submerged land.

U.S. Supreme Court, June 17, 2010
City of Ontario v. Quon, No. 08–1332
In an action by police officers against the city employing them, claiming that defendants violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of plaintiff-officer’s pager messages, the Ninth Circuit's reversal of summary judgment for defendants is reversed where, because the city's search of plaintiff’s text messages was reasonable, defendants did not violate plaintiffs’ Fourth Amendment rights.

U.S. 1st Circuit Court of Appeals, June 17, 2010
Cortes-Reyes v. Salas-Quintana, No. 08-2210
In a political discrimination suit brought by thirty-six former Ranger cadets of the Puerto Rico Department of Natural and Environmental Resources, claiming they were terminated due to their political affiliation with the New Progressive Party, district court's judgment is affirmed in part and vacated in part where: 1) jury's finding of a due process violation and a related award of compensatory damages is vacated as the defendants were entitled to qualified immunity on the due process claim; and 2) jury's finding of a First Amendment violation and the award of nominal and punitive damages are affirmed

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June 22, 2010

ABA Criminal Justice Section: U.S. Supreme Court Brief Prepared by Professor Rory Little

Holder (Attorney General) v. Humanitarian Law Project et. al. 08-1498

A Service from the ABA Criminal Justice Section,

This summary has been created by Professor Rory K. Little (, U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” -- that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S. Supreme Court Summaries – Criminal Cases June 21, 2010

Holder (Attorney General) v. Humanitarian Law Project et al.,

On June 21, although the Court reversed the Ninth Circuit in all four decisions it issued (!), only one was a criminal case. Humanitarian Law Project addresses the long-running attack on the “material support to a foreign terrorist organization” criminal statute, 18 U.S.C. § 2339B. Setting a record (I think) for the longest “syllabus” ever (six tiny-type pages), the Court upheld the statute, 6-3, as applied to the facts before it, while reserving decision as to possible future “as applied” questions based on hypotheticals not presented by these plaintiffs. Interestingly, Justice Stevens did not join Justices Breyer, Ginsburg, and Sotomayor in dissent, and a paragraph near the end of the majority opinion (pages 33-34) addressed to a hypothetical statute “prevent[ing] American citizens from training the Japanese Government” during World War II, seems self-consciously to be designed to keep Justice Stevens in the majority fold. It worked.

FIRST AMENDMENT (criminal statute prohibiting provision of “material support” to foreign terrorist organizations upheld in the face of First Amendment and Fifth Amendment vagueness challenges).

Holder (Attorney General) v. Humanitarian Law Project et al., No. 08-1498, 130 S.Ct. ___ (June 21, 2010), reversing in part, affirming in part 552 F.3d 916 (9th Cir. 2009).

Holding (6-3): Statute criminalizing provision of “material support to foreign terrorist organizations” upheld as not unconstitutionally vague or violative of the First Amendment, even as applied to certain “training” activities for such organizations directed at peaceful activities, so long as such support is “independent” and not “directed by or coordinated with” the foreign terrorist organization. Constitutional objections regarding other, hypothetical applications to other activities or speech are reserved.

Facts: In 1996 as part of the AEDPA statute, Congress made it a crime to provide “material support or resources” to a designated foreign terrorist organization (“FTO”). In response to this and other constitutional challenges, Congress subsequently amended the statute twice, to more clearly define “material support” as including “services,” “personnel,” “expert advice or assistance,” and “training … designed to impart a specific skill as opposed to general knowledge;” and to require “knowledge” of the “terrorist designation or the group’s commission of terrorist acts.” Congress also made clear that “individuals who act entirely independently of the foreign organization” were not subject to prosecution, at least under the “personnel” part of the statute.

In 1997, the Secretary of State designated 30 groups as FTOs, Two of the groups filed this challenge to the statute (one group also separately challenged its FTO designation, which was upheld by the DC Circuit and is not at issue here). Both groups alleged that they also engage in non-terrorist “political advocacy” and “humanitarian activities,” and other plaintiffs here alleged that they wanted to assist these organizations in only their lawful, non-violent activities. Specifically, they wanted to provide training to the FTOs “on how to use … international law to peacefully resolve disputes;” “how to petition … the United Nations for relief,” and “political advocacy” on behalf of certain groups allegedly oppressed by the governments of Sri Lanka and Turkey. The plaintiffs alleged that the material support statue was unconstitutionally vague, in that they could not determine which if any of their activities would violate the statute; and also violated the First Amendment as chilling their rights to speech and to association. In a series of opinions issued over a decade, the district court and Ninth Circuit ruled that the statute was unconstitutionally vague insofar as “training, service, or expert advice or assistance” reached “protected advocacy,” but that the statute was not overbroad under the First Amendment.

