Context: Plaintiff has satisfied the first prong because she has alleged that Defendant Romero used excessive force against Saenz. As a pretrial detainee, Saenz had a Fourteenth Amendment Due Process right to be free from excessive force, and this right has been clearly established.

"It is clear ... that the Due Process Clause protects a pretrial detainee form the use of excessive force that amounts to punishment."

Graham v. Connor, 490 U.S. 386, 395 n.10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“It is clear ... that the Due Process Clause protects a pretrial detainee form the use of excessive force that amounts to punishment.”); see also Kingsley v. Hendrickson, — U.S. —, 135 S.Ct. 2466, 2471-72, 192 L.Ed.2d 416 (2015) (recognizing pretrial detainee’s Constitutional right to be from excessive force); Valencia v. Wiggins, 981 F.2d 1440, 1445 (5th Cir. 1993).

recognizing pretrial detainee's Constitutional right to be from excessive force


Context: Darr also argues that he is entitled to qualified immunity based on his contention that it is undisputed that (1) objectively valid reasons existed for his employment actions and (2) the employment actions were actually motivated, at least in part, by the" objectively valid reasons.

See Rioux, 520 F.3d at 1284-85 (extending qualified immunity to defendant because undisputed evidence showed that his decisions were motivated at least in part by lawful justifications); Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1296 (11th Cir.2000) (finding that defendant was entitled to qualified immunity when his actions were indisputably motivated by lawful considerations); see also Foy v. Holston, 94 F.3d 1528, 1535 (11th Cir.1996) (concluding that defendants were entitled to qualified immunity because the record showed indisputable and sufficient lawful motivations).


finding that defendant was entitled to qualified immunity when his actions were indisputably motivated by lawful considerations


Context: The preclusive effect of the exhaustion doctrine applies equally to cases where some, but not all, of a petitioner's issues were raised in the state forum. We have not adopted a per se rule that complete exhaustion of all claims in a so-called "mixed petition" is necessary before the exhausted issues qualify for consideration.

See Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978) (requiring exhaustion of all claims raised in habeas petitions in Fifth Circuit).

pro se petitioner's claim of conflict of interest considered by federal appellate court although nature of conflict not divulged to either state or federal district court

But see Brooks v. Hopper, 597 F.2d 57 (5th Cir. 1979) (pro se petitioner’s claim of conflict of interest considered by federal appellate court although nature of conflict not divulged to either state or federal district court).


Context: However, several district courts have held otherwise, i.e., that the "exceptional reasons" provision of SS 3145(c) is only available to the appellate courts.

"we will not consider Nesser's 'exceptional reasons' argument for bail ..., finding that Congress reserved this task for the court of appeals."

See U.S. v. Nesser, 937 F.Supp. 507, 509 (W.D.Pa.1996) (Cindrich, J.) (“we will not consider Nesser’s ‘exceptional reasons’ argument for bail ..., finding that Congress reserved this task for the court of appeals.”); U.S. v. Salome, 870 F.Supp. 648, 652 (W.D.Pa.1994) (Diamond, J.) (“the jurisdiction established by § 3145 is appellate jurisdiction”).

"Congress has mandated that the United States Courts of Appeals are the only courts with the jurisdiction to override a SS 3143(a

See also In re Sealed Case, 242 F.Supp.2d 489, 491 (E.D.Mich.2003) (Gadola, J.) (“Congress has mandated that the United States Courts of Appeals are the only courts with the jurisdiction to override a § 3143(a)(2) mandatory detention and order the release of a defendant because of exceptional reasons, pursuant to § 3145(c).”); cf. U.S. v. Bloomer, 791 F.Supp. 100, 102 (D.Vt.1992) (Billings, J.) (“we think that § 3145(c) by its very provisions applies exclusively to reviewing courts and not to courts which initially ordered release or detention”).


Context: We further note that when a penalty scheme set forth in a state statute is not susceptible to a narrowing construction, the California Supreme Court has considered whether the imposition of mandatory, ever-mounting penalties violates the due process clause of the state and federal constitutions in a particular case. The California Supreme Court has indicated that trial courts must make this constitutional assessment on a case-by-case basis.

conducting an "as applied" analysis to decide whether a statute authorizing a $1,000 per day penalty for violations of the Housing Code violated due process, and concluding that the trial court did not abuse its discretion in imposing a $663,000 penalty because it was not "im-permissibly disproportionate 'to the conduct' or to the defendants' 'net worth' "

See Kinney v. Vaccari, 27 Cal.3d 348, 353, 356, 165 Cal.Rptr. 787, 612 P.2d 877 (1980) (upholding a $36,000 penalty under section 789.3 of the California Civil Code because it was “proportioned to the landlord’s misconduct and necessary to achieve the penalty’s deterrent purposes”); see also City and County of San Francisco v. Sainez, 77 Cal.App.4th 1302, 1312-16, 92 Cal.Rptr.2d 418 (2000) (conducting an “as applied” analysis to decide whether a statute authorizing a $1,000 per day penalty for violations of the Housing Code violated due process, and concluding that the trial court did not abuse its discretion in imposing a $663,000 penalty because it was not “im-permissibly disproportionate ‘to the conduct’ or to the defendants’ ‘net worth’ ”).

upholding a $36,000 penalty under section 789.3 of the California Civil Code because it was "proportioned to the landlord's misconduct and necessary to achieve the penalty's deterrent purposes"


Context: A series of recent Federal Circuit decisions have noted the useful nature of extrinsic evidence like dictionaries, encyclopedias, and treatises in aiding judicial determinations of ordinary and customary meaning.

"Although technical treatises and dictionaries fall within the category of extrinsic evidence ... they are worthy of special note."

See, e.g., Texas Digital, 308 F.3d at 1202 (“dictionaries, encyclopedias and treatises are particularly useful resources to assist the court in determining” term meaning); Teleflex, 299 F.3d at 1325 (“[dictionaries, encyclopedias and treatises] may be the most meaningful sources of information to aid judges in better understanding both the technology and the terminology used by those skilled in the art to describe the technology”); CCS Fitness, 288 F.3d at 1366 (“Sensibly enough, ... dictionary definitions may establish a claim term’s ordinary meaning”); see also Vitronics, 90 F.3d at 1584 n. 6 (“Although technical treatises and dictionaries fall within the category of extrinsic evidence ... they are worthy of special note.”).

"dictionaries, encyclopedias and treatises are particularly useful resources to assist the court in determining" term meaning


"[dictionaries, encyclopedias and treatises] may be the most meaningful sources of information to aid judges in better understanding both the technology and the terminology used by those skilled in the art to describe the technology"


"Sensibly enough, ... dictionary definitions may establish a claim term's ordinary meaning"


Context: Moreover, once Kelly produced the .22 cartridges in response to Dixon's query about drugs, Dixon was permitted to pursue the question of the location of the gun under the public safety exception to Miranda's requirements.

See New York v. Quarles, 467 U.S. 649, 658-59, 104 S.Ct. 2626, 2633, 81 L.Ed.2d 550 (1984) (officers confronted with immediate necessity of ascertaining whereabouts of gun need not recite Miranda warnings before questioning suspect).

"[Cjonsiderations of safety to law enforcement officers and others nearby justify an officer's inquiry about the location of a gun without first advising a suspect of his Miranda rights."

See also United States v. Simpson, 974 F.2d 845, 847 (7th Cir.1992) (“[Cjonsiderations of safety to law enforcement officers and others nearby justify an officer’s inquiry about the location of a gun without first advising a suspect of his Miranda rights.”), cert. denied, — U.S. -, 113 S.Ct. 1326, 122 L.Ed.2d 711 (1993); Andersen v. Thieret, 903 F.2d 526, 531 (7th Cir.1990) (analyzing arrestee’s volunteered statement about weapons).


