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.
Fox v. Vice, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-114, to be argued 03/22/11). In 2005, Petitioner Ricky D. Fox ran for Police Chief of Respondent Vinton, Louisiana ("the Town"). During the campaign, Respondent Billy Ray Vice, the incumbent Police Chief, attempted to blackmail Fox and damage his public image. Fox won the election, but sued Vice and the Town for attempting to derail his campaign. Among Fox's claims was a civil rights allegation under a federal statute, 42 U.S.C. § 1983. Following discovery in Fox's civil case, Vice and the Town moved for summary judgment on the federal claim. Fox withdrew the claim, conceding that he failed to assert the required elements, but continued to pursue his state-based tort claims. The defendants then moved for attorneys' fees under 42 U.S.C. § 1988, arguing that Fox's federal claim was frivolous. The district court granted the defendants' motion, and the Fifth Circuit affirmed on appeal. Fox argues that in a case with factually intertwined claims, a defendant must prevail over an entire lawsuit in order to receive attorneys' fees. Vice and the Town, however, claim that nothing in Section 1988 prevents defendants from receiving attorneys' fees for individual frivolous claims. The Supreme Court's decision in this case will address Section 1988's purpose of encouraging meritorious civil rights claims, while discouraging groundless claims.
Lafler v. Cooper, (10-209) and Missouri v. Frye, (10-444), ___U.S. ___, both argued on 10/31/11, deal with the right to effective assistance of counsel during plea bargaining. In 2003, Anthony Cooper faced trial for assault with intent to murder. Prosecutors offered Cooper two plea deals carrying lesser sentences than he would have received under the sentencing guidelines. Pursuant to the advice of his trial counsel, Cooper rejected both offers and received a sentence demonstrably longer than either plea offer. Cooper claims that the Sixth Amendment guarantees effective assistance of counsel at all critical stages of a criminal proceeding, including the plea bargaining process. Cooper argues that his trial counsel's ineffective assistance prejudiced his trial, and that he is entitled to reinstatement of the plea offer. Petitioner Blaine Lafler argues that rejection of a plea bargain is not a critical stage. Lafler contends that Cooper is not entitled to relief because Cooper received a fair trial and no Sixth Amendment violation occurred.
After being charged with a felony for driving with a revoked license, Galin E. Frye was offered two plea bargain options: one, plead guilty to the felony with a recommended three years of imprisonment, or two, plead guilty to a misdemeanor with a recommended 90 days in jail. However, Frye's counsel never informed him of the plea options, and he subsequently pled guilty to the original felony charge. Frye now appeals, arguing that his counsel's failure to inform him of the plea bargain violated his Sixth Amendment right to effective assistance of counsel. The State of Missouri, as Petitioner, argues that Frye's situation falls outside of Sixth Amendment protections, and that, even if he was wronged, there is no available remedy.
Filarsky v. Delia, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-1018, to be argued Jan. 17, 2012). After petitioner Steve Filarsky, a private attorney retained by the City of Rialto to conduct an internal affairs investigation, prompted City officials to order respondent Nicholas Delia, a local firefighter, to consent to a warrantless search of his home, Delia brought a civil rights claim against both Filarsky and the City, alleging, among other things, a violation of his Fourth Amendment right to be free from unreasonable search and seizure. The district court granted a motion by Filarsky and the officials to dismiss the case on qualified immunity grounds, but the Ninth Circuit reversed in part, ruling that Filarsky, as a private attorney, could not enjoy immunity. Other circuit courts, however, have granted qualified immunity to private lawyers retained by the government. The Supreme Court must resolve the circuit split.
Messerschmidt v. Millender, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-704, to be argued Dec. 5, 2011). Petitioner, detective Curt Messerschmidt, obtained and executed a warrant to search Respondent Augusta Millender's residence. Millender sued Messerschmidt and other law enforcement officers under 42 U.S.C. § 1983 alleging that Messerschmidt and other officers violated her Fourth and Fourteenth Amendment rights by executing an invalid search warrant and unreasonably searching her home. The court determined that the warrant was unconstitutionally overbroad. Messerschmidt contends that he is nonetheless entitled to qualified immunity from civil liability because he relied on a warrant and acted in good faith. Millender, on the other hand, maintains that the officers' reliance on the warrant was unreasonable, and therefore, they are not entitled to qualified immunity.