Roberts (joined by Stevens, Scalia, Kennedy, Thomas, and Alito): First, the lawsuit is justiciable (as one might hope after 12 years of litigation)” as a preenforcement review of a criminal statute that presents “a credible threat of prosecution.” Second, we cannot interpret the statute as limited only to persons who provide material support with a specific intent to further the FTO’s terrorist activities, because it would be “inconsistent with the text of the statute.” Congress expressly added a mental state of “knowledge” to the statute, and we cannot rewrite that merely to “avoid” the constitutional issues (as the dissent suggests).

Third, the Ninth Circuit “did not adhere to [our previously announced] principles” for a due process vagueness attack. Such a challenge cannot be “merged” with the First Amendment issues, and cannot be based on hypothetical facts when the plaintiff “engages in some conduct that is clearly proscribed.” “That rule makes no exception for conduct in the form of speech.” We think that as clarified by Congress’s amendments, the statute “provides a person of ordinary intelligence fair notice of what is prohibited.” At bottom, plaintiffs simply disagree with application of the statute against their proposed training and advocacy activities – but those activities are plainly within the compass of the statute. The government concedes that mere membership in an FTO is not prohibited. [Ed. Note: why this is true is unanalyzed by the majority as well as the dissent – presumably the government had to make this concession to avoid running afoul of the Communist Party membership cases of the 1950s.] And “independent advocacy” is not proscribed by the statute; providing service or personnel is prohibited only if the person or service is “under th[e FTO’s] direction or control,” which includes “in coordination with” the FTO. Hypothetical line-drawing difficulties under these definitions are simply not before the Court. They involve “sheer speculation” and “must await a concrete fact situation” (Zemel v. Rusk, 381 U.S. 1 (1965).) The statute is not impermissibly vague on these facts.

The statute also does not violate the First Amendment. It “does not prohibit independent advocacy or expression of any kind.” It does not bar association since it does not prohibit membership. And while it may reach some speech, it is “carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” We agree that a “more demanding standard” of review than O’Brien (1968) applies to this statute, because the statute clearly reaches some speech. But it survives that review.

“Everyone agrees” that the objective of combating terrorism is a compelling interest. But we disagree with the plaintiffs that this statute is not “necessary” to further that interest, and we disagree with the dissent that more “specific” facts are necessary to sustain it. In this area, the judiciary should give the other branches deference, without abandoning our independent role. Congress and the Executive have made findings that “any contribution” to an FTO ultimately “facilitates” the organization and its objectives. Even teaching peaceful negotiation and petitioning concepts could be used, by an FTO to further its unlawful objectives. Congress was “justified” in rejecting the view that “ostensibly peaceful aid would have no harmful effects.” It can help “legitimate” a terrorist organization, and also interfere with the United States’ diplomatic and foreign affairs efforts. “Common sense” as well as the evidence supports this view (footnote 6). Congress has indicated that it is “conscious of its own responsibility” to consider constitutional concerns. It has drawn the statute narrowly, and allowed FTOs to judicially challenge their designation. It has excluded the provision of medicine and religious materials from the statute. But “the particular speech plaintiffs propose to undertake” is “wholly foreseeable” as potentially useful to the FTOs, and “the dissent fails to address the real dangers at stake.”

Now, “all this is not to say that any future applications” of the statute “will survive First Amendment scrutiny.” But on the factual allegations presented, the statute does not violate the First Amendment. Finally, Congress may rationally distinguish aid to terrorist organizations from aid to other types of groups. The Constitution proclaims that government is established to “provide for the common defence.” This statute pursues that objective consistently with the Constitution.

