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This case acquaints us with a wrongful discharge claim that most of us are not familiar with. Under the Surface Transportation Assistance Act, a trucking company cannot fire a truck driver for refusing to drive a truck on an interstate highway that exceeds the federal weight limit. That's what happened to the plaintiff in this case, and a jury in New Haven awarded him compensatory and punitive damages. That verdict is upheld on appeal.
The case is Kennedy v. Supreme Forest Products, a summary order issued on February 6. Plaintiff was directed to drive a truck that exceeded 80,000 pounds. The truck was carrying a load of mulch. This was in April 2014; springtime is a good time to deliver mulch. But this was too much mulch, so plaintiff objected, and was fired as a result. The jury awarded him nearly $12,000 in compensatory damages and $425,000 in punitive damages, which the trial court reduced to $250,000, the statutory cap. The company challenges liability and the size of the punitive damages award.
Management says the verdict was rooted in speculation because plaintiff never testified that he would have operated the truck on an interstate highway. But there was no speculation, the Court of Appeals (Cabranes, Calabresi and Wesley) says, because plaintiff testified that he understood the federal weight limitation applied only to the "federal highway system" and he did not want to break "the overweight law." Also, "common sense and geography" supports the verdict, says the Second Circuit. Two of the judges on the panel are from Connecticut, so this was the wrong panel to suggest the jury got it wrong on this issue. Testimony demonstrated the plaintiff refused to transport two loads, originating in Southington, Connecticut and destined for Bridgeport and Hartford. The most direct route for these trips involves the interstate highway system, and "a local jury (as this one was) would not even have needed a map" to know this. I guess if you live in the area, everyone knows this. As Judge Calabresi said at oral argument, "Connecticut only has so many highways" and it is unlikely plaintiff would have driven on "dirt roads."
What about the punitive damages? The $250,000 is the cap under federal law for these claims, and the jury was able to find that defendant was motivated by greed and repeat offenses. As for liability for punitive damages, the evidence shows defendant tried to cover up what happened, telling HR that plaintiff had quit his job (and was not fired). And, the employee handbook discusses the applicable regulations, demonstrating that it knew the law, such that it "discriminated in the face of a perceived risk."
What this case tells us is that it is quite difficult to challenge a jury verdict on appeal, and that arguments that the verdict was rooted in speculation are equally difficult. Here, we inferred that defendant wanted plaintiff to drive his truck on the interstate highway, even though, I guess, no one directly testified to that fact. But we can draw inferences so long as they are not unreasonable.
Thursday, February 7, 2019
Wednesday, February 6, 2019
Intern at cosmetology school not entitled to salary under the FLSA
From time to time, the Second Circuit puts further gloss on the legal doctrine that says some entities do not have to pay their interns any salary. This case falls under that category. The Second Circuit says a student at a for-profit cosmetology school who had to perform barbering and other cosmetology services to the public at discounted prices.
The case is Velarde v. GW GJ, Inc., decided on February 5. The seminal case in this area is Glatt v. Searchlight Pictures, 811 F.3d 528 (2d Cir. 2015), which says the intern is not entitled to any compensation under the Fair Labor Standards Act if the intern is the "primary beneficiary" of the relationship. If the intern's employer is the "primary beneficiary" of the relationship, then the entity is an employer under the FLSA and the intern has to receive compensation.
Velarde is the lead plaintiff in a potential class action. After finishing eight weeks in the classroom, plaintiff worked at the salon run by the school, performing cosmetology services for the public. He also had to perform janitorial and clerical work. Under state law, to offer cosmetology services in New York, you have to complete 1,000 hours of coursework in various subject areas, like hair styling and presumably shampoo, like the beauty school dropout in Grease.
