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U.S. Supreme Court, March 08, 2010 Milavetz, Gallop & Milavetz, P.A. v. US, No. 08–1119 In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act’s (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit’s order rejecting the district court’s conclusion that attorneys are not “debt relief agencies” under BAPCPA, upholding application of BAPCPA’s disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528’s requirements were reasonably related to the government’s interest in preventing consumer deception. However, the court of appeals’ order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advis! ing a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose. .
U.S. 1st Circuit Court of Appeals, March 10, 2010 Foley v. Town of Randolph, No. 09-1558 In plaintiff’s 42 U.S.C. section 1983 suit claiming that he was wrongfully retaliated against in violation of his First Amendment rights when he was suspended, as a Chief of the Fire Department, for fifteen days based on public statements he made at the scene of a fatal fire, district court’s grant of summary judgment in favor of the defendants is affirmed as, under the circumstances of the press conference in the case, there could be no doubt that plaintiff was speaking in his official capacity and not as a citizen when he addressed budgetary and staffing shortfalls the department.
U.S. 1st Circuit Court of Appeals, March 11, 2010 Peralta v. US, No. 08-1765 In proceedings involving defendant’s pro se motion under 28 U.S.C. section 2255 to vacate his sentence on grounds of ineffective assistance of counsel in connection with his guilty plea, sentencing, and direct appeal, the district court’s denial of the motion is affirmed where: 1) the district court did not commit err in finding that defendant was not denied constitutionally effective assistance of counsel; and 2) defendant’s other issues outside the certificate of appealability are waived
U.S. 2nd Circuit Court of Appeals, March 09, 2010 Redd v. Wright, No. 06-4315 In a 42 U.S.C. section 1983 action arising out of plaintiff inmate’s confinement in tuberculosis hold following his refusal to submit to tuberculosis testing, summary judgment for defendants is affirmed where 1) prior precedent did not “clearly foreshadow” a holding that the testing policy, as applied in this case, violated plaintiff’s free exercise rights; 2) it could not reasonably be said that the defendants acted in violation of clearly established Eighth Amendment law by implementing the policy; and 3) it was not clearly established that plaintiff was entitled to some kind of notice that religious objectors could be exempt from the policy.
U.S. 2nd Circuit Court of Appeals, March 10, 2010 TJS of N.Y., Inc. v. Smithtown, No. 08-2789 In an action seeking an injunction and declaratory judgment to the effect that defendant-town’s zoning ordinance did not give plaintiff adequate alternative sites on which to locate its adult entertainment business, a denial of an injunction is vacated where the First Amendment required courts to consider the adequacy of alternative sites available when the ordinance is challenged, not at the time the ordinance is passed.
U.S. 2nd Circuit Court of Appeals, March 11, 2010 Huth v. Haslun, No. 08-2203 In an action claiming that defendants, who were employees of the New York State Thruway Authority, violated plaintiff’s rights under the First Amendment by initiating disciplinary proceedings against her resulting in her demotion, a denial of summary judgment for defendants based on qualified immunity is reversed where: 1) the conduct that resulted in plaintiff’s demotion did not qualify as speech protected from retaliation by the First Amendment; and 2) plaintiff could not assert a claim on behalf of her coworker because that coworker suffered no infringement of her own constitutional rights.
U.S. 2nd Circuit Court of Appeals, March 12, 2010 Alexander v. Cahill, No. 07-3677 In a First Amendment challenge to attorney advertising rules issued by the New York Appellate Division barring, inter alia, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results, and establishing a thirty-day moratorium for targeted solicitation following a specific incident, including targeted ads on television or in other media, summary judgment order invalidating most of the content-based restrictions and upholding the thirty-day moratorium is affirmed in part where the content-based restrictions in the disputed provisions regulated commercial speech protected by the First Amendment. However, the order is reversed in part where: 1) the prohibition on advertising mentioning fictitious firms was valid because it targeted potentially misleading advertising; and 2) as to the moratorium, there was a sub! stantial state interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers.
U.S. 4th Circuit Court of Appeals, March 12, 2010 News & Observer Publ’g. Co. v. Raleigh-Durham Airport Auth., No. 09-1010 In newspaper publishers’ First Amendment challenge to a public airport’s total ban on newspaper racks inside its terminals, grant of summary judgment in favor of plaintiffs is affirmed as the government interests asserted to justify the total ban do not counterbalance its significant restriction on protected expression.