Breyer dissenting (with Ginsburg and Sotomayor): I agree that the statute is not unconstitutionally vague. But I don’t think the government has borne the heavy burden required to justify criminalizing speech activities. There is no hard evidence that peaceful activities of the sort proposed here actually benefit an FTO, as opposed to leading toward peaceful resolutions. I would interpret the statute (based on the word “material”) to apply “only when the defendant knows or intends that [his] activities will assist the organization’s terrorist activities.” Otherwise, “the risk that those who are taught will put otherwise innocent speech or knowledge to bad use is omnipresent,” and “there is no natural stopping point” to the Court’s “legitimizing” argument. Certainly even completely “independent” advocacy can further the goals of an FTO and help “legitimize” it. Meanwhile, there is no real showing here that the peaceful teachings and advocacy that plaintiffs propose will actually aid the FTOs in their terrorist goals – and the fact that the law treads upon political speech should heighten our need for hard evidence. Thus in the 1950s, we struck down statutes that criminalized Communist party membership by those “intending to further only its peaceful activities.” [Ed. Note: Of course, here, the government has conceded that membership is allowed under 2339B – although why that is not “material support” is unexplained, other than by the need to distinguish the Communist Party cases.] “What is one to say about … arguments that would deny First Amendment protection to the peaceful teaching of international human rights law”? The government and the majority “stretch [their arguments] beyond constitutional limits” – indeed, even the government has never offered the hypothetical “legitimizing” arguments that the majority adopts. Today’s ruling “gravely and without adequate justification injure[s] interests of the kind the First Amendment protects.” I would remand the case for further proceedings under my proposed interpretation. Because the majority also changes the analysis used by the lower courts, it too should remand rather than simply upholding this statute. “The Court has failed to examine the Government’s justifications with sufficient care” and “ultimately deprives the individuals before us of the protections that the First Amendment demands.”

June 8, 2010

Findlaw Case Summaries: Constitutional Law

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May 31 - June 4, 2010.

U.S. Supreme Court, June 01, 2010
Levin v. Commerce Energy, Inc., No. 09–223
In an action by independent natural gas marketers (IMs) who offered to sell natural gas to Ohio consumers against the Ohio Tax Commissioner (Commissioner), alleging discriminatory taxation of IMs and their patrons in violation of the Commerce and Equal Protection Clauses, the Sixth Circuit's reversal of the district court's dismissal of the action is reversed where, under the comity doctrine, a taxpayer’s complaint of allegedly discriminatory state taxation, even when framed as a request to increase a competitor’s tax burden, must proceed originally in state court.

U.S. 1st Circuit Court of Appeals, June 03, 2010
Chaparro v. Ruiz-Hernandez, No. 08-1989
In a 42 U.S.C. section 1983 suit brought by a group of twenty-two contract employees against a Puerto Rican municipality and its officers, a grant of plaintiffs' motion for summary judgment is affirmed in part, vacated in part and remanded where: 1) plaintiffs had a reasonable expectation of continued employment; 2) a one-year term of employment with Puerto Rican government bodies is generally considered a protected property interest for procedural due process purposes; and 3) defendants' claim that plaintiffs were not deprived of protected property interests without due process of law because the process Puerto Rico provided was adequate is rejected.

U.S. 2nd Circuit Court of Appeals, June 04, 2010
Harrington v. Cty. of Suffolk, No. 09-3911
In an action pursuant to 42 U.S.C. section 1983 asserting that defendants deprived plaintiffs of a property interest protected by the Due Process Clause by conducting an inadequate investigation into their son's fatal traffic accident, the dismissal of the action is affirmed where plaintiffs had no property interest in an adequate police investigation.

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May 24, 2010

Findlaw Case Summaries: Constitutional Law

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May 17-21, 2010

U.S. 1st Circuit Court of Appeals, May 17, 2010
Coggeshall v. Massachusetts Bd. of Registration of Psychologists, No. 09-1111
In plaintiffs' 42 U.S.C. section 1983 suit against the Massachusetts Board of Registration of Psychologists, claiming multiple challenges to the constitutionality of the Board's actions and the regulations involving plaintiff-psychologist's evaluation of a seven-year-old boy, district court's dismissal of the action is affirmed where: 1) the members of the Board, individually, are shielded from the damages claims by reason of quasi-judicial immunity; 2) district court's dismissal on abstention ground is affirmed as this case is a paradigm for Younger abstention; and 3) third party lacks standing to pursue his nonmonetary claims as he suffered no legally cognizable injury in fact as a result of the Board's actions.