Plaintiff said the beauty school was the primary beneficiary of the relationship because it derived revenue from the work he performed for paying customers. He says that any training and skills he received from providing those services are "besides the point." The Second Circuit (Cabranes, Carney and Caproni [D.J.]) disagrees. The Court first holds that the "primary beneficiary" test applies in cases involving vocational schools or vocation-related programs. It then holds that plaintiff was the primary beneficiary of this relationship because he received significant benefits from his work at the Salon, as he was required to complete 1,000 hours of coursework, and he did so under the supervision of the school's instructors. And the school actually had plaintiff work exactly 1,000 hours, consistent with state licensing requirements. While plaintiff says he also performed clerical and janitorial duties, the Second Circuit has already held that relatively menial or repetitive tasks may legitimately comprise part of the intern relationship for which the intern receives no pay. And, while plaintiff points out the Salon earned money from his cosmetology work, "the Academy has no obligation not to turn a reasonable profit on its operations" and "this is not a case in which a business uses the facade of a vocational school to deceive students into working unexpectedly long hours without compensation, replacing the labor of its paid employees, or working hours well beyond long-standing state requirements."
The case is Velarde v. GW GJ, Inc., decided on February 5. The seminal case in this area is Glatt v. Searchlight Pictures, 811 F.3d 528 (2d Cir. 2015), which says the intern is not entitled to any compensation under the Fair Labor Standards Act if the intern is the "primary beneficiary" of the relationship. If the intern's employer is the "primary beneficiary" of the relationship, then the entity is an employer under the FLSA and the intern has to receive compensation.
Velarde is the lead plaintiff in a potential class action. After finishing eight weeks in the classroom, plaintiff worked at the salon run by the school, performing cosmetology services for the public. He also had to perform janitorial and clerical work. Under state law, to offer cosmetology services in New York, you have to complete 1,000 hours of coursework in various subject areas, like hair styling and presumably shampoo, like the beauty school dropout in Grease.
Plaintiff said the beauty school was the primary beneficiary of the relationship because it derived revenue from the work he performed for paying customers. He says that any training and skills he received from providing those services are "besides the point." The Second Circuit (Cabranes, Carney and Caproni [D.J.]) disagrees. The Court first holds that the "primary beneficiary" test applies in cases involving vocational schools or vocation-related programs. It then holds that plaintiff was the primary beneficiary of this relationship because he received significant benefits from his work at the Salon, as he was required to complete 1,000 hours of coursework, and he did so under the supervision of the school's instructors. And the school actually had plaintiff work exactly 1,000 hours, consistent with state licensing requirements. While plaintiff says he also performed clerical and janitorial duties, the Second Circuit has already held that relatively menial or repetitive tasks may legitimately comprise part of the intern relationship for which the intern receives no pay. And, while plaintiff points out the Salon earned money from his cosmetology work, "the Academy has no obligation not to turn a reasonable profit on its operations" and "this is not a case in which a business uses the facade of a vocational school to deceive students into working unexpectedly long hours without compensation, replacing the labor of its paid employees, or working hours well beyond long-standing state requirements."
Tuesday, February 5, 2019
No fourth amendment liability in gun-seizure case
This search and seizure case involves assault weapons in Connecticut. The police entered this guy's home to retrieve weapons that plaintiff was not supposed to have because they mistakenly thought he had a felony conviction. He sues the officers for entering his home without a warrant. Plaintiff loses the case.
The case is Kaminsky v. Schirio, a summary order issued on January 24. The FBI told local police that plaintiff had a felony conviction and therefore was not allowed to possess any firearms. The police showed up at plaintiff's house, and plaintiff recognized one of them, so he said, "What's up Walt?" Plaintiff then waved the police into his house. Big mistake. When the police entered the house, plaintiff voluntarily surrendered his guns. The other cops waited outside and minded their own bees-wax, declining to search the property. A few days later, the police returned to plaintiff's home, and he turned over more guns. In all, plaintiff had 59 firearms in his house, there of which were illegal assault weapons.
In this fourth amendment case, plaintiff says the police had no right to be in his house. The Court (Katzmann, Hall and Lynch) disagrees. Kaminsky consented to their entry after they said, "can we come in?" Emphasis in "we," which means more than one. The officers who entered the house did so at plaintiff's invitation. Now, as it happens, plaintiff was not actually a convicted felon. His conviction from 1964 was not a felony at the time. But, the Court says, that is no reason to find the police violated the Fourth Amendment in entering the house, as it provides no basis to believe that plaintiff's consent for the police to enter was coerced.
