These cases are not yet final, but bear close watching due to their potential impact on law enforcement. Ideally, once the case becomes final, the blurb about the case will move to the case update list, but I am not always ideal and you may occasionally find cases lurking on both lists.
Perdue v. Kenny A., 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-970, argued 10/14//09). Appealed from: United States Court of Appeals for the Eleventh Circuit (July 3, 2008). In 2005, Kenny A. and eight other plaintiffs (collectively "Kenny A.") settled a federal civil rights class action lawsuit against the Georgia Department of Human Resources and others. The settlement provided, in relevant part, that "the Plaintiff Class is entitled to recover its expenses of litigation, including reasonable attorneys fees . . . pursuant to 42 U.S.C. § 1988." The District Court for the Northern District of Georgia approved a lodestar amount and a fee enhancement, which the court attributed to the extraordinary performance by Kenny A.'s counsel. The Court of Appeals for the Eleventh Circuit affirmed, and the U.S. Supreme Court granted certiorari to determine if, under 42 U.S.C. § 1988, courts may increase the amount they award in attorney's fees to prevailing civil rights litigation plaintiffs in recognition of extraordinary performance by their counsel. The Court's decision will affect the economic incentives around federal civil rights litigation.
Civil & Criminal Liability
Lewis v. City of Chicago, IL, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-974, to be argued 02/22/10). Petitioners, Arthur L. Lewis, Jr., et al. ("Lewis"), a group of African Americans who applied to become firefighters in Chicago sued the city under the Civil Rights Act of 1964, claiming Chicago's use of an eligibility test had a disparate racial impact on African Americans, effectively resulting in employment discrimination. The plaintiffs won their discrimination lawsuit in the federal district court, but the Seventh Circuit reversed on the basis that the claim had not been filed within the 300-day filing period for employment discrimination claims. The Court held that the filing period began at the time that the applicants were informed of the results of the test. This case presents the Court with the opportunity to determine whether the subsequent use of the results of an eligibility test with disparate racial impact qualifies as a discretely new violation of the Civil Rights Act that would begin anew another 300-day filing period.
Counsel, Ineffective
Padilla v. Kentucky, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-651, argued 10/13/09). Appealed from: Supreme Court of Kentucky (Jan. 24, 2008). In 2002, Jose Padilla ("Padilla"; not the terrorism detainee), a Legal Permanent Resident of the United States, pleaded guilty to a Kentucky drug trafficking offense. Padilla claims he pled guilty in reliance on his defense counsel's advice that he did not have to worry about deportation as a consequence of his plea. In fact, under federal law, drug trafficking is a deportable offense. Padilla claims that under the Sixth Amendment, he was denied effective assistance of counsel because his defense counsel failed to advise him as to the possible immigration consequences of his plea, and in fact misadvised him. The Commonwealth of Kentucky contends that Padilla was not denied effective assistance of counsel, because the Sixth Amendment does not require that defense counsel advise clients of collateral consequences, and immigration consequences are collateral consequences of guilty pleas. The outcome of this case will affect the duty a defense counsel has to a non-citizen client when advising a client regarding a guilty plea and the rights of a non-citizen to claim ineffective assistance of counsel when not advised or misadvised of immigration consequences.
State v. Ernesti, ___ Kan. ___, ___ P.3d ___ (No. 09-101925-A, argued 12/07/09). State's appeal from DG county District Judge Paula Martin's ruling that due to new KDHE regulations issued in March 2008, previously certified instruments became "uncertified."
Estate of Chris Cooper v. Wilfrito Pulholtz, City of Independence, Paramedics, etc., et al. Profiled on KCTV 12/17/08. Case against Independence Police Department who was chasing Pulholtz when he ran over Cooper and killed him. Cooper 17, was riding a bicycle at Noland Road at Osage on 11/08/07. Alleges police were negligent by violating chase policy, were reckless in failing to provide proper medical care, and joking about Cooper.
City of Newark v. Betty Lucas, ___ Oh. ___ (Case No. Unknown. Case profiled in New York Times 5/30/03 - according to a website the Ohio Supreme Court reversed the conviction on 9/24/03). Ohio Supreme Court to consider whether city can prosecute for complicity in violation of a restraining order. Ms. Lucas had a protective order issued for her benefit after several domestic situations. She invited her ex-husband Joseph to a birthday party for one of their children. They started drinking and then fighting, and soon they were explaining themselves to the police. She was convicted of domestic violence and violating the restraining order and received a 90 day suspended jail sentence and two years probation. Joseph was convicted of violating the restraining order and received a 90 day suspended jail sentence and paid a fine of $100. An appeals court in Canton affirmed that decision last year, holding that Ms. Lucas had "recklessly exposed herself to the offender from whom she has sought protection." The appeals court decision broke new ground, said Cheryl Hanna, an expert in domestic violence law who teaches at Vermont Law School. "This is the first case," Professor Hanna said, "in which a court has held that it's allowable for the state to charge a woman with aiding and abetting her abuser in violating a restraining order."
