Articles Posted in 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 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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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.

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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 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 Continue reading

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.

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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 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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