So what about the officers who did not enter the house? Plaintiff sues them as well, claiming they were present on the curtilage and their mere presence violated the Constitution. This claim also fails under qualified immunity. Even if the area was curtilage, the officers reasonably believed the area in which they waited was not curtilage. The opinion is not clear as to why this is so, but in the statement of fact, the court notes the officers were standing near a public lake. While more recent Supreme Court cases may call the district court's analysis on the curtilage issue into question, under qualified immunity principles, we look at the law as it existed at the time of the alleged constitutional violation. As the officers are not expected to anticipate those developments, they did not knowingly violate clearly-established law. The case is dismissed.
The case is Kaminsky v. Schirio, a summary order issued on January 24. The FBI told local police that plaintiff had a felony conviction and therefore was not allowed to possess any firearms. The police showed up at plaintiff's house, and plaintiff recognized one of them, so he said, "What's up Walt?" Plaintiff then waved the police into his house. Big mistake. When the police entered the house, plaintiff voluntarily surrendered his guns. The other cops waited outside and minded their own bees-wax, declining to search the property. A few days later, the police returned to plaintiff's home, and he turned over more guns. In all, plaintiff had 59 firearms in his house, there of which were illegal assault weapons.
In this fourth amendment case, plaintiff says the police had no right to be in his house. The Court (Katzmann, Hall and Lynch) disagrees. Kaminsky consented to their entry after they said, "can we come in?" Emphasis in "we," which means more than one. The officers who entered the house did so at plaintiff's invitation. Now, as it happens, plaintiff was not actually a convicted felon. His conviction from 1964 was not a felony at the time. But, the Court says, that is no reason to find the police violated the Fourth Amendment in entering the house, as it provides no basis to believe that plaintiff's consent for the police to enter was coerced.
So what about the officers who did not enter the house? Plaintiff sues them as well, claiming they were present on the curtilage and their mere presence violated the Constitution. This claim also fails under qualified immunity. Even if the area was curtilage, the officers reasonably believed the area in which they waited was not curtilage. The opinion is not clear as to why this is so, but in the statement of fact, the court notes the officers were standing near a public lake. While more recent Supreme Court cases may call the district court's analysis on the curtilage issue into question, under qualified immunity principles, we look at the law as it existed at the time of the alleged constitutional violation. As the officers are not expected to anticipate those developments, they did not knowingly violate clearly-established law. The case is dismissed.
Monday, February 4, 2019
Court of Appeals reinstates claim that detectives falsified evidence in homicide case
This complicated Section 1983 case alleges that New York City detectives fabricated evidence that resulted in a murder conviction (for which the defendant was eventually exonerated halfway through his sentence when the police determined that someone else committed the homicide). The Court of Appeals reinstates the lawsuit, finding a jury may conclude the detectives did in fact falsify evidence, and that other prosecutorial misconduct denied the plaintiff a fair trial.
The case is Bellamy v. City of New York, issued on January 29. The victim was stabbed outside a grocery store in Queens. Bellamy was picked up for the killing, and the detectives produced two pieces of evidence at the criminal trial that implicated Bellamy: (1) an admission from Bellamy that this was a case of mistaken identity and that someone must have falsely accused him of murder and (2) an eye-witness statement that says Bellamy got into a fight with the victim on the day of the murder. The first evidentiary submission was significant because no one said anything to Bellamy about a murder when he allegedly blurted out that he did not kill anyone. The second evidentiary submission is significant because eyewitness statements like this are always useful for the prosecution.
We have an issue of fact for the jury in Bellamy's civil rights case on these alleged evidentiary fabrications. Bellamy swears he never made that admission, and the woman who purportedly made that eyewitness statement swears she never said it, either. This kind of he-said she-said factual dispute will get you a trial in the typical Section 1983 case, and it gets Bellamy a trial in this case, even though it involves a homicide. While the district court said Bellamy's denial was self-serving and not substantiated by any direct evidence, the law is that "self-serving" but sworn testimony is enough to create a factual dispute so long as the testimony is not contradictory and incomplete. The case for that proposition is Rentas v. Ruffin, 816 F.3d 214 (2d Cir. 2016).
The Court (Walker and Shea [D.J.], over Judge Jacobs' dissent) also reinstates Bellamy's civil case against the detectives because he adequately alleges the police withheld evidence that would have helped Bellamy's criminal defense. While the victim was killed on a Saturday, one eyewitness told the detectives that she saw Bellamy on a Sunday, when he was trying to buy beer before noon (you could not buy beer on Sunday mornings). The detectives did not turn over this statement to the prosecution. While the detectives claim this witness said no such thing, the witness herself said that she did. As Bellamy's guilt was a close call, this factual dispute could have a made a difference at the criminal trial. The jury in Bellamy's Section 1983 case must determine if the detectives failed to turn over this exculpatory evidence.