Context: Furthermore, this Court has held that Commerce is not required to correct a respondent's errors when erroneous data are reported and not timely corrected.

stating "[e]ven if Commerce possessed the personnel to identify errors Plaintiffs made in their data base within the statutory deadlines, Commerce would have no basis for deciding which portion of the submission was correct or erroneous."

See Sugiyama, 797 F. Supp. at 994 (stating “[e]ven if Commerce possessed the personnel to identify errors Plaintiffs made in their data base within the statutory deadlines, Commerce would have no basis for deciding which portion of the submission was correct or erroneous.”); Makita Corp. v. United States, 974 F. Supp. 770, 780 (Ct. Int’l Trade 1997); see also Acciai Speciali Terni S.p.A. v. United States, 142 F. Supp. 2d 969, 982 (Ct. Int’l Trade 2001) (“It is respondent’s obligation to supply Commerce with accurate information. * * * In general, Commerce is not required to correct a respondent’s errors when erroneous data [are] reported and not timely corrected.”) (internal quotations and citations omitted).

"It is respondent's obligation to supply Commerce with accurate information. * * * In general, Commerce is not required to correct a respondent's errors when erroneous data [are] reported and not timely corrected."


Context: The first two claims amount to little more than disagreeing with the weight that the sentencing judge afforded to certain aspects of the sentencing factors. This exercise, however, is peculiarly within the sentencing court's discretion, and Gallardo offers no meritorious reason to interfere with that judgment.

concluding that the district court's silence about a sentencing angle advocated by a party did not undercut the sentencing decision where the record "evinc[ed] a sufficient weighing of the section 3553(a) factors"

See Gall, 552 U.S. at 51-52, 128 S.Ct. 586 (noting that sentencing judge has a judicial vantage point superior to that of the reviewing appellate court); United States v. Madera-Ortiz, 637 F.3d 26, 31 (1st Cir.2011) (holding that “judgment calls” on the weight to be given various relevant factors “are for the sentencing court, not for this court”); see also Davila-Gonzalez, 595 F.3d at 49 (concluding that the district court’s silence about a sentencing angle advocated by a party did not undercut the sentencing decision where the record “evinc[ed] a sufficient weighing of the section 3553(a) factors”).


holding that "judgment calls" on the weight to be given various relevant factors "are for the sentencing court, not for this court"


Context: This is not always an easy task, because there are "inherent line-drawing problems associated with distinguishing among artwork with presumptively expressive content (such as [paintings, photographs, prints, and sculptures]), merchandise with potentially expressive content (such as 'the crafts of the jeweler, the potter and the silversmith'), and merchandise "with no expressive content."

holding that nonprofit corporations' sales of "T-shirts imprinted with various philosophical messages" were "within the ambit of the First Amendment"

Mastrovincenzo, 435 F.3d at 85 (quoting and citing Bery, 97 F.3d at 696). Moreover, some objects are otherwise utilitarian, but can become “inextricably intertwined” with “pure elements of speech” when they are sold to disseminate political, religious, or philosophical messages, Gaudiya, 952 F.2d at 1064-65 (holding that religious and political groups’ sale of merchandise and literature was fully protected); see also One World, 76 F.3d at 1011-12 (holding that nonprofit corporations’ sales of “T-shirts imprinted with various philosophical messages” were “within the ambit of the First Amendment”), or when they “serve a predominantly expressive purpose.”

holding that religious and political groups' sale of merchandise and literature was fully protected


Context: Under subsection (6), the first determination to be made is "the suitability or nonsuitability for adjudication and commitment of the child to the [Department." SS 985.433(6), Fla. Stat. (2016). This Court has recognized that subsection (6) gives wide discretion to the trial court in determining whether to commit a child to the Department and that the rigorous analysis in E.A.R. does not apply to this initial determination.

finding E.A.R. did not apply to the trial court's initial decision to reject probation in favor of commitment, but error occurred when the trial court committed the juvenile before obtaining the Department's recommendation as to the appropriate restrictiveness level

Cf. B.K.A. v. State, 122 So.3d 928, 930 (Fla. 1st DCA 2013) (finding E.A.R. did not apply to the trial court’s initial decision to reject probation in favor of commitment, but error occurred when the trial court committed the juvenile before obtaining the Department’s recommendation as to the appropriate restrictiveness level); A.L.M. v. State, 176 So.3d 1025 (Fla. 1st DCA 2015) (affirming the disposition order that adjudicated the juvenile delinquent and found probation not appropriate, but reversing the trial court’s nonsecure placement and remanding to first get a recommendation of a restrictiveness level from the Department before committing the juvenile).

holding the E.A.R. analysis did not apply to the trial court's initial determination made under section 985.433(6) to reject the Department's recommendation of probation in favor of commitment

J.B.S. v. State, 90 So.3d 961, 967 (Fla. 1st DCA 2012) (holding the E.A.R. analysis did not apply to the trial court’s initial determination made under section 985.433(6) to reject the Department’s recommendation of probation in favor of commitment); B.K.A. v. State, 122 So.3d 928, 930 (Fla. 1st DCA 2013) (“Probation is not a restrictiveness level because it is a limitation on the freedom of the child ⅛ lieu of commitment to the custody of the [Department.’ ”) (citing § 985.03(44), Fla. Stat.) (emphasis in original). Here, the trial court apparently advised the Department in advance that it intended to commit M.J. and requested an alternative commitment recommendation.


affirming the disposition order that adjudicated the juvenile delinquent and found probation not appropriate, but reversing the trial court's nonsecure placement and remanding to first get a recommendation of a restrictiveness level from the Department before committing the juvenile


"Probation is not a restrictiveness level because it is a limitation on the freedom of the child  1/8  lieu of commitment to the custody of the [Department.' "


Context: Liability under this legal theory is generally limited to unauthorized use in connection with the promotion or advertisement of a product or service and not, as is the case here, for use in a magazine story. This is true even if the article was arguably motivated by The Surfer's Journal's desire for profits or tangentially results in increased income.

"Entertainment is entitled to the same constitutional protection as the exposition of ideas."

See Restatement (Second) of Torts § 652C, cmt. d (1977) (“It is only when the publicity is given for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness. Thus a newspaper, although it is not a philanthropic institution, does not become liable under the rule stated in this Section to every person whose name or likeness it publishes.”); Daly v. Viacom, Inc., 238 F.Supp.2d 1118, 1122-23 (N.D.Cal.2002) (finding that the First Amendment protected use of the plaintiffs likeness in advertisements for a television show because the television show was an expressive work and the advertisements were an adjunct of the protected work and promoted the protected expression); see also Guglielmi v. Spelling-Goldberg Prods., 25 Cal.3d 860, 867, 160 Cal.Rptr. 352, 603 P.2d 454 (Cal.1979) (“Entertainment is entitled to the same constitutional protection as the exposition of ideas.”).


Context: Voluntary production of documents prior to a final judgment ordering their production does not allow the government to avoid a fee award.

"It is inconceivable ... that the recovery of attorneys' fees could be foreclosed whenever the government chooses to moot an action under the [FOIA] by supplying, during the pendency of the litigation, the material sought in the complaint."