Rehberg v. Paulk, ___ U.S. ___(No. 10-788, argued on 11/01/11). Relying on false testimony, three grand juries indicted Petitioner Charles Rehberg for varying charges. After the indictments were dismissed, Rehberg brought a private suit under 42 U.S.C. § 1983 against several parties, including Respondent James Paulk, who had testified before all three grand juries. The United States Court of Appeals for the Eleventh Circuit ruled that Paulk, an investigator in the district attorney's office, was entitled to absolute immunity for his testimony. The Supreme Court granted certiorari in this case to determine whether a government official who acts as a "complaining witness" is entitled to absolute immunity under Section 1983. Rehberg argues that complaining witnesses were never given absolute immunity under common law, and that a lesser grant of qualified immunity is more appropriate under the circumstances. Paulk, on the other hand, contends that a decision to withhold absolute immunity will discourage public officials from giving complete and objective testimony before grand juries.
Kohn v. Marquis, Case No. Unknown, Va Circuit Court(profiled on PoliceOne.com on 8/19/11). A lawsuit filed in the 2010 death of a police recruit alleges that "repeated, violent blows to the head" of John Kohn by training instructors resulted in a brain hemorrhage that created a subdural hematoma and caused his death. The lawsuit, filed Tuesday in Circuit Court by Kohn's widow, Patricia Kohn, asks for $35 million in compensatory damages and $350,000 in punitive damages. The suit names: Bruce P. Marquis, the former police chief; Sharon Chamberlin, current acting police chief and former senior assistant chief over the training division; and officers who trained recruits in defensive tactics - Leldon Sapp, Stephen Bailey, Michael Reardon and Laura Tessier. Kohn, 40, died in a hospital in December after he was injured during a week of defensive tactics training. He was hit in the head during drills - strikes that were routine training in Norfolk at the time - and also collided with another recruit while running. Since then, the department has joined other agencies in banning intentional head strikes during training. Experts have noted that headgear worn by recruits does not prevent them from getting head injuries. The lawsuit alleges Marquis and Chamberlin failed to properly operate and supervise the training academy and alleges the instructors hit Kohn in the head, causing his death. Kohn blacked out after three sparring drills in which he was expected to block blows from instructors on top of him. The third drill led to public outrage after the release of a video that showed Sapp hitting Kohn, whose arms then fell flat to the mat. A few minutes later, he began making snoring and gurgling noises and was taken to the hospital. He never regained consciousness. Although instructors asked recruits three times a day whether they were injured, Kohn did not speak up.
Mahoney v. State of Pennsylvania, profiled on Findlaw 03/16/11. Federal lawsuit filed against state police over Taser incident. Wednesday, March 16, 2011. Pittsburgh Post-Gazette. A Clarion County incident in which a gasoline-soaked man burst into flames and died, allegedly after being zapped with a Taser, is the subject of a federal lawsuit filed Tuesday against the Pennsylvania State Police. Levi Mohney was 24 on March 18, 2009, when state troopers surrounded his girlfriend's Strattenville mobile home and demanded that he come out, according to the complaint filed in the Western District of U.S. District Court by attorney Patrick G. Geckle, of Philadelphia. When he would not come out, they broke open the door. Mr. Geckle said they were investigating an allegation that he had assaulted his girlfriend. During the encounter police used a Taser, and because he had previously soaked himself in gasoline, Mr. Mohney ignited and suffered burns over 98 percent of his body, the complaint said. His father, Shawn Mohney, of New Bethlehem, is suing for violations of civil rights, wrongful death, and violations of the Americans with Disabilities Act. Mr. Geckle said Mr. Mohney was suffering from a mental disability. "In my humble opinion, there was no need to Taser the man," said Mr. Geckle. "He wasn't armed. He wasn't posing a direct threat to the officers." State police had no comment Tuesday. First published on March 16, 2011 at 12:00 am
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.