We have other allegations that a jury must also consider in determining if the detectives failed to turn over relevant evidence. Bellamy has evidence that one eyewitness said Bellamy was with someone else, Lee, on the day of the killing. That witness denies making that statement. This is relevant because there was no suspicion that Lee had anything to do with the murder. This is a close question, but it goes to the jury.
Finally, Bellamy has a Monell claim against the City, claiming municipal liability over its policy of failing to disclose the relocation benefits that one eyewitness would receive if he testified at the criminal trial. A Monell claim also arises from the prosecutor's improper summation. The Court holds that the actions of county prosecutors in New York are generally controlled by municipal policymakers for purposes of Monell, which says you cannot sue sue a municipality unless a municipal policy led to the violation of your constitutional rights. So what happened here was the result of municipal and not state policy, even though the DA's office says that alleged DA "misconduct" is a state function. As for non disclosing the relocation benefits, the jury could find the eyewitness was promised relocation and related benefits in return for testifying. These benefits were sufficiently lucrative for the witness that the jury could have taken them into account in assessing the witness's credibility. As for the ADA's summation, Monell liability may attach because the ADA was not disciplined by his superiors for telling the jury that he personally knew who committed the murder. The ADA also said that Bellamy was not going to get away with the murder, "not this time." This suggests Bellamy has killed others and gotten away with it. This and other problems with the summation fuel Bellamy's Monell claim, particularly since the trial evidence did not exactly point to Bellamy's guilt, and the DA's office had major misgivings about the quality of its case in any event.
The case is Bellamy v. City of New York, issued on January 29. The victim was stabbed outside a grocery store in Queens. Bellamy was picked up for the killing, and the detectives produced two pieces of evidence at the criminal trial that implicated Bellamy: (1) an admission from Bellamy that this was a case of mistaken identity and that someone must have falsely accused him of murder and (2) an eye-witness statement that says Bellamy got into a fight with the victim on the day of the murder. The first evidentiary submission was significant because no one said anything to Bellamy about a murder when he allegedly blurted out that he did not kill anyone. The second evidentiary submission is significant because eyewitness statements like this are always useful for the prosecution.
We have an issue of fact for the jury in Bellamy's civil rights case on these alleged evidentiary fabrications. Bellamy swears he never made that admission, and the woman who purportedly made that eyewitness statement swears she never said it, either. This kind of he-said she-said factual dispute will get you a trial in the typical Section 1983 case, and it gets Bellamy a trial in this case, even though it involves a homicide. While the district court said Bellamy's denial was self-serving and not substantiated by any direct evidence, the law is that "self-serving" but sworn testimony is enough to create a factual dispute so long as the testimony is not contradictory and incomplete. The case for that proposition is Rentas v. Ruffin, 816 F.3d 214 (2d Cir. 2016).
The Court (Walker and Shea [D.J.], over Judge Jacobs' dissent) also reinstates Bellamy's civil case against the detectives because he adequately alleges the police withheld evidence that would have helped Bellamy's criminal defense. While the victim was killed on a Saturday, one eyewitness told the detectives that she saw Bellamy on a Sunday, when he was trying to buy beer before noon (you could not buy beer on Sunday mornings). The detectives did not turn over this statement to the prosecution. While the detectives claim this witness said no such thing, the witness herself said that she did. As Bellamy's guilt was a close call, this factual dispute could have a made a difference at the criminal trial. The jury in Bellamy's Section 1983 case must determine if the detectives failed to turn over this exculpatory evidence.
We have other allegations that a jury must also consider in determining if the detectives failed to turn over relevant evidence. Bellamy has evidence that one eyewitness said Bellamy was with someone else, Lee, on the day of the killing. That witness denies making that statement. This is relevant because there was no suspicion that Lee had anything to do with the murder. This is a close question, but it goes to the jury.