U.S. 7th Circuit Court of Appeals, March 12, 2010 Stockwell v. City of Harvey, No. 09-2355 In white firefighters’ suit against a city claiming that it failed to promote them within its fire department because of their race, summary judgment in favor of the city is affirmed where: 1) the city, through its fire chief, has set forth legitimate, nondiscriminatory reasons for declining to promote the plaintiffs to deputy and/or assistant chief; and 2) plaintiffs failed to produce sufficient evidence to create a genuine issue of fact regarding whether the reasons were pretextual.
U.S. 8th Circuit Court of Appeals, March 10, 2010 Clos v. Corrections Corp. of Am., No. 09-1816 In an action by a prisoner claiming that he suffered disability discrimination related to his severe hearing loss, plaintiff’s appeal from partial summary judgment for defendants is dismissed where the district court’s conclusory order provided no basis for a finding that plaintiff would face hardship or injustice by waiting to appeal until his remaining claim against defendants was fully resolved.
U.S. 8th Circuit Court of Appeals, March 12, 2010 Holschen v. Int’l. Union, No. 09-1122 In an action by a former union painter against the union alleging several violations of the Labor Management Reporting and Disclosure Act (LMRDA), as well as a state law claim for intentional interference with a valid business expectancy, judgment for defendant is affirmed where: 1) this was not a situation where the circumstances themselves presented a significant danger of bias such that plaintiff was excused from presenting at least some evidence of actual bias involving one or more trial board members in order to survive summary judgment; 2) evidence of ad hoc retaliation by an individual union member did not state a cause of action for a free speech violation under the LMRDA; and 3) there was no evidence the union itself formally disciplined plaintiff in retaliation for his exercise of free speech rights.
U.S. 9th Circuit Court of Appeals, March 09, 2010 Espinosa v. City & County of San Francisco, No. 08-16853 In a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers, denial of summary judgment based on qualified immunity is affirmed where: 1) defendants failed to show as a matter of law that plaintiff’s decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.
U.S. 9th Circuit Court of Appeals, March 11, 2010 Newdow v. Rio Linda Union Sch. Dist., No. 05-17257 In an Establishment Clause action by the atheist parent of a student challenging the recitation of the pledge of allegiance by other students in the school at issue, a judgment in favor of plaintiffs is reversed and an injunction vacated where the Pledge of Allegiance does not violate the Establishment Clause because Congress’s ostensible and predominant purpose was to inspire patriotism and the context of the Pledge –its wording as a whole, the preamble to the statute, and this nation’s history — demonstrated that it was a predominantly patriotic exercise, despite its use of the words “under God.” Thus, California’s statute requiring school districts to begin the school day with an “appropriate patriotic exercise” does not violate the Establishment Clause even though it permits teachers to lead students in recitation of the Pledge.
U.S. 9th Circuit Court of Appeals, March 11, 2010 Newdow v. US Congress, No. 06-16344 In an action claiming that the national motto of the United States, “In God We Trust,” and its inscription on the Nation’s coins and currency, violated the Establishment Clause or the Religious Freedom Restoration Act of 1993, dismissal of the complaint is affirmed where the Ninth Circuit’s prior decision in Aronow v. U.S., 432 F.2d 242 (9th Cir. 1970), foreclosed both claims.
U.S. 9th Circuit Court of Appeals, March 11, 2010 Coyote Publishing, Inc. v. Miller, No. 07-16633 In a facial First Amendment challenge to restrictions on advertising by legal brothels, summary judgment for plaintiffs is reversed where the advertising restrictions targeted pure commercial speech, and there were strong reasons why the sale of sexual services, in particular, ought to be treated differently than other advertising bans on “vice” activities.
U.S. 9th Circuit Court of Appeals, March 12, 2010 Morton v. Hall, No. 07-55574 In a 42 U.S.C. section 1983 action alleging that prison officials’ deliberate indifference contributed to a violent assault on plaintiff by inmates, dismissal of the complaint for failure to exhaust administrative remedies is affirmed where the grievance filed by plaintiff was insufficient to put prison officials on notice of plaintiff’s complaint that prison-staff conduct contributed to his assault.
U.S. 10th Circuit Court of Appeals, March 09, 2010 Zia Trust Co. v. Montoya, No. 09-2006 In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force