Articles Posted in Constitutional Law

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Two men robbed a store. The security video shows that one pointed a shotgun at the clerk. The gunman wore a black sweatshirt with a white skeleton pattern that zipped to form a skull hood. The gunman’s exposed hands appeared black to the clerk and on the video. The accomplice took cash. The men fled. Weeks later, officers visited Bailey’s mother. She showed the detectives Bailey's bedroom. They saw a skeleton hoodie and prepared an affidavit for a search warrant, noting that they had received an anonymous tip that Bailey, an African-American, had committed the robbery. A judge approved the warrant. Detectives seized the sweatshirt. Officers arrested Bailey after he fled. Bailey was indicted for armed robbery, possession of a short-barreled shotgun, and resisting arrest. The prosecutor dropped two charges; Bailey pleaded guilty to resisting. Bailey sued, under 42 U.S.C. 1983, claiming violations of his Fourth Amendment rights, citing inconsistencies in the description. The district court denied motions to dismiss, based on purported falsehoods in the affidavit. The Sixth Circuit reversed. The warrant did not say whether the description came from the victim or the video and mentioned both sources; it was not deliberately false. There were few disparities between the video and the warrant description. Even if the warrant were stripped of possible falsities, a fair probability remained that the officers would find evidence of the robbery in Bailey’s home; his Fourth Amendment claim and his Monell claim against the city fail as a matter of law. View "Bailey v. City of Ann Arbor" on Justia Law

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An unidentified individual alleged that Doe had engaged in nonconsensual sexual activities with a female University of Kentucky student. After an investigation, a Hearing Panel found that Doe had violated the Code of Student Conduct and assessed a one-year suspension. The University Appeals Board (UAB), reversed, finding violations of Doe’s due process rights and the Code of Student Conduct because Simpson, Director of the Office of Student Conduct, withheld critical evidence and witness questions from the Panel. After a second hearing, the Panel again found Doe had violated the policy. The UAB reversed, finding due process errors, including improper partitioning of Doe and his advisors from the student, denying Doe the “supplemental proceeding” described in the Code, and ex parte communications between the student, Simpson, and the Panel. A third hearing was scheduled, but Doe sought an injunction, citing 42 U.S.C. 1983, and Title IX of the Education Amendments Act, 20 U.S.C. 1681. Defendants argued that any constitutional problems would be cured in the third hearing, with new procedures. The court granted Defendants’ request that the court abstain from providing injunctive relief under Younger and held that Simpson was entitled to qualified immunity. The Sixth Circuit affirmed the abstention decision, reversed as to Simpson, and instructed the court to stay the case pending completion of the University proceedings. View "Doe v. University of Kentucky" on Justia Law

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A state court in Kent County, Michigan, issued an arrest warrant for Riley, having found probable cause to believe that he had committed armed robbery of a local store. Days later, Riley purchased a cell phone serviced by AT&T. A member of Riley’s family gave that phone’s telephone number to Riley’s girlfriend, who disclosed the number to the U.S. Marshal Service Grand Rapids Apprehension Team. Deputy Bowman obtained a state court order, compelling AT&T to produce telecommunications records of Riley’s cell phone under federal electronic-surveillance laws, 18 U.S.C. 2703, 3123, 3124. The government used Riley’s GPS location data to learn that Riley was hiding out at the Airport Inn in Memphis, Tennessee and arrested him about seven hours later, only after inquiring of the front-desk clerk to ascertain Riley’s specific room number. The Sixth Circuit affirmed denial of a motion to suppress. The GPS tracking provided no greater insight into Riley’s whereabouts than what Riley exposed to public view as he traveled “along public thoroughfares” to the hotel lobby. Riley has no reasonable expectation of privacy against such tracking and the tracking did not amount to a Fourth Amendment search. View "United States v. Riley" on Justia Law