Finally, Bellamy has a Monell claim against the City, claiming municipal liability over its policy of failing to disclose the relocation benefits that one eyewitness would receive if he testified at the criminal trial. A Monell claim also arises from the prosecutor's improper summation. The Court holds that the actions of county prosecutors in New York are generally controlled by municipal policymakers for purposes of Monell, which says you cannot sue sue a municipality unless a municipal policy led to the violation of your constitutional rights. So what happened here was the result of municipal and not state policy, even though the DA's office says that alleged DA "misconduct" is a state function. As for non disclosing the relocation benefits, the jury could find the eyewitness was promised relocation and related benefits in return for testifying. These benefits were sufficiently lucrative for the witness that the jury could have taken them into account in assessing the witness's credibility. As for the ADA's summation, Monell liability may attach because the ADA was not disciplined by his superiors for telling the jury that he personally knew who committed the murder. The ADA also said that Bellamy was not going to get away with the murder, "not this time." This suggests Bellamy has killed others and gotten away with it. This and other problems with the summation fuel Bellamy's Monell claim, particularly since the trial evidence did not exactly point to Bellamy's guilt, and the DA's office had major misgivings about the quality of its case in any event.
Thursday, January 31, 2019
The conservative Justices want to take up a teacher/coach speech issue
Some Justices on the Supreme Court periodically signal to the legal community what legal issues they want to take up. They sometimes do this by issuing a brief ruling in connection with the denial of certiorari, announcing that while the Court is not taking this particular case, it remains open to hearing that issue in another case that would present a more appropriate vehicle for that issue. This time, the issue involves the speech rights of public employees.
The case is Kennedy v. Bremerton School District, issued on January 22. The Court as a whole decided not to hear the case. But Justices Alito, Thomas, Gorsuch and Kavanagh issued a statement in connection with the denial of certiorari. These Justices want to hear this issue. The plaintiff says he lost his job as a football coach at a public high school because he prayed on the field following a football game in front of the audience. The superintendent of schools said the public prayer ritual would lead a reasonable observer to think the district was endorsing religion, which would violate the Establishment Clause of the First Amendment, which requires the separation of church and state. Kennedy argued the termination of his employment actually violated the free speech clause of the First Amendment.
So we have competing clauses in the First Amendment at stake here. The Court did not take on this case, Alito says, because the issues are too fact-specific, and the lower courts can resolve those issues before the Supreme Court takes on the case.
Alito says this case raises an important issue because it implicates the Court's decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds a public employee does not have speech rights if his speech was uttered pursuant to his official job duties. "According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report to work to the moment they depart, provided they are within the eyesight of students." Under this interpretation, teachers cannot even bow in prayer during a lunch break if students can see them. Alito is also concerned that the Ninth Circuit's ruling can be understood to mean that "a coach's duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith -- even when the coach is plainly not on duty." He adds, "The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable."
The case is Kennedy v. Bremerton School District, issued on January 22. The Court as a whole decided not to hear the case. But Justices Alito, Thomas, Gorsuch and Kavanagh issued a statement in connection with the denial of certiorari. These Justices want to hear this issue. The plaintiff says he lost his job as a football coach at a public high school because he prayed on the field following a football game in front of the audience. The superintendent of schools said the public prayer ritual would lead a reasonable observer to think the district was endorsing religion, which would violate the Establishment Clause of the First Amendment, which requires the separation of church and state. Kennedy argued the termination of his employment actually violated the free speech clause of the First Amendment.
So we have competing clauses in the First Amendment at stake here. The Court did not take on this case, Alito says, because the issues are too fact-specific, and the lower courts can resolve those issues before the Supreme Court takes on the case.
Alito says this case raises an important issue because it implicates the Court's decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds a public employee does not have speech rights if his speech was uttered pursuant to his official job duties. "According to the Ninth Circuit, public school teachers and coaches may be fired if they engage in any expression that the school does not like while they are on duty, and the Ninth Circuit appears to regard teachers and coaches as being on duty at all times from the moment they report to work to the moment they depart, provided they are within the eyesight of students." Under this interpretation, teachers cannot even bow in prayer during a lunch break if students can see them. Alito is also concerned that the Ninth Circuit's ruling can be understood to mean that "a coach's duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith -- even when the coach is plainly not on duty." He adds, "The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable."
