Articles Posted in Constitutional Law

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.
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December-7-11, 2009.

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U.S. Supreme Court, December 08, 2009 Alvarez v. Smith, No. 08–351 In a 42 U.S.C. section 1983 case involving whether Illinois law provides a sufficiently speedy opportunity for an individual, whose car or cash police have seized without a warrant, to contest the lawfulness of the seizure, a circuit court’s ruling reversing dismissal of the action is vacated and the case is remanded where the action was moot because all of the actual property disputes between the parties had been resolved.

U.S. 6th Circuit Court of Appeals, December 08, 2009 Cooey v. Strickland, No. 09-4474 District court’s denial of defendant’s request for a stay of execution by lethal injection under Ohio’s new protocol where the state eliminated the use of a three-drug protocol and implemented a one-drug protocol is affirmed as the defendant is unable to demonstrate a likelihood of success on the merits on his Eighth Amendment claim by demonstrating that, facially or as applied to him, Ohio’s new protocol demonstrates risk of severe pain that is substantial when compared to the known and available alternatives.

U.S. 6th Circuit Court of Appeals, December 09, 2009 Holder v. Palmer, No. 07-1440 District court’s denial of defendant’s petition for a writ of habeas corpus following his conviction for sexual penetration with an uninformed partner by a person infected with AIDS is affirmed as defendant failed to demonstrate either that his trial counsel’s failure to challenge five jurors permeated the entire trial with obvious unfairness, or that the trial court committed plain error by allowing the five jurors to serve on the jury.

U.S. 6th Circuit Court of Appeals, December 10, 2009 Spears v. Ruth, No. 09-5408 In a suit brought by the family of an individual who died eleven months after being in police custody for public intoxication, denial of a summary judgment motion by an officer and the City of Cleveland is reversed and remanded where: 1) plaintiffs have not established the obvious existence of a sufficiently serious medical need; 2) there is no evidence that the officer was aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and that he drew that inference and chose to disregard the risk; 3) as such, because no constitutional violation occurred, the officer is entitled to qualified immunity; and 4) the city is entitled to summary judgment because the record as a whole does not support an inference that a reasonable trier of fact could find a causal connection between either officer’s actions or the police chief’s no-transport policy and the decedent’s injuries.
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November 30-December-4, 2009.

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U.S. 1st Circuit Court of Appeals, December 03, 2009 US v. Hersom, No. 07-2401 Defendant’s conviction for maliciously destroying by fire a building owned by an institution receiving Federal financial assistance in violation of 18 U.S.C. section 844(f) is affirmed where: 1) in general, the statute should be limited to arson of property acquired, renovated, or leased using federal financial assistance; 2) section 844(f) is constitutional and it applies to defendant’s conduct in this case; but 3) defendant’s sentence is vacated and remanded in light of US v. Giggey to determine whether defendant’s second career offender predicate is a crime of violence. ..

U.S. 1st Circuit Court of Appeals, December 03, 2009 Lopez v. Commonwealth of Massachusetts, No. 09-1664 In minority police officers’ disparate impact race claim under Title VII against a state agency that prepares and administers promotional examinations for local police officers under the state civil service system, their employers, various cities, and the Massachusetts Bay Transportation Authority (MBTA), district court’s denial of Eleventh Amendment immunity for the state defendants, the state of Massachusetts and a chief human resources officers of the Human Resources Division (HRD) in his official capacity, is reversed where: 1) the state defendants do not qualify as employers as that term is used in Title VII; 2) HRD cannot be deemed plaintiffs’ de facto employer as it exercised no control, direct or indirect, over the factors relevant to the common law agency test; and 3) plaintiffs’ alternate theories why HRD should be considered their employer under Title VII are rejected.

U.S. 4th Circuit Court of Appeals, December 02, 2009 Francis v. Giacomelli, No. 08-1908 In a case brought by a police commissioner and his deputies following a highly public dispute with the mayor of Baltimore resulting in the termination of their employment, dismissal of the action is affirmed as, based on the facts alleged in the complaint, the complaint fails to articulate any claim for relief that is plausible on its face. Furthermore, the mayor, against whom the allegations of due process violations were directed, is entitled to qualified immunity.
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November 23-27, 2009.

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U.S. 1st Circuit Court of Appeals, November 23, 2009 Vaqueria Tres Monjitas, Inc. v. Irizarry, No. 07-2240 In plaintiffs’ suit against Puerto Rico’s Milk Industry Regulation Administration, claiming that the Administration’s regulatory scheme governing milk prices violates the Due Process, Equal Protection, Takings, and dormant Commerce Clauses, grant of a preliminary injunction enjoining the regulatory scheme is affirmed where: 1) the district court properly declined defendants’ invitation to abstain from entertaining the action; 2) the Eleventh Amendment does not bar the form of relief granted by the district court in its preliminary injunction; 3) the district court did not abuse its discretion in rejecting defendants’ unclean hands defense; 4) the district court did not abuse its discretion in failing to dismiss the action on the basis of laches; 5) the district court did not abuse its discretion in rejecting defendants’ estoppel defense; and 6) district court did not abuse its discretion in granting plaintiffs’ motion for a preliminary injunction. ..