U.S. 1st Circuit Court of Appeals, May 20, 2010
Gorelik v. Costin , No. 09-1192
In plaintiff's 42 U.S.C. section 1983 suit against the president of the New Hampshire State Board of Medicine, arising from the Board's mischaracterization of plaintiff's temporary license as disciplinary action rather than as "Board action" and posted on the Board's website and in newsletters, judgment of the district court is affirmed where: 1) the issuance of plaintiff's temporary license and the posting of the newsletter labeling it a "disciplinary action" occurred eleven years before filing of the complaint, which is well outside the limitations period; and 2) plaintiff has failed to identify any retaliatory decision or action by the Board in response to her attempts to avail herself of administrative remedies.

U.S. 2nd Circuit Court of Appeals, May 18, 2010
Adams v. Zelotes, No. 07-1853
In an action challenging the constitutionality of a Bankruptcy Code provision, 11 U.S.C. section 526(a)(4), alleging that the provision's prohibition on debt relief agencies advising clients to incur additional debt in contemplation of bankruptcy violated plaintiff's First Amendment rights, an injunction in favor of plaintiff is reversed where the Supreme Court's decision in Milavetz directly foreclosed plaintiff's as-applied challenge by narrowly construing the Bankruptcy Abuse Prevention and Consumer Protection Act to avoid his First Amendment complaint.

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May 17, 2010

U.S. Supreme Court Case Update: U.S. v. Comstock

A Service from the ABA Criminal Justice Section,

United States v. Comstock (No. 08-1224)

United States Supreme Court Decision: May 17, 2010

In United States v. Comstock (08-1224), the Court reversed and remanded the lower court’s decision ruling that federal officials can indefinitely hold inmates considered “sexually dangerous” after their prison terms are complete. Today’s Supreme Court opinion upholds the law passed by Congress allowing civil commitment of a federal prisoner who is a sex offender to continue beyond the date the inmate otherwise would be released.

The Adam Walsh Child protection and Safety Act, signed into law by President George W. Bush in 2006, authorized, in 18 U.S.C. § 4248, the civil commitment of “sexually dangerous” federal inmates already held in custody. This act provides authority to the government to have individuals either completing federal prison sentences or incompetent to stand trial, to remain in federal custody indefinitely if they are found through clear and convincing evidence to be a person who is legally “sexually dangerous.”

The Adam Walsh Child Protection and Safety Act was challenged by four men, who served prison terms for possession of child pornography or sexual abuse of a minor. When these four men were completing terms in federal prison, the federal government initiated civil-commitment proceedings stating they would be a risk of sexually violent conduct or child molestation if they were released. The four men moved to dismiss the proceedings on constitutional grounds that 18 U.S.C. § 4248 exceeded Congress’ powers under the Commerce Clause, the “clear and convincing requirement” did not meet due process standards, and that the section violated the Fifth, Sixth and Eighth Amendments of the U.S. Constitution. The federal district court ruled in their favor and granted a motion to dismiss.

The issue before the Supreme Court was narrowed to whether congress had the constitutional authority to enact 18 U.S.C. 4248 under the Necessary and Proper Clause and whether congress could authorize the civil commitment of a “sexually dangerous” person who is already in the custody of the Bureau of Prisons (but who are coming to the end of their federal prison sentences) or who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial. The United States argued that this potential civil commitment is a “necessary and proper” exercise of federal power. Justice Stephen Breyer, writing the majority opinion stated, "[T]he statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others." Thus the Supreme Court concluded that the United States Constitution does provide legislative power for Congress to enact 18 U.S.C. § 4248.


A 7-2 decision with an opinion written by Justice Breyer. Justice Thomas dissented, Justice Scalia joined in part on Justice Thomas’ dissenting opinion. Justice Kennedy concurred in the judgment only, joined by Justice Alito.

May 10, 2010

Findlaw Caselaw Summaries: Constitutional Law

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May 3-7, 2010

U.S. 3rd Circuit Court of Appeals, May 04, 2010
Estate of Oliva v. Dep't of Law & Pub. Safety , No. 09-2082
In an action by the estate of a now deceased state trooper who committed suicide, claiming harassment by numerous individuals connected with the State Police for his objections to what he believed was a State Police practice to profile motorists when making traffic stops, a grant of summary judgment to defendants and denial of plaintiff's leave to amend his complaint is affirmed as plaintiff is not entitled to relief as he has failed to establish that his section 1981, 1985(3) and other various statutory causes of action can be sustained according to their requirements or establish that the district court abused its discretion in denying him leave to amend his complaint. ...