Wednesday, January 30, 2019
The agony of defeat (or, use a cell phone to take incriminating pictures)
The first day of trial and the last day of trial are two different events. On day one, possibilities abound. We might win the case. On the last day, especially when the jury is deliberating, our anxieties get the best of us, and when the deputy clerks knocks on the door to advise the jury had reached a verdict, your heart beats through your chest. The day of reckoning has arrived. And there is nothing worse than losing.
The case is Hollins v. City of New York, a summary order issued on January 25. Plaintiff alleges that city police officers subjected her to excessive force. It all started when plaintiff's family began arguing and someone called the police. The parties had conflicting accounts. The police say plaintiff shouted profanities at the officers and lunged at her brother before she ran down the street and punched an officer in the face when they caught up with her. Plaintiff, on the other hand, says she tried to cooperate with the police from the outset, never lunged at anyone and that when she ran away, the police beat the hell out of her when they caught up with her, sending her to the hospital.
The jury ruled for the officers, determining plaintiff did not prove her case by a preponderance of the evidence. Like I said, this is devastating for the plaintiff. On appeal, plaintiff argues the jury should have credited her story and found she was falsely arrested for disorderly conduct and excessive force. But these issues are truly for the jury. The Court of Appeals will not second-guess the jury's findings, except in rare circumstances. On the false arrest claim, the Court (Katzmann, Hall and Lynch) says:
What about the excessive force claim? Same analysis. "There is no dispute that the defendants used excessive force in Hollins’s version of the arrest but did not in the officers’ version. Hollins first argues that she was credible and the officers were not. But we may not weigh the credibility of witnesses in reviewing a district court’s denial of a new trial under Rule 59." Now, plaintiff points to photographs her boyfriend took of her injuries. That can be good evidence, if they are taken right away. But these pictures were not developed until June 18, 2013, more than a month after the arrest. "As defendants argued in closing, it was possible that the pictures were taken later, and the injuries were a result of some other argument. Given this conflicting evidence, we cannot say that the district court abused its discretion in denying Hollins a new trial." This begs the question. Didn't the boyfriend have a cell phone (which would show the pictures were taken right away)? Why were the pictures developed more than a month after the incident? Who develops film anymore?
The case is Hollins v. City of New York, a summary order issued on January 25. Plaintiff alleges that city police officers subjected her to excessive force. It all started when plaintiff's family began arguing and someone called the police. The parties had conflicting accounts. The police say plaintiff shouted profanities at the officers and lunged at her brother before she ran down the street and punched an officer in the face when they caught up with her. Plaintiff, on the other hand, says she tried to cooperate with the police from the outset, never lunged at anyone and that when she ran away, the police beat the hell out of her when they caught up with her, sending her to the hospital.
The jury ruled for the officers, determining plaintiff did not prove her case by a preponderance of the evidence. Like I said, this is devastating for the plaintiff. On appeal, plaintiff argues the jury should have credited her story and found she was falsely arrested for disorderly conduct and excessive force. But these issues are truly for the jury. The Court of Appeals will not second-guess the jury's findings, except in rare circumstances. On the false arrest claim, the Court (Katzmann, Hall and Lynch) says:
According to the defendants’ testimony at trial, Hollins was loudly screaming profanities for several minutes around 10:00 p.m. on the street of a residential neighborhood. Neighbors were watching the scene unfold. And Hollins’s anger was originally directed at her brother, whom she tried to attack, “supporting the inference that the disruptive behavior would continue and perhaps escalate absent interruption by the police.” A reasonable jury could therefore find that the police had probable cause. The district court therefore did not abuse its discretion by denying the motion for a new trial on Hollins’s false arrest claim.
What about the excessive force claim? Same analysis. "There is no dispute that the defendants used excessive force in Hollins’s version of the arrest but did not in the officers’ version. Hollins first argues that she was credible and the officers were not. But we may not weigh the credibility of witnesses in reviewing a district court’s denial of a new trial under Rule 59." Now, plaintiff points to photographs her boyfriend took of her injuries. That can be good evidence, if they are taken right away. But these pictures were not developed until June 18, 2013, more than a month after the arrest. "As defendants argued in closing, it was possible that the pictures were taken later, and the injuries were a result of some other argument. Given this conflicting evidence, we cannot say that the district court abused its discretion in denying Hollins a new trial." This begs the question. Didn't the boyfriend have a cell phone (which would show the pictures were taken right away)? Why were the pictures developed more than a month after the incident? Who develops film anymore?