See Church of Scientology, 700 F.2d at 491; Kaye v. Burns, 411 F.Supp. 897, 902 (S.D.N.Y.1976) (“It is inconceivable ... that the recovery of attorneys’ fees could be foreclosed whenever the government chooses to moot an action under the [FOIA] by supplying, during the pendency of the litigation, the material sought in the complaint.”); Vermont Low Income, 546 F.2d at 513 (“Congress clearly did not mean that where [a] FOIA suit had gone to trial and developments made it apparent that the judge was about to rule for the plaintiff, the Government could abort any award of attorney fees by an eleventh hour tender of the information requested.”); Cuneo v. Rumsfeld, 553 F.2d 1360, 1364-65 (D.C.Cir.1977) (surveying cases that held that a surrender of documents before final judicial action did not preclude a grant of fees); see also Cuneo, 553 F.2d at 1365 (“The case would never have reached the status it did if appellant had not doggedly pursued the matter.”); Exner, 443 F.Supp. at 1353 (plaintiffs “dogged determination” in a vigorous and hard-fought litigation, where the “government presented a very formidable opposition” and “[v]irtually everything the plaintiff attempted to do was vigorously opposed,” showed that the lawsuit was the cause of the production).

"The case would never have reached the status it did if appellant had not doggedly pursued the matter."


plaintiffs "dogged determination" in a vigorous and hard-fought litigation, where the "government presented a very formidable opposition" and "[v]irtually everything the plaintiff attempted to do was vigorously opposed," showed that the lawsuit was the cause of the production


"Congress clearly did not mean that where [a] FOIA suit had gone to trial and developments made it apparent that the judge was about to rule for the plaintiff, the Government could abort any award of attorney fees by an eleventh hour tender of the information requested."


surveying cases that held that a surrender of documents before final judicial action did not preclude a grant of fees


Context: This resolution of the facial conflict by recognizing reasonable spheres of respective applicability gives effect to each set of terms and gives the parties and the drafters of the documents credit for coherent thinking.

"Justice, common sense and the probable intention of the parties are guides to construction of a written instrument."

See Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 200 N.E.2d 248, 251 (1964) (“Justice, common sense and the probable intention of the parties are guides to construction of a written instrument.”); see also Fishman v. LaSalle Nat’l Bank, 247 F.3d 300, 302 (1st Cir. 2001) (stating, in interpreting a contract subject to Massachusetts law, that “[cjommon sense is as much a part of contract interpretation as is the dictionary or the arsenal of canons”). We accordingly hold the terms of the Non-Contravention Agreement entitled to apply on the facts of this case, without nullification by the Loan Agreement’s non-re-, course clause.

stating, in interpreting a contract subject to Massachusetts law, that "[cjommon sense is as much a part of contract interpretation as is the dictionary or the arsenal of canons"


Context: P 11 On appeal, we presume the trial court exercised its discretion by considering all the relevant factors to determine whether to forfeit the entire bond amount or only a portion thereof.

Cf. State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187 (1984); Quigley v. City Court, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App.1982) (difference in judicial opinion not synonymous with abuse of discretion).

See Fuentes v. Fuentes, 209 Ariz. 51, ¶ 32, 97 P.3d 876, 883 (App.2004) (appellate court presumes trial court knows law and applied correct standard unless presumption rebutted by record). And we do not re-weigh those factors to determine whether we would reach the same decision as the trial court.


Context: Defendants do not dispute that treatment for HCV is a serious medical need.

"It is well-established that Hepatitis C qualifies as a serious condition for purposes of an Eighth Amendment analysis."

See Pabon v. Wright, 2004 WL 628784, at *5 (S.D.N.Y. March 29, 2004) (“It is well-established that Hepatitis C qualifies as a serious condition for purposes of an Eighth Amendment analysis.”); Johnson v. Wright, 234 F.Supp.2d 352, 360 (S.D.N.Y.2002) (holding that HCV constitutes an objectively serious medical condition).

agreeing with district court's determination that although HCV infection was a serious medical need, the issue was whether inmate had serious medical need for immediate interferon treatment

Cf. Bender v. Regier, 385 F.3d 1133, 1137 (8th Cir.2004) (agreeing with district court’s determination that although HCV infection was a serious medical need, the issue was whether inmate had serious medical need for immediate interferon treatment).


Context: The government fails to respond to this argument. The Court's own research found that California courts recognize a duty may arise from a promise, if the defendant has reason to believe the plaintiff will rely on the promise to his detriment.

"It is well established that a person may become liable in tort for negligently failing to perform a voluntarily assumed undertaking even in the absence of a contract to do so."

See Aim Insurance Co. v. Culcasi, 229 Cal.App.3d 209, 215, 280 Cal.Rptr. 766 (1991); Bloomberg v. Interinsurance Exchange, 162 Cal.App.3d 571, 575-576 (1984) (Auto club’s undertaking to send a tow truck, upon which victim relied, resulted in a duty to act with care.); See also Valdez v. Taylor Auto. Co., 129 Cal.App.2d 810, 278 P.2d 91 (1954) (“It is well established that a person may become liable in tort for negligently failing to perform a voluntarily assumed undertaking even in the absence of a contract to do so.”). It was reasonable for Western to believe Quechan would rely on its repeated promises to avoid eligible sites and cause no additional impacts.

Auto club's undertaking to send a tow truck, upon which victim relied, resulted in a duty to act with care.


Context: These undisputed facts demonstrate that the District's sexual harassment policies and response to Harper's complaint were "both reasonable and vigorous."

employee's admitted knowledge of employer's policy prohibiting sexual harassment and complaint procedure and employer's prompt investigation of complaint showed that employer "exercised reasonable care to prevent and, if not prevented, to correct promptly any sexually harassing behavior by supervisory personnel"

Scrivner v. Socorro Indep. Sch. Dist, 169 F.3d 969, 971 (5th Cir.1999) (school district’s anti-discrimination policy, swift response to harassment complaints, and acceptance of harasser’s resignation was sufficient to establish first prong of affirmative defense); see also Casiano v. AT&T Corp., 213 F.3d 278, 286-87 (5th Cir.2000) (employee’s admitted knowledge of employer’s policy prohibiting sexual harassment and complaint procedure and employer’s prompt investigation of complaint showed that employer “exercised reasonable care to prevent and, if not prevented, to correct promptly any sexually harassing behavior by supervisory personnel”).

school district's anti-discrimination policy, swift response to harassment complaints, and acceptance of harasser's resignation was sufficient to establish first prong of affirmative defense


Context: On appeal, Noel seeks to challenge the denial of CAT relief and also argues that he is entitled to asylum as a matter of discretion based on being subjected to an atrocious form of persecution. We cannot address these arguments, however, because Noel failed to raise them with the BIA.

See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1) (requiring an alien to exhaust administrative remedies before seeking judicial review); Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1317 n. 13 (11th Cir.2001) (explaining that we lack jurisdiction to review an issue an alien fails to raise before the BIA); see also Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir.2006) (explaining that to properly raise an issue before the BIA, the alien must mention the issue in his brief and discuss its merits or the basis for the IJ’s decision).

explaining that to properly raise an issue before the BIA, the alien must mention the issue in his brief and discuss its merits or the basis for the IJ's decision


Context: Additionally, SBI simply does not assert that Department 710's physical environment permits different treatment of its employees based on their gender.

Title VII's bona fide occupational qualification exception is "extremely narrow"

See United States v. Gregory, 818 F.2d 1114, 1117-18 (4th Cir.1987) (citation omitted) (employer has burden to prove that gender-based distinction is “reasonably necessary to the normal operation of that particular business”); see also Dothard, 433 U.S. at 334, 97 S.Ct. 2720 (Title VII’s bona fide occupational qualification exception is “extremely narrow”).

employer has burden to prove that gender-based distinction is "reasonably necessary to the normal operation of that particular business"


Context: To adequately preserve an issue for appeal, the grounds on which the objection is made must be reasonably apparent to the trial court.