U.S. 3rd Circuit Court of Appeals, November 24, 2009 Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist. , No. 08-3826 In plaintiff’s 42 U.S.C. section 1983 suit challenging school district’s prohibition on celebratory religious music at school-sponsored events for the purpose of maintaining a policy of complete religious neutrality, summary judgment for the school district is affirmed as the court did not err in concluding that December concerts are not public fora, and that the school district’s interpretation of the policy was reasonably related to legitimate pedagogical concerns.

U.S. 6th Circuit Court of Appeals, November 25, 2009 Entm’t Prod., Inc. v. Shelby County, Tenn. , No. 08-5494 Denial of plaintiffs’ motion for a preliminary injunction in their suit against the county challenging the constitutionality of the Tennessee Adult-Oriented Establishment Registration Act is affirmed where: 1) the district court did not err in denying the preliminary injunction on the basis that plaintiffs did not demonstrate a substantial likelihood of success in their challenges to the definitions of “adult cabaret,” “adult-oriented establishment,” and “adult entertainment”; 2) the district court did not err in holding that a vagueness challenge is not likely to succeed on the merits as a narrowing construction sufficiently clarifies the parts this Act allegedly contaminated by vagueness; 3) plaintiffs’ claim that the Act’s requirements will result in a drastic reduction in the quantity and accessibility of speech is rejected; and 4) the issue of balancing of equities is moot as the district court correctly determined that plaintiffs have not demonstrated a likelihood of s! uccess on the merits.
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November 9-13, 2009.

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U.S. 1st Circuit Court of Appeals, November 12, 2009 Cabral v. US Dep’t of Justice, No. 07-1633 In an appeal arising from an underlying action brought by a nurse practitioner claiming that defendant-sheriff barred plaintiff from a County House of Correction (HOC) for informing the FBI of alleged prisoner abuse at the HOC, denial of defendants’ motions for a new trial and for remittur is affirmed where: 1) there is nothing in the record indicating that the district court abused its discretion in making its pre-trial evidentiary and disclosure rulings; 2) district court’s dismissal of defendants’ action under the Administrative Procedure Act (APA) was proper as there was nothing in the record indicating that agency’s denial of the defendants’ Touhy requests was arbitrary and capricious; 3) the evidence was sufficient to establish that the sheriff engaged in the callous and reckless conduct necessary to support an award of punitive damages; and 4) the award of punitive damages of $250,000 against sheriff was not excessive.

U.S. 2nd Circuit Court of Appeals, November 12, 2009 Wilson v. CIA, No. 07-4244 In a First Amendment action claiming that the CIA was required to allow former employee Valerie Plame Wilson to publish a memoir about her tenure at the agency, summary judgment for defendants is affirmed where: 1) plaintiff, and not the agency, permitted the classified information at issue to be revealed to the public; and 2) further, the public disclosure did not deprive the information of classified status, and the agency demonstrated good reason for adhering to its classification decision. A former CIA agent cannot use her own unauthorized disclosure of classified information to challenge the CIA’s ability to maintain the information as classified.

U.S. 3rd Circuit Court of Appeals, November 12, 2009 Berg v. Obama, No. 08-4340 In one of the so-called “birther” suits challenging Barack Obama’s eligibility to run for and serve as President of the United States based on claims that Obama was born in Kenya and therefore was not a natural born citizen of the United States, dismissal of the action is affirmed where plaintiff lacked standing to bring the suit because he suffered no injury particularized to him Continue reading

September 28 – October 2, 2009.

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U.S. 1st Circuit Court of Appeals, September 28, 2009 Chiang v. Skeirik, No. 08-2105
District court’s dismissal of plaintiff’s amended complaint arising from a denial of his petition for a fiancee visa is affirmed where: 1) district court did not err in dismissing plaintiff’s claim that his visa was improperly denied as he failed to state a plausible entitlement to relief; 2) district court did not err in dismissing plaintiff’s Bivens claims as he failed to name any officers in their individual capacities in the first amended complaint and a Bivens claim does not lie against the United States; and 3) district court did not abuse its discretion in denying plaintiff’s motion to file a second amended complaint as it would have been futile. .

U.S. 1st Circuit Court of Appeals, October 01, 2009 Remexcel Managerial Consultants, Inc. v. Arlequin, No. 08-1753
In a political discrimination case against a municipality in Puerto Rico, default judgment against defendants is affirmed where the district court did not abuse its discretion in entering the default judgment for repeated discovery violations, and the law of the case doctrine bars defendants’ attempt to re-argue the adequacy of plaintiffs’ complaint.