Tuesday, January 29, 2019
Good faith exception under Fourth Amendment upholds child pornography conviction
I know that judges on the Court of Appeals try to decide cases without sympathy or hatred for the litigants, but it cannot be denied that the judges in resolving sex offender cases know they are sitting in judgment of someone with a record of accessing child pornography. In this case, the Court upholds the search of a man who was arrested for possessing child pornography, involving the "good faith" exception under the Fourth Amendment.
The case is United States v. Boles, decided on January 25. The FBI learned about a website that featured child pornography. The FBI operated an undercover operation to snare people who accessed the website. The FBI saw that defendant accessed the website in September 2010, but nearly a year later the FBI applied for a search warrant even though they worried the application might be stale, "but it's worth seeing if the AUSA will go for it." The judge signed the warrant, the FBI found child pornography on the defendant's computers, he was found guilty, and now he claims the warrant violated the Fourth Amendment.
Even child pornography defendants have rights. The Court of Appeals (Chin, Wesley and Carney) notes the probable cause issue is a close one, but the Court does not resolve that question because it can uphold the conviction under the good-faith exception to the Fourth Amendment, an exception to the requirement that the police have a valid warrant to conduct a search. The Court says the officers were able to execute the warrant because a federal judge signed off on it.
Defendant also loses the appeal because "the representations in the affidavit here were not intentionally false, reckless, or grossly negligent such as to otherwise preclude the good faith exception." While the officers did wonder if the search warrant application might be stale because of the passage of time, "there was nothing inappropriate in their leaving the issue to the prosecutor and court to resolve. As this Court has repeatedly recognized, there is 'no bright‐line rule for staleness,' which depends 'on the basis of the facts of each case.'" "Even assuming the information was stale, the agents disclosed the information to a neutral and detached judge, who was made aware of the 'staleness issue' and the relevant facts and circumstances, but nevertheless issued the warrant. The agents cannot be said to have acted in bad faith by asking a judge to decide the question of staleness."
The case is United States v. Boles, decided on January 25. The FBI learned about a website that featured child pornography. The FBI operated an undercover operation to snare people who accessed the website. The FBI saw that defendant accessed the website in September 2010, but nearly a year later the FBI applied for a search warrant even though they worried the application might be stale, "but it's worth seeing if the AUSA will go for it." The judge signed the warrant, the FBI found child pornography on the defendant's computers, he was found guilty, and now he claims the warrant violated the Fourth Amendment.
Even child pornography defendants have rights. The Court of Appeals (Chin, Wesley and Carney) notes the probable cause issue is a close one, but the Court does not resolve that question because it can uphold the conviction under the good-faith exception to the Fourth Amendment, an exception to the requirement that the police have a valid warrant to conduct a search. The Court says the officers were able to execute the warrant because a federal judge signed off on it.
the district court made an independent determination that the warrant was supported by probable cause, which it based primarily on: (1) Bolesʹs membership in Girls.Forumcircle.com and his postings of child erotica; (2) Bolesʹs visit to the FBI Undercover website using the unique code that was emailed to him; and (3) Bolesʹs prior conviction for possession of child pornography. Even assuming that these facts did not add up to probable cause, the existence of probable cause in this case is an exceedingly close question. Accordingly, the courtʹs finding of probable cause was not facially insufficient such that any reliance upon the warrant would be unreasonable.
Defendant also loses the appeal because "the representations in the affidavit here were not intentionally false, reckless, or grossly negligent such as to otherwise preclude the good faith exception." While the officers did wonder if the search warrant application might be stale because of the passage of time, "there was nothing inappropriate in their leaving the issue to the prosecutor and court to resolve. As this Court has repeatedly recognized, there is 'no bright‐line rule for staleness,' which depends 'on the basis of the facts of each case.'" "Even assuming the information was stale, the agents disclosed the information to a neutral and detached judge, who was made aware of the 'staleness issue' and the relevant facts and circumstances, but nevertheless issued the warrant. The agents cannot be said to have acted in bad faith by asking a judge to decide the question of staleness."
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