U.S. 3rd Circuit Court of Appeals, May 06, 2010
Dique v. New Jersey State Police, No. 05-1159
In plaintiff's Fourteenth Amendment claim for selective-enforcement, arising from his 1990 traffic stop that led to his conviction for drug related offenses which was vacated in 2002 on the ground that colorable issues of racial profiling existed at the time of the arrest, district court's dismissal of the claim as time barred is affirmed where: 1) under Wallace v. Kato, 549 U.S. 384 (2007), in a case of selective-enforcement, it will no longer be required that the complainant have been convicted and have had that conviction reversed, expunged or invalidated, and the statute of limitations begins to run at the time the claimant becomes detained pursuant to legal process; and 2) plaintiff asserted his selective-enforcement claim over two years after July 2001, when his attorney became aware of the extensive documents describing the State's pervasive selective enforcement practices, that plaintiff discovered, or by exercise of reasonable diligence should have discovered that h! e might have a basis for an actionable claim. .

U.S. 6th Circuit Court of Appeals, May 06, 2010
Flanory v. Bonn , No. 09-1161
In a pro se prisoner's section 1983 suit against various prison officials and others claiming violation of his Eighth Amendment right, dismissal of the complaint for failure to state a claim is reversed and remanded as plaintiff has made allegations which satisfy the objective and subjective components required for an Eighth Amendment violation as he has alleged that he was completely denied certain hygiene items and that he specifically was without toothpaste for a period of 337 days, and he also alleged that defendants were aware that he was without toothpaste and were deliberately indifferent to his hygiene needs.

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April 22, 2010

Findlaw Caselaw Summaries: Constitutional Law

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April 12 -16, 2010:

U.S. 1st Circuit Court of Appeals, April 15, 2010
Foley v. Kiely , No. 09-1250
In plaintiff's 42 U.S.C. section 1983 claim against Massachusetts State Troopers and a police sergeant, claiming the troopers unconstitutionally seized and arrested him, district court's grant of summary judgment in favor of defendants is affirmed, as the troopers did not violate plaintiff's constitutional rights in detaining and subsequently arresting him.

U.S. 6th Circuit Court of Appeals, April 15, 2010
American Booksellers Found. for Free Expression v. Strickland, No. 07-4375
In plaintiffs' suit claiming that Ohio Revised Code section 2907.31(D)(1), criminalizing sending juveniles material that is harmful to them, is unconstitutional under the First Amendment and Commerce Clause, district court's judgment for the plaintiffs and its order permanently enjoining enforcement of the statute as applied to internet communications on the basis that it is overbroad, is reversed and vacated, as the statute does not violate the First Amendment or the Commerce Clause because the scope of the statute is limited to personally directed electronic communications, as currently available or developed in the future. .

U.S. 7th Circuit Court of Appeals, April 16, 2010
Evans v. Poskon , No. 09-3140
In a prisoner's 42 U.S.C. section 1983 suit, claiming that his fourth amendment rights were violated when the officers used excessive force during and after his arrest, district court's grant of summary judgment in favor defendants on the ground that Heck v. Humphrey, 512 U.S. 477 (1994) bars defendant's claim because his assertion that he did not oppose being taken into custody contradicts his conviction for resisting arrest is reversed as, Wallace v. Kato, 549 U.S. 384 (2007) holds that a claim that accrues before a criminal conviction may and usually must be filed without regard to the conviction's validity, and that a claim asserting that a search or seizure violated the fourth amendment accrues immediately. Therefore, his claim that he did not resist being taken into custody is incompatible with his conviction and any proceedings based on this contention must be stayed or dismissed, but defendant's claims that the police used excessive force to effect custody and that t! he police beat him severely even after reducing him to custody are consistent with a conviction for resisting arrest and may thus proceed.

U.S. 9th Circuit Court of Appeals, April 13, 2010
Black Star Farms LLC v. Oliver, No. 08-15738
In an action by a Michigan winery claiming that certain provisions of Arizona's statutory scheme regulating the direct shipment of wine from wineries — whether located in-state or out-of-state — to Arizona consumers violated the dormant Commerce Clause, summary judgment for defendant is affirmed where Arizona's statutory exceptions to its three-tier distribution system, which treated similarly situated in-state and out-of-state wineries the same and imposed no new impermissible burdens on out-of-state wineries, did not have the practical effect of favoring in-state economic interests over out-of-state interests.