Blades v. DaFoe, 704 P.2d 317, 322, 323 (Colo.1985) (court considered plaintiffs' objections to peremptory challenges notwithstanding that they did not cite C.R.C.P. 47(h)); BS & C Enterprises, L.L.C. v. Barnett, 186 P.3d 128, 130 (Colo.App.2008) (court addressed defendant's argument regarding motion to set aside default judgment, even though he did not cite C.R.C.P. 55(b), concluding that his argument "sufficed to focus the trial court's attention on the correct issue"); see also Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1008 (Colo.2008) (although appellate courts generally do not address issues raised for the first time on appeal, court addressed unpreserved legal issue of contract construction where no material facts were in dispute).


court addressed defendant's argument regarding motion to set aside default judgment, even though he did not cite C.R.C.P. 55(b


Context: This court has been concerned with the opportunity for abuse presented when the sheriff or another "key man" exercises discretion in selecting bystander jurors to complete jury panels.

selection of bystander jurors by "interested" marshal under repealed federal statute

See Ross v. Wyrick, 581 F.2d 172, 174-75 (8th Cir.1978) (unconstitutional underrepresentation of blacks on master jury list was not cured, by sheriff’s personal selection of blacks as bystander jurors); cf. Cravens v. United States, 62 F.2d 261, 271 (8th Cir.1933) (selection of bystander jurors by “interested” marshal under repealed federal statute), cert, denied, 289 U.S. 733, 53 S.Ct. 594, 77 L.Ed. 1481 (1933).

unconstitutional underrepresentation of blacks on master jury list was not cured, by sheriff's personal selection of blacks as bystander jurors


Context: Here, Penn invokes the second cause of action articulated by the Mauck court, namely, that Kidder's comment constituted insulting words which tend to violence and to a breach of the peace. Kidder's comment, however, while a crude sexual remark, was neither a vituperative epithet nor traditional racial slur of the type which the Supreme Court of Appeals have held to be actionable under section 55-7-2.

See Mauck, 280 S.E.2d at 219; compare with Covey v. Fields, 177 W.Va. 481, 354 S.E.2d 413, 414 (1987) (holding that plaintiff “tendfed]” to make out a prima facie case under section 55-7-2 where “testimony was given to the effect that [defendant] had accused [plaintiff] of having ‘a yellow streak’ up his back ‘a foot wide’, and that [defendant] threatened to either pound or grind [plaintiffs] head into the sidewalk upon their next meeting ..., accused [plaintiff] of participating in homosexual and Oedipal dalliances, and attributed to him a canine lineage- ... [and] impugned [plaintiffs wife’s] chastity and virtue in a gross manner”); see also Cunningham v. Martin, 170 W.Va. 411, 294 S.E.2d 264, 266-67 (1982) (finding error in a jury instruction regarding section 55-7-2 where words were, overall, not vituperative epithets or racial slurs).

holding that plaintiff "tendfed]" to make out a prima facie case under section 55-7-2 where "testimony was given to the effect that [defendant] had accused [plaintiff] of having 'a yellow streak' up his back 'a foot wide', and that [defendant] threatened to either pound or grind [plaintiffs] head into the sidewalk upon their next meeting ..., accused [plaintiff] of participating in homosexual and Oedipal dalliances, and attributed to him a canine lineage- ... [and] impugned [plaintiffs wife's] chastity and virtue in a gross manner"


Context: Neither the AAA nor the ICDR is a governmental agency. The arbitrators are private actors, and their directives are not subject to the Due Process Clauses of the Constitution.

denying due process challenge to arbitral award because "private arbitrators are not state actors and, absent state action, there can be no violation of [the Fourteenth or Fifth Amendments]"

Porush v. Lemire, 6 F.Supp.2d 178, 186 (E.D.N.Y.1998)(denying due process challenge to arbitral award because “private arbitrators are not state actors and, absent state action, there can be no violation of [the Fourteenth or Fifth Amendments]”); See also, United States v. American Society of Composers, Authors and Publishers, 708 F.Supp. 95, 96-97 (S.D.N.Y.1989)(finding that a petitioner claiming that his due process rights were violated by an arbitration panel’s methods had “failed to demonstrate any state action which would trigger the applicability of the due process clause.”)

finding that a petitioner claiming that his due process rights were violated by an arbitration panel's methods had "failed to demonstrate any state action which would trigger the applicability of the due process clause."


Context: The Supreme Court never indicated, however, that the exercise of physical control over the defendant real property should be regarded as the sine qua non of a constitutionally cognizable seizure. To the contrary, the Supreme Court employed the term seizure more broadly to refer to governmental action that deprived claimant Good of significant property interests.

holding that, in the Fourth Amendment context, "[a] 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property"

See Good, 510 U.S. at 49, 114 S.Ct. at 498 (stating that “[t]he Government does not, and could not, dispute that the seizure of Good’s home and four-acre parcel deprived him of property interests protected by the Due Process Clause”); see also United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) (holding that, in the Fourth Amendment context, “[a] ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property”).

stating that "[t]he Government does not, and could not, dispute that the seizure of Good's home and four-acre parcel deprived him of property interests protected by the Due Process Clause"


Context: Absent a knowing, intelligent, and voluntary plea of guilty to a charged offense, nothing relieves the government of this obligation. At a minimum, where an accused's testimony is used as evidence that he committed a charged offense, the government must introduce some evidence coiToborative of the alleged offense before the fact finder is permitted to consider whether, in light of all the evidence, the government has proven an accused's guilt beyond a reasonable doubt.

presuming that in eases such as ours, where the government offers no evidence of guilt, the judge would enter a finding of not guilty prior to any possible testimony from the accused while affirming that, if an accused testifies, that testimony might become "evidence of guilt to add to the other evidence."

See United States v. Williams, 390 F.3d 1319, 1325-26 (11th Cir.2004); United States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir.2002); United States v. Burgos, 94 F.3d 849, 868 (4th Cir.1996) (“Thus, Burgos’s lying on the stand may have aided in establishing the fact that he was guilty.”) (emphasis added); Pleasant, 71 M.J. at 713; see also United States v. Zafiro, 945 F.2d 881, 888 (7th Cir.1991) (presuming that in eases such as ours, where the government offers no evidence of guilt, the judge would enter a finding of not guilty prior to any possible testimony from the accused while affirming that, if an accused testifies, that testimony might become “evidence of guilt to add to the other evidence.”) (emphasis added).

"Thus, Burgos's lying on the stand may have aided in establishing the fact that he was guilty."


Context: Unlike statutes that provide general remedies for unfair practice, fraud, and breach of contract, [the New York law] concerns the amount of the payment to which an insured is entitled. We believe that this provision is far more similar to the statute addressed in Metropolitan Life, and is precisely the type of statute that Congress intended to save from ERISA preemption.

See Metropolitan Life, 471 U.S. at 744, 105 S.Ct. at 2391 (finding no “contrary case authority suggesting that laws regulating the terms of insurance contracts should not be understood as laws that regulate insurance”); cf. American Progressive Life and Health Ins. Co. v. Corcoran, 715 F.2d 784, 786 (2d Cir.1983) (state regulation setting maximum commission that life insurance salesmen may earn saved from preemption).

finding no "contrary case authority suggesting that laws regulating the terms of insurance contracts should not be understood as laws that regulate insurance"


Context: Next, "[t]he plaintiff also must plead and prove, as an element of his case, that there existed no probable cause to support the underlying charge." The implication from Peals is that the causal inquiry and the lack of probable cause are separate, albeit related, inquiries.