Williams v. Illinois, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-8505, to be argued December 6, 2011). Petitioner, Sandy Williams, was charged with sexual assault on 22-year-old L.J in 2000. At trial, the prosecution called an expert witness to testify about DNA test results that identified Williams as the assailant. He moved to strike the evidence under the Sixth Amendment's Confrontation Clause because the testifying witness had not performed the DNA tests. The court denied his motion and convicted Williams of sexual assault, kidnapping, and robbery. He contends that allowing an expert witness to testify regarding forensic reports when the witness did not prepare the reports violates the Confrontation Clause. Williams insists that he must have the opportunity to cross-examine the analysts that prepared the reports, particularly because DNA test results are prone to error or manipulation. Respondent, the State of Illinois, argues that allowing the expert witness to testify does not violate the Confrontation Clause because the witness was applying her own independent analysis and opinions concerning the report.
Hill v. United States and Dorsey v. United States, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (Nos. 11-5683 and 11-5721, cert. granted 11/28/11). Supreme Court to address whether the Fair Sentencing Act of 2010 can be applied to sentencing for an offense that occurred before the statute's effective date. The Fair Sentencing Act, which became effective August 3, 2010, raised the amount of crack cocaine necessary to trigger the 10-year mandatory minimum term from 50 to 280 grams, and the amount needed to trigger a 5-year mandatory minimum from 5 to 28 grams. A jury found Petitioner Corey Hill guilty of possessing 50 or more grams of crack in 2009. At sentencing in December 2010, the district judge relied on Seventh Circuit precedent to conclude that the Fair Sentencing Act did not apply retroactively to Hill's case, and sentenced Hill to 10 years in prison. The judge noted that he would have sentenced Hill to less than half that amount of time if not for the mandatory minimum. While oral arguments have not yet been set, Hill will attempt to persuade the Supreme Court that the Fair Sentencing Act should apply to any defendant sentenced after its enactment, regardless of when the underlying crime was committed. The Court consolidated Hill v. U.S. with a second Seventh Circuit mandatory minimum appeal, Dorsey v. U.S.
City of Newark v. Betty Lucas, ___ Oh. ___ (Case No. Unknown. Case profiled in New York Times 5/30/03). 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."
California v. Alvarez, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. ___, to be argued fall 2011). The case the high court decided to hear involves Xavier Alvarez, four years ago a member of a water district board. He introduced himself at a meeting as a retired Marine, who’d been awarded the nation’s top military decoration. The Pomona, Calif., man had never served in the military. Nor had he played hockey for the Detroit Red Wings, served as a police officer, married a Mexican starlet or piloted a helicopter in Vietnam, some of his other claims. He pleaded guilty and was sentenced to more than 400 hours of community service at a veteran’s hospital and fined $5,000 under the Stolen Valor law. His case was appealed to a panel of the San Francisco-based federal appeals court, which voted 2-1 against his conviction. Chief Judge Alex Kozinski, in the majority, said people often spin yarns about themselves in day-to-day social interactions. It would be “terrifying” if people could be prosecuted for merely telling lies, he said. Evidence does not show that such lies harm anybody, so no compelling reason exists to make a crime out of them, the majority said. Nor is it the role of government to act as “truth police.” Appealing the California decision, U.S. Solicitor General Donald Verrilli Jr. noted the long-held validity of other laws that punish those making false promises to obtain money or false claims to damage a person’s reputation. The military honors system must be safeguarded, he said.
Heller v. District of Columbia, ___ F.3d ___ (D.C. Cir. No. 10-7036, filed 10/14/2011)(Heller II). After the Supreme Court struck down DC's handgun ban, the District adopted a registration requirement and prohibited assault weapons and high-capacity magazines. The Circuit found that the laws did not violate the Second Amendment.
