December-28, 2009 – January 1, 2010
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U.S. 2nd Circuit Court of Appeals, December 30, 2009 Wilner v. Nat’l. Sec. Agency, No. 08-4726 In a Freedom of Information Act (FOIA) action filed by attorneys for Guantanamo Bay detainees seeking information regarding whether the government intercepted plaintiffs’ communications relating to the representation of their detainee clients, an order upholding the National Security Agency’s (NSA) and Department of Justice’s responses neither confirming nor denying the existence of such records is affirmed where: 1) a Glomar response was available to agencies as a valid response to FOIA requests; 2) an agency may issue a Glomar response to FOIA requests seeking information obtained pursuant to a publicly acknowledged intelligence program, at least when the existence of such information has not already been publicly disclosed; 3) the NSA properly invoked the Glomar doctrine in response to plaintiffs’ request for information pursuant to FOIA Exemption 3; 4) the government’s affidavits sufficiently alleged the necessity of a Glomar response in this case, making it unnecessary ! for the court to review or to require the district court to review ex parte and in camera any classified affidavits that the NSA might proffer in support of its Glomar response; and 5) there was no evidence in the record that the NSA invoked Glomar for the purpose of concealing activities that violated the Constitution or were otherwise illegal.
U.S. 4th Circuit Court of Appeals, December 28, 2009 Smith v. Smith, No. 08-7139 In an inmate’s 42 U.S.C. section 1983 suit against a prison nurse claiming deliberate indifference to his serious medical needs, district court’s judgment in favor of the defendant is reversed and remanded where: 1) the inmate made out a claim for a deliberate indifference and the district court erred in finding that he failed to state a claim under the Eighth Amendment; and 2) because the district court premised both the grant of the motion to dismiss and qualified immunity on its finding that plaintiff failed to allege deliberate indifference in his complaint, the immunity analysis was prematurely concluded on the erroneous basis that plaintiff did not plead facts sufficient to indicate defendant had deliberate indifference to his medical need.
U.S. 6th Circuit Court of Appeals, December 30, 2009 Hamblen v. US, No. 09-5025 District court’s denial of a 28 U.S.C. section 2255 motion to vacate a sentence for possession of machine guns and unregistered firearms by defendant, a volunteer with the Tennessee State Guard who had built nine machine guns in response to the events of September 11, is affirmed as the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns.
U.S. 7th Circuit Court of Appeals, December 29, 2009 US v. Neighbors, No. 09-1113 Sentence and conviction of defendants for conspiracy to possess and distribute crack cocaine is affirmed where: 1) the district court did not err in denying defendants’ motion for a mistrial because, although the venire lacked any African-Americans, defendants did not show that systematic exclusion of African-Americans caused this void; 2) the district court did not abuse its discretion in allowing a detective to identify defendants’ voices on the wiretap tapes; 3) the district court did not abuse its discretion when it allowed the jury to take transcript books back to the deliberation room; 4) the district court did not abuse its discretion in excluding letters written by a witness, even under Rule 613; 5) there was no error in denying defendants’ motion for directed verdict based on the variance between the verdict and the indictment; and 6) there was no error in sentencing one of the defendants within the highest possible point in the Guidelines range.
U.S. 7th Circuit Court of Appeals, December 30, 2009 US v. Are, No. 07-3246 Conviction of defendants, known as the “Four Corner Hustlers” gang on the south side of Chicago, for drug conspiracy involving variety of illegal drugs and guns is affirmed as a review of the record leads to the conclusion that, by and large, the district court properly handled the case.
U.S. 7th Circuit Court of Appeals, December 30, 2009 World Outreach Conference Center v. City of Chicago, No. 08-4167 In a consolidated case involving the rights of religious organizations to avoid having to comply with local land-use regulations, dismissal of the suits is affirmed in part and reversed in part where: 1) the district court erred in dismissing World Outreach’s substantial-burden claim under the Religious Land Use and Institutionalized Persons Act, as the burden imposed on a small religious organization catering to the poor was substantial and there was no possible justification for it; 2) a deliberate, irrational discrimination, even if it is against one person rather than a group, is actionable under the equal protection clause, and as this claim is supported by the allegations of Outreach’s complaint, it should not have been dismissed; 3) Outreach’s claim for damages for violation of the Chicago Zoning Ordinance is barred by the state’s tort immunity act and therefore was properly dismissed; 4) dismissal of Trinity Evangelical Lutheran Church’s claim is affirmed as the burd! en imposed on Trinity, a substantial religious organization, by the landmark designation that disables it from demolishing the apartment house is modest as the building has not been rendered uninhabitable by the designation.
U.S. 7th Circuit Court of Appeals, December 31, 2009 Etherly v. Schwartz, No. 09-3535 In habeas proceedings of a defendant convicted of first degree murder when he was fifteen years old and sentenced to a forty-year term of imprisonment, state’s motion for a stay of release is granted as it is not likely that district court’s grant of habeas relief will be affirmed as traditional factors for a stay overcome the petitioner’s presumption in favor of release.
U.S. 8th Circuit Court of Appeals, December 29, 2009 US v. McCloud, No. 09-1520 Defendant’s child pornography conviction is affirmed where: 1) defendant’s own testimony supplied the allegedly “missing” element of whether he actually photographed one victim; 2) the district court’s preclusion of a reasonable-mistake-of-age defense did not violate defendant’s right to due process; and 3) sufficient evidence existed from which a jury could find that defendant produced child pornography with materials that had traveled in interstate commerce.
U.S. 9th Circuit Court of Appeals, December 29, 2009 Bryan v. McPherson, No. 08-55622 In a 42 U.S.C. section 1983 action based on defendant-officer’s use of a taser on plaintiff at a traffic stop, denial of summary judgment based on qualified immunity is affirmed where, viewing the circumstances in the light most favorable to plaintiff, defendant’s use of the taser was unconstitutionally excessive and a violation of plaintiff’s clearly established rights.
California Appellate Districts, December 28, 2009 People v. Moret, No. A123591 In a prosecution for possession of a concealed firearm, trial court’s imposition of several conditions on defendant’s probation, specifically a condition requiring non-use of marijuana and the surrender of his medical marijuana card, is affirmed where: 1) the combination of provisions of Health and Safety Code section 11357 and 11362.795 and cited authorities make it clear that there was nothing in the slightest unlawful or unconstitutional about the probation conditions imposed on, and explicitly agreed to, by defendant; 2) court did not abuse its discretion when it gave the defendant the choice to accept among several conditions, including drug testing and jail time; and 3) there were no improper or unlawful choice being forced on defendant. ..
California Appellate Districts, December 29, 2009 Reddell v. California Coastal Comm’n, No. B206428 In an action arising following denial of plaintiff’s application for a coastal development permit for the construction of residential and commercial buildings on six lots on the bluffs above a city, dismissal of plaintiff’s petition for a writ of administrative and ordinary mandate and a complaint for damages and equitable relief against the California Coastal Commission is affirmed where: 1) the Commission’s interpretation of the city’s local coastal plan and Coastal Act Provisions is reasonable, and substantial evidence supports its decision, visitor-serving priorities; 2) the Commission had no duty to approve a revised project; 3) trial court did not err in dismissing the complaint in concluding that the Commission conducted a fair hearing, did not proceed in excess of its jurisdiction and did not abuse its discretion in disposing of plaintiff’s claims for violation of due process and equal protection; and 4) plaintiff’s claim for damages for a regulatory taking of proper! ty is not ripe