Findlaw Case Summaries: Constitutional Law, November 3-7, 2008

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U.S. 1st Circuit Court of Appeals, November 05, 2008 Parker v. Gerrish, No. 081045 In a claim that defendant-police officer violated plaintiff’s constitutional rights by using his Taser during the course of arrest, verdict in favor of plaintiff and compensatory damage award of $111,000, are affirmed over claims of error that: 1) defendant was entitled to qualified immunity; and 2) the district court’s answer to a jury was responsible for an inappropriate damages award.

U.S. 7th Circuit Court of Appeals, November 07, 2008 Choose Life Illinois, Inc. v. White, No. 07-1349 In a suit by an interest group seeking on First Amendment grounds to force the state of Illinois to issue “Choose Life” specialty license plates, judgment in favor of plaintiffs is reversed where: 1) specialty license plates implicate the speech rights of private speakers, not government speech; 2) specialty plates are a nonpublic forum; and 3) the state could enforce a content-based but viewpoint-neutral ban disallowing any abortion-related message, whether pro-life or pro-choice, to be displayed on its license plates.

U.S. 8th Circuit Court of Appeals, November 03, 2008 Kloch v. Kohl, No. 07-2120 In an action brought under 42 U.S.C. section 1983 by plaintiff-physician claiming that provisions of Nebraska’s Uniform Licensing Law violated the due process clause of the Fifth and Fourteenth Amendments, an order denying defendant-Nebraska Attorney General absolute and qualified immunity is reversed where defendant was entitled to qualified immunity where: 1) despite the public availability of a “letter of concern” issued to plaintiff by the state medical board, such letter was not the equivalent of a formal censure, did not impair his medical license, and did not violate his due process rights; and 2) even had a constitutional violation been established, defendant’s decision to enforce a law of arguable constitutional validity fell within the ambit of protected official discretion.

U.S. 8th Circuit Court of Appeals, November 03, 2008 Heritage Constructors, Inc. v. City of Greenwood , No. 08-1344 In a 42 U.S.C. section 1983 suit against a city for retaliation under the First and Fourteenth Amendments arising from the city’s allegedly denying plaintiff a contract in retaliation for an earlier arbitration, summary judgment for the city is affirmed where: 1) a public contractor’s right-to-petition claim must involve a matter of public concern, just as a freedom-of-speech claim must; and 2) plaintiff did not allege that its earlier arbitration was a matter of public concern.

U.S. 8th Circuit Court of Appeals, November 04, 2008 Gill v. Maciejewski, No. 07-3451 In a 42 U.S.C. section 1983 action against defendant-officer alleging the use of excessive force, judgment pursuant to a jury verdict in favor of plaintiff is affirmed over claims of error regarding: 1) whether plaintiff met his burden of proving excessive force; 2) evidentiary rulings and jury instructions, 3) exclusion of testimony regarding plaintiff’s criminal history and statements made by his lawyer; 4) denial of defendant’s motion to offset the damage award by the amount plaintiff’s health insurer paid to cover the cost of medical treatment; and 5) an award of attorney’s fees and costs.

U.S. 9th Circuit Court of Appeals, November 05, 2008 Humphries v. County of Los Angeles, No. 05-56467 California’s maintenance of the California’s Child Abuse Central Index (CACI), which is a database of known or suspected child abusers, violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given a fair opportunity to challenge the allegations against them. .

U.S. 9th Circuit Court of Appeals, November 05, 2008 E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., No. 06-56237 In an action brought by the operator of a strip club in Los Angeles against the producer of a video game in the “Grand Theft Auto” series claiming, inter alia, that the game’s depiction of a strip club called the “Pig Pen” infringed its trademark and trade dress associated with the “Play Pen”, summary judgment for defendant-game producer is affirmed where: 1) modification of plaintiff’s trademark was not explicitly misleading and was thus protected by the First Amendment; and 2) the First Amendment defense applies equally to plaintiff’s state law claims as to its Lanham Act claim.

U.S. 10th Circuit Court of Appeals, November 04, 2008 Duffield v. Jackson, No. 08-6002 In a 42 U.S.C. section 1983 suit against several members of the medical staff at a correctional center claiming that they violated his Eighth Amendment right to be free from cruel and unusual punishment by showing deliberate indifference to his medical condition, dismissal and summary judgment rulings against plaintiff are affirmed where: 1) plaintiff failed to object to the findings and recommendations of a magistrate and thus waived appellate review of both factual and legal questions; 2) no exception to the firm waiver rule applied; and 3) there was no error in denying his motion for a thirty-day extension in which to object to the magistrate judge’s report and recommendations.

U.S. D.C. Circuit Court of Appeals, November 04, 2008 Basardh v. Gates, No. 07-1192 In a Guantanamo Bay detainee’s challenge to his detention, the government’s motion to hold in abeyance detainee’s petition for direct judicial review of the Combatant Status Review Tribunal’s determination that he was an enemy combatant is granted where: 1) in light of the decision in Boumediene v. Bush, 128 S. Ct. 2229 (2008), petitioner’s prior request for habeas corpus relief could be considered, potentially mooting the petition for direct review; and 2) there was a high probability that while restoring the availability of habeas relief, Boumediene simultaneously stripped the court of jurisdiction to review Detainee Treatment Act petitions.

U.S. D.C. Circuit Court of Appeals, November 04, 2008 Emergency Coalition to Defend Educ. Travel v. U.S. Dep’t of the Treasury, No. 07-5317 In a suit challenging the Office of Foreign Asset Control’s amendments to regulations governing educational travel to Cuba, dismissal of all claims is affirmed where: 1) at least one plaintiff had standing to challenge the regulations, and there was therefore appellate jurisdiction; but 2) the travel restrictions were content-neutral and did not violate plaintiffs-professors’ First Amendment rights; and 3) there was no violation of plaintiffs’ Fifth Amendment right to travel internationally.

U.S. Fed. Circuit Court of Appeals, November 04, 2008 Rothe Dev. Corp. v. Dep’t of Defense, No. 2008-1017 In an equal-protection challenge to the requirements of 10 U.S.C. section 2323 setting a “goal” that a certain percentage of defense contracting dollars be award to entities owned and controlled by “socially and economically disadvantaged individuals,” summary judgment for defendant is reversed where: 1) while considering the legislation at issue, Congress did not have a “strong basis in evidence” before it, upon which to conclude that defendant was a passive participant in racial discrimination in relevant markets across the country and that therefore race-conscious remedial measures were necessary; and 2) without such evidence there was no compelling government interest sufficient to withstand strict scrutiny of the statute, and the statute was therefore unconstitutional on its face.

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