See also Miller v. Mitchell, 598 F.3d 139, 154 (3d Cir.2010) (interpreting Hartman to require “that plaintiffs bringing retaliatory prosecution claims must allege and prove lack of probable cause as an element of causation ” and not as the entirety of the causation analysis (emphasis added)); see also Pellegrino v. U.S. Transp. Sec. Admin., No. 09-cv-5505, 2014 WL 3952936, at *4 (E.D.Pa. Aug. 12, 2014) (evaluating causation and lack of probable cause as distinct elements in claim for retaliatory inducement to prosecution); cf. Halsey v. Pfeiffer, 750 F.3d 273, 297-300 (3d Cir. 2014) (evaluating causation and lack of probable cause as distinct elements in claim for malicious prosecution brought against investigating police officers).

interpreting Hartman to require "that plaintiffs bringing retaliatory prosecution claims must allege and prove lack of probable cause as an element of causation " and not as the entirety of the causation analysis (emphasis added


evaluating causation and lack of probable cause as distinct elements in claim for retaliatory inducement to prosecution


Context: . The Supreme Court has consistently recognized public employees' rights under the First Amendment.

"For at least 15 years, it has been settled that a state cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression."

See City of San Diego v. Roe, 543 U.S. 77, 80, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) ("[A] government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment.”); see also Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ("For at least 15 years, it has been settled that a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.”).

"[A] government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment."


Context: The appellant's Article 15 punishment given on 29 March 1989 was the result of unrelated misconduct. This court has found that misconduct by an accused's absence without leave will restart the speedy trial clock, not just toll its running.

appellant's period of incarceration by foreign civil authorities was not accountable to the government

See also United States v. Smith, 5 M.J. 525 (N.C.M.R.1978), pet. denied, 5 M.J. 324 (C.M.A.1978) (appellant’s period of incarceration by foreign civil authorities was not accountable to the government).

But see United States v. Lilly, 22 M.J. 620 (N.M.C.M.R.1986) (unauthorized absence tolled the statute but did not reset the clock to zero).


Context: The Supreme Court has held that a state may place the burden of proving self-defense on the defendant, but only where such placement does not shift the prosecution's burden on any element of the crime. But because the law of the Virgin Islands specifically includes "unlawfulness" as an element of the crime of murder and provides that killing in self-defense is "lawful," shifting the burden of proof on this question implicates Smith's due process rights.

But see Smart v. Leeke, 873 F.2d 1558 (4th Cir. 1989) (en banc) (reading Martin to permit states to require the defendant to prove self-defense even where an element of the crime implies the absence of self-defense). In Martin, the Supreme Court rejected the contention that because under Ohio law any murder must be unlawful, a valid claim of self-defense would negate an element of the crime. 480 U.S. at 235. However, the Court specifically relied on state court interpretations of Ohio law, which did not include the absence of self-defense in the definition of unlawfulness. Id.

See Holloway v. McElroy, 632 F.2d 605, 619-36 (5th Cir. 1980) (because Georgia defines voluntary manslaughter to include element of unlawfulness, jury instructions which required the defendant to prove self-defense contravened due process), cert. denied, 451 U.S. 1028 (1981).


Context: The majority correctly states that a losing plaintiff cannot avoid or obstruct the preclusive effect of an administrative decision by failing to raise issues or defenses at either the administrative hearing or on appeal to the state court.

determining that Utah Construction's fairness standards were met "at all levels of the administrative process"

See Miller, 39 F.3d at 1038 (stating that preclusive effect may be given to an administrative decision where “the agency adjudication meets the requirements of due process, and de novo judicial review is available”) (emphasis added); see also Misischia, 60 F.3d 626 (determining that Utah Construction’s fairness standards were met “at all levels of the administrative process”).

stating that preclusive effect may be given to an administrative decision where "the agency adjudication meets the requirements of due process, and de novo judicial review is available"


Context: The instructions requested by the defendant; see footnote 7 of this opinion; were overbroad, not only because they included the "deprive" section of the statute, as described previously, but also because they unnecessarily addressed the definition of "appropriate" under SS 53a-118 (a) (4) (A), thus attaching apermanency element to the definition of "appropriate" that SS 53a-118 (a) (4) (B) does not require.

"As we stated previously, the defendant's intent permanently to deprive the associations of their property is not an essential element of the offense of larceny by embezzlement. Thus, there is no reasonable possibility that the trial court's refusal to instruct on it misled the jury."

See State v. Wieler, 35 Conn. App. 566, 580, 645 A.2d 1032 (1994) (“As we stated previously, the defendant’s intent permanently to deprive the associations of their property is not an essential element of the offense of larceny by embezzlement. Thus, there is no reasonable possibility that the trial court’s refusal to instruct on it misled the jury.”), aff'd, 233 Conn. 552, 660 A.2d 740 (1995) (per curiam); contra State v. Kurvin, 186 Conn. 555, 568, 442 A.2d 1327 (1982) (discussing permanency element with regard to “deprive” prong of larceny statute).

discussing permanency element with regard to "deprive" prong of larceny statute


Context: Wittje then asks us to explore the hypothetical situation where two former members of the Waffen SS were both naturalized in 1959. One of these men entered the country in 1950 while the other entered the country after the effective date of the INA. Wittje first notes that the determination of whether an immigrant has been lawfully admitted is based on the laws in place at the time an immigrant enters the country.

"The question of whether an alien was lawfully admitted is answered, not by the law at the time of naturalization, but by the law at the time of entry."

Fedorenko, 449 U.S. at 514, 101 S.Ct. 737; Tittjung, 235 F.3d at 339 (“[Ljawful admission is based on the circumstances as they existed at the time of initial entry.”); see also Dailide, 316 F.3d at 619 (“The question of whether an alien was lawfully admitted is answered, not by the law at the time of naturalization, but by the law at the time of entry.”). Because they arrived at different times, the two men in his hypothetical would be treated differently: the immigrant who entered the country in 1950 would be subject to denaturalization, while the immigrant who entered after the effective date of the INA would not.

"[Ljawful admission is based on the circumstances as they existed at the time of initial entry."


Context: That exception applies only to payments that satisfy preexisting obligations. Thus, a debtor may receive fair consideration if it makes a payment to a corporate insider in exchange for new value contemporaneously provided.

holding that an insolvent corporation's salary payments to a corporate officer did not lack fair consideration because there was "no evidence that [the] salary was either excessive or unreasonable, or that the corporation did not receive full value in return"

See Frank, 48 F.3d at 635 (holding that the exception for repayment of an insider’s antecedent debt did not apply to a debtor’s conveyance of two mortgages to a former officer, “regardless of whether she was a corporate insider, because each of her mortgages secured a contemporaneous advance of funds, not a pre-existing debt”); see also Cilco Cement Corp. v. White, 55 A.D.2d 668, 668, 390 N.Y.S.2d 178 (2d Dep’t 1976) (holding that an insolvent corporation’s salary payments to a corporate officer did not lack fair consideration because there was “no evidence that [the] salary was either excessive or unreasonable, or that the corporation did not receive full value in return”).

holding that the exception for repayment of an insider's antecedent debt did not apply to a debtor's conveyance of two mortgages to a former officer, "regardless of whether she was a corporate insider, because each of her mortgages secured a contemporaneous advance of funds, not a pre-existing debt"


Context: Moreover, as a specific example in the context of criminal intent, this court has indicated that the required criminal intent in carjacking cases is determined from the totality of the circumstances.

"We determine whether a defendant possesses the conditional intent necessary to support a carjacking conviction by considering the totality of the circumstances." (emphasis added

See United States v. Malone, 222 F.3d 1286, 1291 (10th Cir.2000) (“[I]t is necessary to look at the totality of the circumstances to determine whether the words and actions of the defendants sufficiently demonstrate a conditional intent to cause serious bodily harm.” (emphasis added)); see also United States v. Vallejos, 421 F.3d 1119, 1123 (10th Cir.2005) (“We determine whether a defendant possesses the conditional intent necessary to support a carjacking conviction by considering the totality of the circumstances.” (emphasis added) (internal quotation marks omitted)).