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Harkness was commissioned as a Navy Chaplain Corps officer in 1987, endorsed by a non-liturgical Christian church. Harkness left active duty in 1995 and took reserve status. In 2000, Harkness and other non-liturgical chaplains sued the Navy, alleging systemic denominational prejudice in its promotion procedures. That suit is still pending. In 2007, Harkness was denied promotion by a reserve officer promotion board. Harkness requested a special selection board (SSB). The petition was denied. Harkness filed suit in 2010, challenging (10 U.S.C. 14502(h)(1)) the SSB denial and the promotion procedures. The Sixth Circuit affirmed dismissal of the constitutional claim for failure to exhaust administrative remedies. In 2012, the Secretary convened an SSB to reconsider the 2007 decision. It did not select Harkness for promotion; Harkness unsuccessfully requested a second SSB. In 2013, Harkness was again denied promotion and unsuccessfully requested an SSB, alleging that procedures employed by promotion boards produced denominational preferences and challenging the delegation of governmental authority to chaplains serving on promotion boards without effective guarantees that the power would be exercised in a neutral, secular manner. In filing suit, Harkness added a First Amendment retaliation claim. The Sixth Circuit affirmed dismissal of all claims. the 2013 promotion board was not constitutionally infirm; the denial of Harkness’s 2013 SSB request was not arbitrary, capricious, or otherwise contrary to law under section 14502(h)(1). View "Harkness v. Secretary of Navy" on Justia Law

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Anita drove her son, Omar, to Lowe’s, to pick up his last paycheck. When the assistant manager approached, Omar “started talking a lot of gibberish” and eventually began throwing paint cans. Officers, responding to a 911 call, stopped Anita’s car. Omar was evasive but compliant. During the pat-down, officers discovered pills in a container, which they returned to Omar’s pocket after handcuffing him. Omar stated that he had not taken his medication, for a psychiatric condition, for weeks. Anita stated that Omar, who began ranting incoherently, was bipolar, that the pills were Seroquel, and that he had not taken his medication. At the jail, Omar would calm down periodically, then return to rambling, talking to himself, and engaging in strange behavior. Released without handcuffs to make a phone call, Omar threw an officer to the floor and began choking him. Officers rushed into the jail and pulled Omar into the restraint chair and noticed something wrong. Omar’s pulse was weak. They tried to resuscitate him and called the rescue squad. At the hospital, Omar was pronounced dead “as a result of a sudden cardiac event during a physical altercation in association with bipolar disease.” In Anita’s suit, alleging deliberate indifference, the court denied the officers qualified immunity. The Sixth Circuit reversed. There was no violation of a clearly established constitutional right. The officers did not act with recklessness that would permit them to be liable under Ohio law. View "Arrington-Bey v. City of Bedford Heights" on Justia Law

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Statute is not unconstitutionally vague for providing a stiffer penalty for receipt than for possession of child pornography A Kentucky Detective used Nordic Mule, a law enforcement software package, to search for IP addresses that had recently shared child pornography on the peer-to-peer file-sharing network eDonkey, then obtained a search warrant for Dunning’s residence, where police seized electronic devices, containing over 22,000 images and videos depicting the sexual exploitation of minors. Dunning moved for discovery, seeking the source code for the software that the detective relied on for the warrant. The government responded: The program … is part of the Child Rescue Coalition, which is a private non-profit organization. The source code and program are proprietary and are not in the possession of the United States. The court denied Dunning’s discovery motion and his motion to suppress evidence, which argued that the warrant application was not supported by probable cause because the detective used software of uncertain reliability and that he had a reasonable expectation of privacy in his computer files. Dunning then pled guilty under 18 U.S.C. 2252(a)(2) and was sentenced to 165 months’ imprisonment. The Sixth Circuit affirmed, rejecting arguments that the statute is unconstitutionally vague and that his sentence was unreasonable, and upholding denial of his motions. View "United States v. Dunning" on Justia Law

