Findlaw Case Law Summaries: Constitutional Law. June 14 – 18, 2010.

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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
U.S. 1st Circuit Court of Appeals, June 17, 2010 Martinez v. Cui, No. 09-1471 In plaintiff’s suit against a first-year medical resident claiming that she was sexually assaulted during an examination, judgment in favor of the defendant is affirmed where: 1) the district court’s evidentiary rulings were not error; and 2) the jury was correctly instructed on the shocks-the-conscious element as this standard applies to claims that an executive official’s sexual assault violated the substantive due process clause.

U.S. 1st Circuit Court of Appeals, June 17, 2010 US v. Persichilli, No. 09-1799 A conviction for knowingly possessing a Social Security card with intent to alter it and aggravated identity theft is affirmed where: 1) the evidence was sufficient to demonstrate an intent to alter the card; 2) the court of appeals rejects a claim that defendant did not have either of the two statutory purposes that the government said supported his conviction on the alteration count; 3) contrary to defendant’s claim, the alternative purpose charged in this case under section 408 — “for any other purpose” — is not unconstitutionally vague; and 4) defendant’s conviction for intent to alter a Social Security card could serve as a predicate offense under the aggravated identity theft statute.

U.S. 1st Circuit Court of Appeals, June 18, 2010 US v. Jackson, No. 09-1202 Denial of a motion to suppress in a prosecution for being a felon in possession of a firearm is affirmed as the district court’s judgment was neither unreasonable nor clear error as, under the applicable test, the lack of any pre-planned evasion of Miranda defeats defendant’s claim, and under the plurality decision’s fact sensitive approach, the most egregious elements of Seibert are absent.

U.S. 1st Circuit Court of Appeals, June 18, 2010 Elliot v. Carcieri, No. 09-1759 In a class action lawsuit on behalf of foster care children who are under the legal custody of Rhode Island’s Department of Children, Youth and Families (DCYF), claiming that systematic deficiencies in the state’s child welfare and foster care systems deprived the plaintiffs of their rights under the U.S. Constitution and several federal statutes, district court’s judgment dismissing the complaint on the ground that the Next Friends lacked capacity to sue on behalf of plaintiffs is reversed where: 1) the district court erred in finding that the state appointed guardians ad litem or CASA advocates precluded plaintiffs from filing suit by a Next Friend; 2) under the circumstances of the case, Rule 17(c) allows federal courts discretion to appoint a Next Friend to represent the children in federal court; and 3) the proposed Next Friends are suited to represent the children in this case.

U.S. 2nd Circuit Court of Appeals, June 15, 2010 Weinstein v. Islamic Repub. of Iran, No. 09-3034 In proceedings involving efforts to collect on a default judgment against Iran and in favor of the family of an individual severely injured in a 1996 suicide bombing in Jerusalem, an order granting plaintiff’s motion for appointment of receiver to attach defendant’s property in satisfaction of the prior judgment is affirmed where: 1) section 201(a) of the Terrorism Risk Insurance Act provided courts with subject matter jurisdiction over post-judgment execution and attachment proceedings against property held in the hands of an instrumentality of the judgment-debtor, even if the instrumentality was not itself named in the judgment; 2) Congress, by virtue of providing subject matter jurisdiction over execution and attachment proceedings based in part on the Office of Foreign Asset Control’s determination of what assets were blocked, did not unconstitutionally delegate its authority to the Executive Branch; and 3) there was no conflict between the TRIA and the Treaty of Amity, ! Economic Relations, and Consular Rights.

U.S. 2nd Circuit Court of Appeals, June 18, 2010 US v. 777 Greene Ave., No. 08-5428 In a civil forfeiture proceeding, the motion to withdraw of defendant’s counsel is denied where such a motion will not be granted unless counsel satisfies the requirements established under Anders v. California, 386 U.S. 738 (1976), and its progeny. With regard to motions to withdraw filed by appellate counsel appointed pursuant to 18 U.S.C. section 983(b)(2)(A), the procedure established under Anders and its progeny is best suited to protect the right to counsel to which indigent litigants are entitled.

U.S. 3rd Circuit Court of Appeals, June 16, 2010 US v. Marcavage , No. 09-3573 Conviction of defendant for violating the terms of a permit and interfering with agency function, arising from his refusal to move his anti-abortion demonstration from the sidewalk in front of Liberty Bell to a nearby location, is vacated where: 1) the sidewalk at issue, as a thoroughfare sidewalk, seamlessly connected to public sidewalks at either end and intended for general public use, is a traditional public forum; 2) restrictions imposed on defendant were content-based as the park rangers’ actions were motivated by the content of defendant’s speech; and 3) defendant’s First Amendment right to free speech was impermissibly infringed because government’s exclusion of defendant from the sidewalk cannot withstand strict scrutiny as the exclusion was neither narrowly tailored to serve the government’s interests nor the least restrictive means of doing so.

U.S. 4th Circuit Court of Appeals, June 16, 2010 Norfolk S. Ry. Co. v. City of Alexandria, No. 09-1566 In an action for a declaratory judgment against a city, arising from an ordinance to regulate ethanol transloading at plaintiff’s facility, judgment of the district court is affirmed in part, dismissed in part, and vacated where: 1) the ordinance, as applied to plaintiff through the permit, is preempted by the Interstate Commerce Commission Termination Act (ICCTA); 2) district court’s judgment with respect to the Hazardous Materials Transportation Act (HMTA) and Federal Rail Safety Act (FRSA) is vacated; and 3) because the disposition of the ICCTA claim renders other preemption claims moot, the HMTA claim is dismissed.