"[I]t is necessary to look at the totality of the circumstances to determine whether the words and actions of the defendants sufficiently demonstrate a conditional intent to cause serious bodily harm." (emphasis added


Context: (Russell Br. 47-48; North-ington Br. 20.) However, such conclusory allegations of spillover effect do not warrant reversal.

"Appellants' conclusory allegations of a spillover effect do not meet their burden for justifying a reversal."

Adams, 759 F.2d at 1113 (“Appellants’ conclusory allegations of a spillover effect do not meet their burden for justifying a reversal.”); see also United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981) (“Mere allegations of prejudice are not enough[,] and it is not sufficient simply to establish that severance would improve the defendant’s chance of acquittal.”). The Government presented the evidence of Savage’s intimidation and retaliation in a separate portion of the trial, and it was clear from the indictment and the evidence that only Savage was involved in that conduct.

"Mere allegations of prejudice are not enough[,] and it is not sufficient simply to establish that severance would improve the defendant's chance of acquittal."


Context: If so, then the suggestiveness of the identification procedures must be balanced against factors indicating that the in-court identification was independently reliable." As the trial judge in this case recognized, the photographic spread containing a black and white photograph of the defendant and color photographs of four other subjects was "imper-missibly suggestive."

photographic line-up composed of a color photograph of the defendant and black and white photographs of five other subjects held "irreparably suggestive"

O’Brien v. Wainwright, 738 F.2d 1139, 1140-41 (11th Cir.1984), cert. denied, 469 U.S. 1162, 105 S.Ct. 918, 83 L.Ed.2d 931 (1985) (photographic line-up composed of a color photograph of the defendant and black and white photographs of five other subjects held “irreparably suggestive”); Passman v. Blackburn, 652 F.2d 559, 570 (5th Cir.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1722, 72 L.Ed.2d 141 (1982) (photographic line-up composed of a color photograph of the defendant and black and white photographs of eleven other subjects held “impermissi-bly suggestive”).

"It is clear that the procedure of using a display composed of three typical black and white mug shots, a single color picture of each of the defendants with no police information similar to that on the mug shots and a color group photo in which both of the defendants appeared was suggestive"

See also United States v. Ayendes, 541 F.2d 601, 605 (6th Cir.1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 789, 50 L.Ed.2d 779 (1977) (“It is clear that the procedure of using a display composed of three typical black and white mug shots, a single color picture of each of the defendants with no police information similar to that on the mug shots and a color group photo in which both of the defendants appeared was suggestive”); Styers v. Smith, 659 F.2d 293, 297 (2nd Cir.1981) (“The dramatic difference between the color shots and the black and white mug shots, combined with the officer’s implication that [the witness] was expected to choose a couple of photos, was highly suggestive”).


"The dramatic difference between the color shots and the black and white mug shots, combined with the officer's implication that [the witness] was expected to choose a couple of photos, was highly suggestive"


photographic line-up composed of a color photograph of the defendant and black and white photographs of eleven other subjects held "impermissi-bly suggestive"


Context: Our decisions addressing whether West Virginia employees, injured while working outside of West Virginia, would benefit from West Virginia's workers' compensation laws are compatible with the results of this case.

the Workers' Compensation Act was not intended to deprive a West Virginia employee of protection based on the mere fortuity that the employee was injured in another state, and noting that it is well settled that "the legislature had the power to extend the benefits and privileges of the [Workers Compensation Act] to employers and employees outside the state"

See also Gooding v. Ott, 77 W.Va. 487, 490-91, 87 S.E. 862, 863 (1916), overruled, on other grounds, by Lester v. State Workmen’s Compensation Comm’r, 161 W.Va. 299, 242 S.E.2d 443 (1978) (the Workers’ Compensation Act was not intended to deprive a West Virginia employee of protection based on the mere fortuity that the employee was injured in another state, and noting that it is well settled that “the legislature had the power to extend the benefits and privileges of the [Workers Compensation Act] to employers and employees outside the state”) overruled on other grounds by Lester v. State Workmen’s Compensation Comm’r, 161 W.Va. 299, 242 S.E.2d 443 (1978).

"An employee employed by any person, firm, association or corporation, in carrying on any form of industry or business in this state, and who is not employed wholly without the state, is an employee protected by the provisions of our Workmen's Compensation Act, though his injuries or death be sustained while performing some of his duties in an adjoining state."

See Syllabus Point 1, Foughty v. Ott, 80 W.Va. 88, 92 S.E. 143 (1917) (“An employee employed by any person, firm, association or corporation, in carrying on any form of industry or business in this state, and who is not employed wholly without the state, is an employee protected by the provisions of our Workmen’s Compensation Act, though his injuries or death be sustained while performing some of his duties in an adjoining state.”); Syllabus, Fausnet v. State Workers’ Compensation Comm’r, 174 W.Va. 489, 327 S.E.2d 470 (1985) (a West Virginia resident who is injured in another state in the course of and resulting from his employment is enti- tied to seek benefits under our workers’ compensation scheme if the employment in the other state is temporary or transitory in nature within the meaning of W. Va.Code 23-2-1, 1a.


Context: Private prison lease agreements (like inmate suits) seem to have been more prevalent after SS 1983's enactment, see generally M. Mancini, One Dies, Get Another (1996), but we have found evidence that the common law provided mistreated prisoners in prison leasing States with remedies against mistreatment by those private lessors.

See, e. g., Dade Coal Co. v. Haslett, 83 Ga. 549, 550-551, 10 S. E. 435, 435-436 (1889) (convict can recover from contractor for injuries sustained while on lease to private company); Boswell v. Barnhart, 96 Ga. 521, 522-523, 23 S. E. 414, 415 (1895) (wife can recover from contractor for chain- gang-related death of husband); Dahlheim v. Lemon, 45 F. 225, 228-230 (1891) (contractor liable for convict injuries); Tillar v. Reynolds, 96 Ark. 358, 360-361, 365-366, 131 S. W. 969, 970, 971-972 (1910) (work farm owner liable for inmate beating death); Weigel v. Brown, 194 F. 652 (CA8 1912) (prison contractor liable for unlawful whipping); see also Edwards v. Pocahontas, 47 F. 268 (CC Va. 1891) (inmate can recover from municipal corporation for injuries caused by poor jail conditions); Hall v. O’Neil Turpentine Co., 56 Fla. 324, 47 So. 609 (1908) (private prison contractor and subcontractor liable to municipality for escaped prisoner under lease agreement); see generally Mancini, supra (discussing abuses of 19th-century private lease system).


private prison contractor and subcontractor liable to municipality for escaped prisoner under lease agreement


wife can recover from contractor for chain- gang-related death of husband


Context: In deciding whether to grant a motion to reopen to add a creditor, courts often look at whether the party affected by the reopening has been prejudiced in some way or whether the debtor was intentionally committing fraud. But when the purpose of the motion to reopen is to add an undisclosed asset, the most important consideration is the benefit to the creditors.

granting debtor's motion to reopen a Chapter 7 case to schedule undisclosed products liability claims, stating that the potential benefit to creditors appears to be the most important factor in the analysis

In re Rochester, 308 B.R. 596, 601 (Bankr.N.D.Ga.2004)(granting debtor’s motion to reopen a Chapter 7 case to schedule undisclosed products liability claims, stating that the potential benefit to creditors appears to be the most important factor in the analysis); In re Lewis, 273 B.R. 739, 747 (Bankr.N.D.Ga.2001)(grant- ing debtor’s motion to reopen to administer an undisclosed interest in a wrongful death action); See also Daniel, 205 B.R. 346 (Bankr.N.D.Ga.1997) (granting debt- or’s motion to reopen to add undisclosed personal injury claim); Cf. In re Dewberry, 266 B.R. 916, 921 (Bankr.S.D.Ga.2001) (granting debtor’s motion to reopen to add an age discrimination claim, stating that “the test for reopening to administer assets is simply whether the administrative expense and inconvenience outweighs the potential benefit to the estate” and “debt- or’s good faith is irrelevant”).

granting debt- or's motion to reopen to add undisclosed personal injury claim


granting debtor's motion to reopen to add an age discrimination claim, stating that "the test for reopening to administer assets is simply whether the administrative expense and inconvenience outweighs the potential benefit to the estate" and "debt- or's good faith is irrelevant"


grant- ing debtor's motion to reopen to administer an undisclosed interest in a wrongful death action


Context: This case is one of the "few instances" where death itself -- not distribution-- changes the value of property owned by the decedent.