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Sixth Circuit upholds allowing jury questions in online extortion case. Using the pseudonym “Dr. Evil,” an extortionist demanded $1 million in Bitcoin in exchange for an encryption key to Mitt Romney’s unreleased tax returns, which he claimed to have stolen from an accounting firm. He posted an image of Mike Myers’s Dr. Evil, from an Austin Powers movie, in the accounting firm’s Franklin, Tennessee office lobby. Agents traced the scheme to Brown, who had not actually stolen Romney’s returns. With 12 convictions for wire fraud and extortion, Brown was given a four-year prison sentence, and ordered to pay restitution. The Sixth Circuit affirmed his conviction, rejecting arguments that the search warrant lacked probable cause and that Brown was prejudiced by the judge allowing questions from the jury. The affidavit offered “a fair probability” that Brown’s home would contain evidence of the crime. Understanding the evidence required the jury to grasp the Secret Service’s forensic analysis of thumb drives, online posts, and Brown’s computers, Bitcoin, fingerprint matching, and digital photo manipulation-- enough complexity for a court to believe that permitting questions might aid jurors. The court vacated the sentence. Brown’s statements to prosecutors did not significantly impede the investigation, to justify the obstruction of justice enhancement. View "United States v. Brown" on Justia Law

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Reporting regulatory violations “up the chain” to supervisory governmental employees can constitute speech on a matter of public concern, for purposes of First Amendment retaliation claim. Mayhew, a long-time employee of Smyrna’s wastewater-treatment plant, reported violations of state and federal requirements and voiced concerns about the hiring of a manager’s nephew without advertising the position. His reports went up the chain of command to government employees. Mayhew was terminated, allegedly because the plant manager no longer felt that he could work with him. The district court rejected his claim of First Amendment retaliation on summary judgment, reasoning that Mayhew’s speech did not involve matters of public concern. The Sixth Circuit reversed in part, stating that “constitutional protection for speech on matters of public concern is not premised on the communication of that speech to the public.” Nor must courts limit reports of wrongdoing to illegal acts; a public concern includes “any matter of political, social, or other concern to the community.” View "Mayhew v. Town of Smyrna" on Justia Law

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Damages-only action under 42 U.S.C. 1983 against county clerk who had refused to issue a marriage license to a same-sex couple is not moot. The Sixth Circuit reversed dismissal of such a case, noting: the Supreme Court’s 2015 holding that Kentucky’s definition of marriage as a union between one man and one woman violated the Fourteenth Amendment; the Kentucky Governor’s order that county clerks begin issuing marriage licenses to same-sex couples; a preliminary injunction in another case, prohibiting County Clerk Kim Davis from refusing to issue same-sex marriage licenses; and that the state has amended its marriage-license issuance process so that county clerks’ names and signatures no longer appear on marriage-license forms. The Sixth Circuit stated that “so long as the plaintiff has a cause of action for damages, a defendant’s change in conduct will not moot the case. Indeed where a claim for injunctive relief is moot, relief in the form of damages for a past constitutional violation is not affected.” View "Ermold v. Davis" on Justia Law

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Thomas’s apartment door opened to a breezeway that led to a parking lot. When two men broke through Destin’s door. Destin called 911 from his bedroom and spoke quietly to avoid drawing the burglars’ attention. The men forced their way into Destin’s room. A struggle ensued. Columbus officers responded. Officer Kaufman, the first to arrive, had been alerted that the caller was inside a bedroom, that multiple suspects were inside, and that there was yelling and crashing noises. The complex was in a high-crime area; Kaufman, expecting a gun might be involved, unholstered his weapon. As Kaufman approached the breezeway, two men exited Destin’s apartment and ran toward him. The first had a gun in his hand. Kaufman stopped about 40 feet from Destin’s door, shouted, and fired two shots at the person with the gun. The second suspect fled. Kaufman never administered aid to the wounded man, later saying that he considered it unsafe to do so with an active crime scene and that the suspect appeared to be dead. The person that Kaufman shot was Destin, who had disarmed a burglar before fleeing. Destin died. When the next officer arrived, Kaufman stated, “I think this was the homeowner.” The burglar that fled was captured, but refused to testify. The Sixth Circuit affirmed the summary judgment rejection of Destin’s estate’s claims under 42 U.S.C. 1983, alleging excessive force and deliberate indifference to serious medical needs. View "Thomas v. City of Columbus" on Justia Law