U.S. 2nd Circuit Court of Appeals, September 28, 2009 Frontera Resources Azerbaijan Corp. v. State Oil Co. of Azerbaijan, No. 07-1815 In a petition to confirm a Swedish arbitral award against the government of Azerbaijan, dismissal of the petition for lack of jurisdiction is reversed where the district court erred by holding that foreign states and their agents are entitled to rights under the Due Process Clause.
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September 7-11, 2009.

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U.S. 1st Circuit Court of Appeals, September 11, 2009 US v. Piza-Blondet, No. 08-2263
In condemnation proceedings involving a 34 acre parcel used by the Federal Aviation Administration for aircraft navigation, the district court’s judgment is affirmed where the district court: 1) did not abuse its discretion in excluding defendant’s own testimony when the court had excluded similar testimony by defendant’s expert; 2) did not err in holding that the “before and after” method was appropriate in valuing the property, assuming a partial taking; and 3) did not err in submitting to the jury unity of use. Defendant’s remaining contentions were without merit.

U.S. 6th Circuit Court of Appeals, September 11, 2009 Thompson v. Bell, No. 06-5744 In habeas proceedings arising from petitioner’s capital murder conviction, district court’s denial of relief is affirmed in part and reversed in part and remanded where: 1) district court’s denial of defendant’s Rule 60(b) motion is reversed and remanded with instructions for the district court to first rule on the merits of defendant’s remaining ineffective assistance claims, while only addressing the incompetency question if it rejects the ineffective assistance claims on the merits; 2) the case is remanded to conduct defendant’s incompetency hearing and decide the merits of his incompetency claim de novo because the Tennessee courts unreasonably applied federal law clearly established by Ford v. Wainwright, 477 U.S. 399, (1986); and 3) district court’s dismissal of defendant’s chemical competency claim is affirmed without prejudice to defendant raising a chemical competency claim in the future should he be forcibly medicated.

U.S. 7th Circuit Court of Appeals, September 08, 2009 Harper v. Sheriff of Cook County, No. 08-3413 District court’s certification of a class action lawsuit involving challenges to the constitutionality of certain intake procedures at a county jail is vacated as the intake procedures detainees are required to undergo on remand to the Sheriff’s custody after a probable cause hearing are an individual issue and thus, not appropriate for class disposition. The matter is remanded for resolution of plaintiff’s individual claims.
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August 24 – 28, 2009.

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U.S. 1st Circuit Court of Appeals, August 24, 2009 Calderon-Garnier v. Sanchez-Ramos, No. 08-1284
In an employment discrimination case brought by a former prosecutor of Puerto Rico, summary judgment and dismissal rulings for defendants are affirmed where plaintiff raised no genuine issue as to any material fact that would cause the court to doubt whether the plaintiff had a meaningful opportunity to participate in a pre-termination hearing.

U.S. 1st Circuit Court of Appeals, August 24, 2009 Crawford v. Clarke, No. 08-2100 In an action brought by Muslim inmates in the custody of the Massachusetts Department of Corrections (DOC) alleging the Commissioner violated their right to freely exercise their religion, grant of an injunction in favor of inmates is affirmed where the district court did not abuse its decision in denying Commissioner’s motion for reconsideration as the Commissioner sought to introduce evidence that could have been introduced at trial but chose not to.

U.S. 1st Circuit Court of Appeals, August 26, 2009 Negron-Almeda v. Santiago, No. 08-2360 In a case brought by dismissed employees of a government agency in Puerto Rico claiming political discrimination, district court’s order of reinstatement against defendant-intervenor is affirmed where: 1) it was proper for the district court to revisit the earlier order where, under the law of the case doctrine, courts may reopen a matter previously decided on a showing of exceptional circumstances such as the serious injustice to the plaintiffs in this case; 2) the reinstatement order was proper as defendants could be substituted for the original party under Rule 25(c) and they are not protected by sovereign immunity.
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July 20-24. 2009.

U.S. 5th Circuit Court of Appeals, July 21, 2009 Oscar Renda Contracting Inc. v. Lubbock, No. 08-10481 In a 42 U.S.C. section 1983 action claiming that defendant city violated the First Amendment by denying plaintiff a construction contract, summary judgment for defendant is affirmed where not all construction contract disputes involving government entities or agents are matters of public concern.

U.S. 5th Circuit Court of Appeals, July 21, 2009 US v. Whaley, No. 08-10951 Defendant’s conviction for failure to register in accordance with the Sex Offender Registration and Notification Act (SORNA) is affirmed where SORNA does not exceed Congress’s powers under the Commerce Clause because it forbids sex offenders from using the channels of interstate commerce to evade their registration requirements.

U.S. 6th Circuit Court of Appeals, July 22, 2009 Waeschle v. Dragovic, No. 08-2228 In a 42 U.S.C. section 1983 action against a county Medical Examiner for depriving plaintiff of her right to dispose of her deceased mother’s brain (removed in an autopsy and later incinerated as medical waste), denial of defendant’s motion for summary judgment based on qualified immunity is reversed where plaintiff had no clearly established property right in the brain because it was removed and retained for study in furtherance of a lawful criminal investigation Continue reading