Briscoe v. Virginia, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-11191, scheduled for argument: Jan. 11, 2010). This case involves how a state can comply with the Confrontation Clause when presenting certificates of forensic analysis into evidence, rather than having the forensic analyst testify to the results of the evidence testing. In June 2009, the Supreme Court held in Melendez-Diaz v. Massachusetts that certificates of analysis must be accompanied by an opportunity to cross-examine the forensic analyst who prepared the report. However, Virginia Code Sections 19.2-187 and 19.2-187.1 allow for a defendant to question a forensic analyst at trial by calling him as a defense witness. Petitioners Mark Briscoe and Sheldon Cypress argue that this violates Melendez-Diaz and the Confrontation Clause by shifting the burden to the defendant and creating a waiver of a constitutional right through inaction. Virginia claims that the scheme is constitutional because the defendants are on notice of the charges against them and may still call the forensic analyst as a witness themselves. This case could affect trial strategy and the cost of presenting forensic evidence, as well as provide an opportunity for the Court to examine the recent 5-4 Melendez-Diaz v. Massachusetts decision, where recently retired Justice David Souter cast a deciding vote.
United States v. Stevens, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-769, cert. granted 04/20/09, argued 10/06/09). Defendant was convicted of distribution of depictions of unlawful animal torture in violation of 18 U.S.C. 48 for selling Pit Bull fighting videos. The Third Circuit held the statute violates the First Amendment. Decision below 533 F.3d 218.
http://origin.www.supremecourtus.gov/qp/08-00769qp.pdf
McDonald v. Chicago, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1521, to be argued 03/02/10). QUESTIONS PRESENTED: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses. The Supreme Court's ruling in the D.C. case, District of Columbia v. Heller, was portrayed as remarkable because it announced for the first time that Second Amendment gun rights are individual rights (rather than rights only associated with militias protecting against tyranny from the federal government). The Supreme Court found D.C.'s ban on handguns to violate individuals' Second Amendment rights. However, the case applied only to the District of Columbia and not to any states or cities outside D.C. All eyes will be watching to see what the Supreme Court does. It could either simply decide whether or not individual Second Amendment rights apply to residents of each state, or it could go further and detail what types of gun restrictions will be allowed going forward. As held in the D.C. case, individuals have Second Amendment rights, but some gun restrictions may satisfy constitutional requirements. Many (including lower courts) hope that the Supreme Court offers specific clarification as to which types of gun restrictions will pass muster and which won't. Other cities, including New York, face similar challenges to their gun laws.
Berghuis v. Thompkins, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1470, to be argued 03/01/10). The Court will consider the question whether police may interrogate a suspect in custody when the suspect, after receiving the Miranda warnings, has neither explicitly waived, nor explicitly invoked, his right to remain silent. Police picked up Van Chester Thompkins in Ohio for murder and attempted murder. After taking him into custody, the officers read him Miranda warnings and asked whether he understood them. He indicated that he did. He did not, however, either invoke his rights (by saying, for example, "I don't want to answer any questions" or "I want a lawyer") or explicitly waive them (by expressing an affirmative desire or willingness to answer questions). The police then began to interrogate Thompkins about the suspected murder, and he responded with short verbal and nonverbal answers and without much elaboration. To one of the questions – asking whether Thompkins prayed to God for forgiveness for "shooting that boy down" – he responded "Yes." The government later offered into evidence this affirmative response, an apparent confession, at Thompkins's trial, which ended in convictions for murder, attempted murder, and firearm offenses. Thompkins unsuccessfully appealed his convictions in the Michigan courts and then brought a petition for habeas corpus in federal court. The district court denied the petition, but the U.S. Court of Appeals for the Sixth Circuit reversed, finding that Thompkins's statement to police should have been suppressed, because he had not waived his Miranda rights.
http://origin.www.supremecourtus.gov/qp/08-01470qp.pdf
Croddy v. United States, ___ F.3d ___ (D.C. 2000). Suit challenges the FBI's use of polygraph for pre-employment screening. Requests declaratory judgment.