"[I]n a few instances ... death does change the value of the property."

Ahmanson, 674 F.2d at 768 (“[I]n a few instances ... death does change the value of the property.”); see also Land, 303 F.2d at 172 (“It is only in the few cases where death alters value, as well as ownership, that it is necessary to determine whether the value at the time of death reflects the change caused by death____”). The majority resolves this case by relying on the familiar distinction between the estate tax (a tax on the passing of property) and the inheritance tax (a tax on the receipt of property by the decedent’s beneficiaries).

"It is only in the few cases where death alters value, as well as ownership, that it is necessary to determine whether the value at the time of death reflects the change caused by death____"


Context: The attorney who sent the letter, Mr. Evans, was hired by Navigators as Titan's defense attorney. (Doc. 43 Ex. 5 PP 1, 7.) As such, he was an agent of both Navigators and Titan.

"A lawyer is the agent of his client, and the rules of agency law generally apply to the attorney-client relationship."

Cohn v. Fisher, 167 Ariz. 219, 221, 805 P.2d 1040, 1042 (Ariz.App.1990) (“A lawyer is the agent of his client, and the rules of agency law generally apply to the attorney-client relationship.”); see also Parsons v. Cont’l Nat. Am. Grp., 113 Ariz. 223, 227, 550 P.2d 94, 98 (1976) (A lawyer retained by an insurer to defend an insured owes an undeviating and singular allegiance to the insured.).


Context: . While some courts have found that the relevant comparison under Sandin is between the specific deprivations imposed on the plaintiff and the deprivations imposed in the non-disciplinary confinement'area of prisons in the entire state, neither the Supreme Court in Sandin nor the Second Circuit has required such a basis of comparison, relying instead on a comparison between disciplinary and non-disciplinary confinement conditions within the plaintiff's institution.

comparing plaintiff's deprivations in SHU with those of the general prison population within the Hala-wa Correctional facility where plaintiff was housed when the challenged disciplinary confinement was imposed

See Sandin, supra, at 485, 115 S.Ct. 2293 (comparing plaintiff’s deprivations in SHU with those of the general prison population within the Hala-wa Correctional facility where plaintiff was housed when the challenged disciplinary confinement was imposed); Brooks, supra, at 48 (district court erred in not comparing conditions of disciplinary confinement with those of administrative confinement or the "prison at large"); Frazier, supra, at 317 (it is the inmate’s burden to show that the conditions of confinement in SHU are dramatically different from the basic conditions of his indeterminate sentence).

relevant comparison to "most restrictive confine ment found in any facility in entire state"

Contra Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir.1997) (relevant comparison to "most restrictive confine ment found in any facility in entire state”); McClary v. Kelly, 4 F.Supp.2d 195, 201 (W.D.N.Y. 1998) (relevant comparison to maximum security facilities in entire state).


Context: In another context, the Fifth Circuit has recognized the dilemma that a consumer faces in trying to enforce the provisions of TILA, under which Congress had intended to create "a system of 'private attorney generals' who will be able to aid the effective enforcement of the Act." So long as the action "vindicates congressional policy," the Sosa court concluded that it was within the trial court's discretion to award attorney's fees to the successful debtor.

criticizing Sosa for failing to follow the "American Rule" that attorney's fees are not ordinarily recoverable in the absence of statutory authorization

Sosa, 498 F.2d at 121; see also Purtle v. Eldridge Auto Sales, Inc., 91 F.3d 797, 800 (6th Cir.1996) (plaintiff in a TILA ease need not prove that he or she suffered actual monetary damages in order to recover the statutory damages and attorney’s fees); but see Rachbach v. Cogswell, 547 F.2d 502, 506 (10th Cir.1976) (criticizing Sosa for failing to follow the “American Rule” that attorney’s fees are not ordinarily recoverable in the absence of statutory authorization).

plaintiff in a TILA ease need not prove that he or she suffered actual monetary damages in order to recover the statutory damages and attorney's fees


Context: The Estate's argument is incorrect. Under SS 1983, the defendant commanders could have been held liable for setting off a chain of events that led to a violation of Escobedo's constitutional right to be free from excessive force, not for his death.

See Jones v. City of Chi, 856 F.2d 985, 992-93 (7th Cir.1988) (discussing the liability of supervisors in the context of violations of constitutional rights); see also Robertson v. Wegmann, 436 U.S. 584, 589-90, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978) (“As we noted ... one specific area not covered by federal law is that relating to the survival of civil rights actions under § 1983 upon the death of either the plaintiff or defendant.”) (citations and quotations omitted); McAllister v. Price, 615 F.3d 877, 882 (7th Cir.2010) (under the Fourth Amendment, the injury or death of an individual does not affect the substance of a § 1983 claim for excessive force, but rather is relevant as evidence of the reasonableness of the force).

"As we noted ... one specific area not covered by federal law is that relating to the survival of civil rights actions under SS 1983 upon the death of either the plaintiff or defendant."


under the Fourth Amendment, the injury or death of an individual does not affect the substance of a SS 1983 claim for excessive force, but rather is relevant as evidence of the reasonableness of the force


Context: Essex cannot show that any procedural error in the way the district court disposed of its claims against TME and Archer affected its substantial rights.

"[P]roce-dural error does not warrant reversal unless it affects the substantial rights of the parties."

See Fed. R.Civ.P. 61; 28 U.S.C. § 2111; United States v. Killough, 848 F.2d 1523, 1527 (11th Cir.1988) (noting that the party asserting error has the burden of proving that the error prejudiced its substantial rights); see also Jimenez v. Weinberger, 523 F.2d 689, 700 (7th Cir.1975) (“[P]roce-dural error does not warrant reversal unless it affects the substantial rights of the parties.”).


Context: Here, the evidence showed merely that the mother threw an empty plastic jug at the oldest child on one occasion and physically disciplined her on another occasion. There was no suggestion that the child required medical attention or that her physical, mental, or emotional health was significantly impaired.

holding that physical abuse to support dependency adjudication was not shown by evidence that mother pulled child's hair and father slapped child's face, leaving a mark that did not require medical attention

See In re W.P., 534 So.2d 905 (Fla. 2d DCA 1988) (holding that physical abuse to support dependency adjudication was not shown by evidence that mother pulled child’s hair and father slapped child’s face, leaving a mark that did not require medical attention); see also J.C. v. Dep’t of Children & Families, 773 So.2d 1220 (Fla. 4th DCA 2000) (holding that bruises inflicted with belt did not constitute excessive or abusive corporal discipline to support dependency).


Context: Thus, in each of the cases where the Supreme Court applied the automobile exception and upheld a warrantless search of a vehicle, the police first stopped and seized the vehicle either while an occupant was operating the vehicle on a highway, or while an occupant was inside the vehicle or near it and the vehicle was readily capable of being driven away by the occupant.