Greene v. Fisher, Superintendent, Smithfield, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-637, set for argument Oct. 11, 2011). Petitioner Eric Greene was accused of participating in a grocery store robbery that left the storeowner dead. Greene argues that statements made by non-testifying co-defendants improperly implicated him, because the trial court redacted co-defendant statements by replacing references to Greene with blanks or neutral pronouns. While Greene awaited appeal, the Supreme Court decided Gray v. Maryland, which held that obvious redactions of the kind in Greene's case do not sufficiently protect the accused. Based on this development, Greene petitioned for habeas relief. The U.S. Court of Appeals for the Third Circuit denied relief, reasoning that Section 2254(d) of the Antiterrorism and Effective Death Penalty Act does not apply because Gray was not "clearly established Federal law" during Greene's trial. Greene argues under Teague v. Lane that habeas petitioners benefit from any Supreme Court decision handed down before their convictions become final. Respondent Jon Fisher argues that the phrase "clearly established" precludes re-litigation of issues settled by state courts unless the state's decision was unreasonable in light of the law existing when the decision was handed down. The Supreme Court's decision in this case will address the meaning of "clearly established Federal law," posing broad implications for future and ongoing habeas petitions.
United States v. State of Arizona, ___ F.3d ___ (9th Cir. No. 10-16645, filed 04/11/11). Deals with the controversial bill passed in Arizona, SB 1070. On July 28, 2010, in United States v. State of Arizona, 10-CV-1413-SRB, U.S. District Court Judge Susan Bolton issued an order enjoining enforcement of several portions of SB 1070, including portions that require police officers to make a reasonable attempt to determine a person's immigration status when they have stopped someone and reasonable suspicion exists to suspect unlawful presence; to determine an arrestee's immigration status prior to releasing them from custody; requiring aliens to carry certain alien registration documents; creating a misdemeanor crime to solicit or perform work in Arizona without authorization; and authorizing police officers to make warrantless arrests upon probable cause for any "public offense that makes the person removable from the United States." The Ninth Circuit, in a 2-1 decision, left the injunction in place, holding that state action in the area of immigration is preempted by federal law. It also commented on Arizona's attempt to wade into foreign policy: "The record before this court demonstrates that S.B. 1070 does not threaten a “likelihood . . . [of] produc[ing] something more than incidental effect;” rather, Arizona’s law has created actual foreign policy problems of a magnitude far greater than incidental." Arizona is expected to seek en banc review or appeal to the United States Supreme Court.
Coalition of La Raza v. Gary R. Herbert, ___ F.3d ___ (USDC, Central Utah, Case No. 11-CV-401-BCW, filed 05/03/11). ACLU's suit against the State of Utah to enjoin enforcement of its Immigration bill similar to Arizona SB 1070. According to policemag.com, on May 10, 2011, a federal judge has blocked Utah's new immigration law, citing its similarity to Arizona's 2010 law.
Howes v. Fields, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-680, set for argument October 4, 2011. Court will determine whether prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.
United States v. Fricosu, ___F.Supp. ___ (USDK - DISTRICT OF COLORADO, Case No. 10-cr-00509-01-REB). Fricosu and her husband are facing bank fraud, wire fraud, and money laundering charges for allegedly seeking to take title to foreclosed homes. Officers seized a laptop believed to contain evidence, but its files are encrypted. The government seeks an order requiring Fricosu to supply the encryption key. Her attorney argues that doing so would violate the Fifth Amendment.
Alford v. Greene & Camareta v. Greene, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (Case Nos. 09-1478 & 09-1454, set for argument 03/01/11). When government officials intend to question a child abuse victim at a school, do they have to show an exception to the warrant requirement? The Ninth Circuit held these interviews were unreasonable seizures in the absence of a warrant, court order or parental consent.