Offender Registration
Carr v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1301, to be argued 02/24/10). The Sex Offender Registration and Notification Act ("SORNA") requires convicted sex offenders to register in any jurisdiction in which the offender resides and imposes criminal penalties on any sex offenders who travel in interstate commerce and knowingly fail to register. Before SORNA was enacted, Thomas Carr, a convicted sex offender, moved to Indiana but failed to register. A federal grand jury indicted Carr for his failure to register under SORNA. Carr appealed to the U.S. Circuit Court of Appeals for the Seventh Circuit, arguing that applying SORNA violated the ex post facto clause as his conviction and travel predated SORNA. The Seventh Circuit held that SORNA did not violate the ex post fact clause because the failure to register occurred after SORNA was enacted. The Supreme Court's decision will settle a circuit split over whether SORNA can punish sex offenders who traveled in interstate commerce before its enactment.
C.L. Trustees v. Lockheed Martin, San Diego Superior Court case no. GIC773619. Class action lawsuit against red light camera contractor was certified in March 2003 in San Diego The municipal agencies contract with ACS (formally Lockheed Martin IMS) to administer thus program. Attorney for the contractor ACS, Chris Lui of O'Melveny & Myers (213) 430-6112.
City of Ontario v. Quon, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1332, cert. granted 12/14/09). The Supreme Court says it will decide how much privacy workers have when they send text messages from company accounts. California SWAT sergeant Jeff Quon was fired for using his departmental pager to transmit sexually explicit messages to his wife. The justices will review a federal appeals court ruling that sided with Ontario, Calif., police officers who complained that the department improperly snooped on their electronic exchanges. The 9th U.S. Circuit Court of Appeals in San Francisco also faulted the text-messaging service for turning over transcripts of the messages without the officers' consent. Users of text-messaging services "have a reasonable expectation of privacy" regarding messages stored on the service provider's network, 9th Circuit Judge Kim Wardlaw said. Both the city and USA Mobility Wireless, Inc., which bought the text-messaging service involved in the case, appealed the 9th Circuit ruling.
Mayfield v. Federal Bureau of Investigation, Case No. and District unknown. Profiled in the Topeka Capital Journal on October 5, 2004. The Portland lawyer mistakenly arrested by the FBI in the Madrid train bombings sued the U.S. government Monday, claiming his rights were trampled on because of his Muslim faith. Brandon Mayfield, a 38-year-old convert to Islam, is seeking unspecified damages and a ruling that key provisions of the Patriot Act are unconstitutional. Mayfield is a Kansas native and graduate of the Washburn University School of Law. He accused the government of violating his civil liberties by wiretapping his Oregon home and filing misleading affidavits to justify his two-week imprisonment. "The Patriot Act goes way too far in taking away our privacy and freedom as U.S. citizens," Mayfield told The Topeka Capital-Journal in a May interview. "Not even a 'war on terror' allows the federal government to deprive U.S. citizens of their constitutionally protected rights," Mayfield's attorneys said in a statement.
United States v. O'Brien, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 08-1569, to be argued 02/23/10). Respondents, Arthur Burgess and Martin O'Brien, pled guilty to a variety of criminal charges, including possession of a firearm in furtherance of a violent crime. At sentencing, the judge determined that he could not apply a thirty-year mandatory minimum sentence because the government had not proven beyond a reasonable doubt that defendants had possessed an automatic weapon during the crime. Petitioner, the United States, contends the judge could have found possession by a preponderance of the evidence as a sentencing factor and applied the thirty-year sentence enhancement. Respondents, Burgess and O'Brien, argue that the government must prove possession to a jury beyond a reasonable doubt as an element of the crime.
Phalp v. City of Overland Park, ___ F.Supp. ___ (D. Kan., Case No. Unknown 2000). Plaintiffs allege Overland Park police failed to protect their daughter when they took no action after 17-year old Aubrey Phalp reported a threat and/or attack by four men. Plaintiffs claim police told Phalp she was not credible because she suffered from bipolar disorder and was not taking her medication. Todd Miller Deal was convicted of premeditated first-degree murder and is serving a life sentence for Phalp's death. Case Profiled in 10 K.L. 377, 378 (Week of Aug. 6-12, 2000).
Village of Dolton, Illinois v. Taser International, 05-C-4126 (Northern District of Illinois, ED). Class action complaint filed 7/18/05 alleging that Taser products are unsafe.
John J. Knoll
March 2, 2010