U.S. 6th Circuit Court of Appeals, June 18, 2010 Vereecke v. Huron Valley Sch. Dist., No. 08-2051 In a high school English teacher’s suit against a school district and individuals for First Amendment retaliation, claiming that certain disciplinary actions were taken against him for initiating a lawsuit against another teacher on behalf of his daughter for harassment, summary judgment for defendants is affirmed where: 1) plaintiff has not presented evidence sufficient to raise a genuine issue of material fact in support of causation element of his section 1983 claim against the individual defendants; and 2) because the individual defendants did not violate plaintiff’s constitutional rights under the First Amendment, he cannot rely on their conduct to establish a claim of municipal liability.

U.S. 7th Circuit Court of Appeals, June 15, 2010 Siefert v. Alexander, No. 09-1713 In a judge’s action for declaratory and injunctive relief against members of the Wisconsin Judicial Commission, challenging under the First Amendment certain judicial ethical rules, summary judgment for plaintiff is affirmed in part where the partisan affiliation ban at issue impermissibly acted to prohibit plaintiff’s speech on both his political views and his qualifications for office. However, the judgment is reversed in part where, unlike restrictions designed, for example, to regulate federal employees’ political activity, restrictions on judicial speech may, in some circumstances, be required by the Due Process Clause, and the solicitation ban was drawn closely enough to the state’s interest in preserving impartiality and preventing corruption to be constitutional.

U.S. 7th Circuit Court of Appeals, June 16, 2010 Judge v. Quinn , No. 09-2219 In a 42 U.S.C. section 1983 suit against the governor of Illinois brought by two registered voters claiming that the governor’s failure to issue a writ of election to fill the senate seat vacated by President Obama violated their Seventh Amendment rights, district court’s denial of plaintiffs’ motion for preliminary injunction is affirmed where: 1) plaintiffs have shown a strong likelihood of success on the merits and the governor has a duty to issue a writ of election to fill President Obama’s vacancy; but 2) plaintiffs failed to demonstrate they they will suffer irreparable harm if the preliminary injunction they want does not issue.

U.S. 7th Circuit Court of Appeals, June 17, 2010 Wilson v. Gaetz, No. 09-2111 District court’s denial of defendant’s petition for habeas relief from a conviction in state court of murder while mentally ill is vacated and remanded as, given the gravity of charge against defendant and the ample evidence that he was driven to kill the victim by an insane delusion, counsel’s assistance to defendant fell below the minimum professional level required of a lawyer representing a murder defendant, and as such, defendant is entitled to an evidentiary hearing on the issue of prejudice.

U.S. 9th Circuit Court of Appeals, June 14, 2010 Blair v. Bethel Sch. Dist., No. 08-35895 In an action alleging that plaintiff’s First Amendment rights were violated when his fellow school board members voted to remove him as their vice president because of his relentless criticism of the school district’s superintendent, summary judgment for defendants is affirmed where the board’s action did not prevent plaintiff from continuing to speak out, vote his conscience, and serve his constituents as a member of the board.

U.S. 9th Circuit Court of Appeals, June 17, 2010 Guy v. City of San Diego, No. 08-56024 In plaintiff’s appeal from the district court’s denial of his motion for a new trial on damages following a jury verdict reached in his 42 U.S.C. section 1983 action alleging excessive force by police, the order is affirmed in part where substantial evidence supported the jury’s finding that plaintiff suffered only nominal damages. However, the order is reversed in part where an attorney’s fee award would serve a purpose beneficial to society by encouraging the City of San Diego to ensure that all of its police officers were well trained to avoid the use of excessive force, even when they confronted a person whose conduct had generated the need for police assistance.

U.S. 9th Circuit Court of Appeals, June 18, 2010 Bryan v. MacPherson, No. 08-55622 In an action asserting excessive force in violation of the Fourth Amendment based on an officer’s use of a taser on plaintiff, a denial of summary judgment based on qualified immunity is affirmed in part where, viewing the circumstances in the light most favorable to plaintiff, defendant’s use of the taser was unconstitutionally excessive. However, the order is reversed in part where the violation of plaintiff’s constitutional rights was not clearly established at the time.

U.S. 11th Circuit Court of Appeals, June 17, 2010 Harrell v. Fla. Bar, No. 09-11910 In a First Amendment action by a lawyer who advertised the services of his firm extensively, claiming in a broad facial challenge that nine advertising-related provisions of the Rules Regulating the Florida Bar were so vague as to violate his due process rights, summary judgment for defendants is affirmed in part where plaintiff did not give any substantial reason to believe that submitting a bare script or outline of the advertisements he proposed would constitute a hardship. However, the judgment is reversed in part where: 1) plaintiff satisfied the injury-in-fact requirement with respect to five of the challenged rules; 2) plaintiff made an adequate threshold showing of vagueness in the application of the rules to his proposed advertisements; and 3) the bar did not bear its heavy burden of showing that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

U.S. 11th Circuit Court of Appeals, June 18, 2010 Hill v. Schofield, No. 08-15444 In a capital habeas matter, the denial of petitioner’s habeas petition is reversed where Georgia’s requirement of proof of mental retardation beyond a reasonable doubt necessarily would result in the execution of the mentally retarded, and thus the Georgia Supreme Court’s decision was contrary to the clearly established rule of Atkins. .

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