Virginia v. Sebelius, ___ F.3d ___ (4th Cir. No. 11-1057 & 1058, filed 09/08/11), cert granted 565 U.S. ___ (11/14/11, No. 11-393, 11-400 & 11-398). Trial court's decision striking down the "individual mandate"provision of the Affordable Care Act (Obamacare) as exceeding constitutional authority is reversed. Virginia does not have standing to challenge the provison.
Croddy v. United States, ___ F.3d ___ (D.C. 2000). Suit challenges the FBI's use of polygraph for pre-employment screening. Requests declaratory judgment.
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.
Sorrell v. IMS Health, Inc., 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-779, to be argued 04/26/11). In 2007, Vermont passed Act 80, which prohibits prescription drug companies from obtaining patients' personal information for marketing purposes without the prescribing physician's consent. The pharmaceutical companies sued the state of Vermont, seeking an injunction prohibiting the enforcement of Act 80 on the grounds that it was an unconstitutional restriction on their right to commercial speech. Vermont argues that Act 80 does not regulate speech protected by the First Amendment, and that the law is related to Vermont's interests of protecting medical privacy, controlling health care costs, and protecting public health. On the other hand, the pharmaceutical companies argue that Act 80 is unconstitutional because it discriminates against the speech of pharmaceutical manufacturers and it is not related to Vermont's state interests. The Supreme Court's decision will affect patients' and physicians' privacy, the marketing of prescription drugs, and the status of other laws protecting consumer privacy.
Florence v. Board of Chosen Freeholders, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 10-945, to be argued October 12, 2011.). Court will determine whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances. Petitioner Albert Florence was arrested on an outdated bench warrant for a non-indictable offense and was subjected to "strip searches" in two separate prison facilities. Florence sued both facilities, alleging that their blanket policies of strip searching all detainees, regardless of their offense, violates the Fourth Amendment. The United States Court of Appeals for the Third Circuit reversed a District Court opinion, holding that the policies in this case did not violate the Fourth Amendment. Florence argues that the Fourth Amendment protects detainees from suspicionless strip searches when less intrusive alternatives better serve penological interests. The Respondents contend that the prison context diminishes the Fourth Amendment's privacy expectation, and that the privacy expectation is outweighed by the security interest promoted by blanket strip searches.
United States v. Antoine Jones, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-1259, cert granted 06/27/11). Do police need a warrant to use a global positioning system device to track a suspect's movements? The D.C. Circuit held that police must obtain a warrant to use the GPS device for an extended period of time (one month) to covertly follow a suspect.
United States v. Jones, No. 08-3034 (probably the same case as above - but had a different number in LIBulletin preview). The Court will rule on the police use of Global Positioning System ("GPS") tracking devices. The lower court held that the police violated Antoine Jones' Fourth Amendment rights by secretly installing a GPS tracking device on his car, and operating the device for 28 days, without obtaining a warrant. In addition to deciding whether the prolonged use of a tracking device violates the Fourth Amendment, the Court will address a second question: did the installation of the GPS device on Jones' car, with neither Jones' consent nor a warrant, violate the Fourth Amendment. The Court will determine whether this "dragnet" type of monitoring violates the Fourth Amendment, and will resolve inconsistencies in the lower courts regarding GPS tracking.
Tolentino v. New York, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-11556, to be argued 03/21/11). Following an automobile stop in Manhattan, New York police officers ran Petitioner Jose Tolentino's driver's license through a Department of Motor Vehicles (DMV) database, discovering that his driver's license had been suspended and that he had at least ten suspensions for failure to answer a summons or to pay a fine. Tolentino was indicted by a grand jury for aggravated unlicensed operation of a motor vehicle. On appeal, Tolentino argues his DMV records must be suppressed because they were the fruit of an unlawful stop. Respondent State of New York argues that, even if the stop was unlawful, the exclusionary rule should not be extended to apply to information the government already possessed, since such an application would be unreasonable. The Supreme Court will have to balance the cost of suppressing highly probative evidence against the potential benefit of discouraging police from conducting random automobile stops without probable cause.
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.
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
January 16, 2012