See Dyson, 527 U.S. at 466-67, 119 S.Ct. 2013; Labron, 518 U.S. at 939-40, 116 S.Ct. 2485; Carney, 471 U.S. at 388-93, 105 S.Ct. 2066; Thomas, 458 U.S. at 261, 102 S.Ct. 3079 ("[WJlhen police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrant, less search of the vehicle ...." (emphasis added)); Texas v. White, 423 U.S. 67, 67-68, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (per curiam); Chambers, 399 U.S. at 51-52, 90 S.Ct. 1975; Carroll, 267 U.S. at 162, 45 S.Ct. 280.

Cf. Coolidge v. New Hampshire, 403 U.S. 443, 478, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (holding warrantless search of vehicle was improper where car was not stopped on a highway but was parked at a residence with no occupants inside or near the vehicle and capable of being driven away by the turn of an ignition key).


Context: Because there is no indication in the record that the district court believed it lacked authority to grant a downward departure based on a "combination of factors," the district court's failure to depart on that basis sua sponte is not appealable.

reviewing for plain error the district court's failure to depart sua sponte on a ground that was barred by law at the time of sentencing

United States v. Garcia-Garcia, 927 F.2d 489 (9th Cir.1991) (failure to depart, when the record is silent on the issue of authority and sentence is imposed within the applicable guideline range, is not appealable); cf. United States v. Castillo-Casiano, 198 F.3d 787, 790 (9th Cir.1999), amended, 204 F.3d 1257 (9th Cir.2000) (reviewing for plain error the district court’s failure to depart sua sponte on a ground that was barred by law at the time of sentencing).


Context: Arneault seeks to make out a substantive due process claim by alleging that these state actors knowingly relied on tainted information for malicious purposes unrelated to their legitimate governmental responsibilities. However, "merely alleging an improper motive is insufficient" to establish conscience-shocking behavior, "even where the [alleged] motive is unrelated to the merits of the underlying decision."

addressing substantive due process claim in the zoning context and noting that application of the conscience-shocking standard "prevents us from being cast in the role of a 'zoning board of appeals.' "

Chainey v. Street, 523 F.3d 200, 220 (3d Cir. 2008) (addressing substantive due process claim in the zoning context and noting that application of the conscience-shocking standard “prevents us from being cast in the role of a ‘zoning board of appeals.’ ”) (citation omitted).

plaintiff failed to allege a substantive due process violation, despite claiming that defendant acted with "gross negligence"

See also Burns, 776 F.Supp.2d at 95 (plaintiff failed to allege a substantive due process violation, despite claiming that defendant acted with “gross negligence”).


Context: The BIA did not abuse its discretion by denying Mendoza-Barragan's second motion to reopen for reissuance, because the evidence in the record does not compel the conclusion that Mendoza-Barragan did not receive the BIA's prior order dismissing his appeal.

"[S]tatements in motions are not evidence and are therefore not entitled to evidentiary weight."

See Hernandez-Velasquez, 611 F.3d at 1078 (“[T]he BIA enjoys a rebuttable ‘presumption of mailing’ when it issues a decision accompanied by a properly addressed and dated cover letter ..., [which] may be rebutted by affidavits of nonreceipt....”); see also Singh v. INS, 213 F.3d 1050, 1054 n. 8 (9th Cir.2000) (“[S]tatements in motions are not evidence and are therefore not entitled to evidentiary weight.”).

"[T]he BIA enjoys a rebuttable 'presumption of mailing' when it issues a decision accompanied by a properly addressed and dated cover letter ..., [which] may be rebutted by affidavits of nonreceipt...."


Context: This, in turn, depends on "whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Because O'Reilly did not know that his statements were being recorded and because it is clear that he did not anticipate them being used in a criminal proceeding against Johnson, they are not testimonial, and the Confrontation Clause does not apply.

holding that an unwitting declarant's secretly recorded statements to a close friend were nontestimonial

See United States v. Johnson, 440 F.3d 832, 843 (6th Cir.2006) (holding that an unwitting declarant’s secretly recorded statements to a close friend were nontestimonial); see also United States v. Mooneyham, 473 F.3d 280, 286-87 (6th Cir.2007) (stating that co-defendant’s out-of-court statements to an undercover officer whose status was unknown to the declarant were nontestimonial); United States v. Watson, 525 F.3d 583, 589 (7th Cir.2008) (“[A] statement unwittingly made to a confidential informant and recorded by the government is not ‘testimonial’ for Confrontation Clause purposes.”); United States v. Hendricks, 395 F.3d 173, 182 n. 9, 184 (3d Cir.2005) (same); United States v. Saget, 377 F.3d 223, 229 (2d Cir.2004) (same).

stating that co-defendant's out-of-court statements to an undercover officer whose status was unknown to the declarant were nontestimonial


"[A] statement unwittingly made to a confidential informant and recorded by the government is not 'testimonial' for Confrontation Clause purposes."


Context: In short, all parts of the demonstration, both disputed and undisputed, were supported by facts in evidence. Detective Reynolds' testimony was based on his personal observations as well as his deductions. Given the State's evidence and the reasonable inferences that may be drawn from it, we find the demonstration was substantially similar to the actual event as theorized by the State.

upholding in-court demonstration using estimate of length of deceased wife's arms to show she could not have shot herself as husband claimed

See Valdez, 776 S.W.2d at 168-69 (upholding in-court demonstration of six disarming techniques by which a person might take police officer’s weapon when sufficient evidence supported inference that defendant was able to disarm officer and use his weapon to shoot him); Stembridge v. State, 94 Tex.Crim. 207, 250 S.W. 180, 181 (1928) (upholding demonstration in which State re-created how husband’s body was found in bed and wife was asked to demonstrate how she claimed to have shot husband in self-defense); see also United States v. Wanoskia, 800 F.2d 235, 238 (10th Cir.1986) (upholding in-court demonstration using estimate of length of deceased wife’s arms to show she could not have shot herself as husband claimed).

upholding in-court demonstration of six disarming techniques by which a person might take police officer's weapon when sufficient evidence supported inference that defendant was able to disarm officer and use his weapon to shoot him


upholding demonstration in which State re-created how husband's body was found in bed and wife was asked to demonstrate how she claimed to have shot husband in self-defense


Context: North Carolina law requires that the county commissioners of each county "provide for the register of deeds" in a "book, to be called Registration of Titles." See N.C. Gen.Stat. SS 43-13. Since conveyances of land, contracts and options to convey land, leases over three years, and mortgages and deeds of trusts are required to be recorded in the Registration of Titles book in order to be effective against lien creditors or purchasers for value, see N.C. Gen.Stat. SSSS 47-18, 47-20, the book establishes a chain of title on which purchasers can rely.

See Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1, 10 (1973) (purchaser charged with notice of all facts disclosed by an examination of the chain of title); see also Chrysler Credit Corp. v. Burton, 599 F.Supp. 1313, 1318 & n. 9 (M.D.N.C.1984) (“[P]ublic record concerning the status of land titles” is established by recording in the Registration of Titles as required by North Carolina General Statutes §§ 47-18 & 47-20). Moreover, the North Carolina courts have clarified that the purpose of these North Carolina recording provisions is to establish a “single reliable means for purchasers to determine the state of the title to real estate,” and to impute constructive notice only of “all duly recorded documents that a proper examination of the title would reveal.”

"[P]ublic record concerning the status of land titles" is established by recording in the Registration of Titles as required by North Carolina General Statutes SSSS 47-18 & 47-20


Context: Second, the "fruit of the poisonous tree" is an evidentiary doctrine that does not apply in civil matters.

"The 'fruit of the poisonous tree' doctrine does not apply to civil actions brought under SS 1983[.]"

See Hargroves v. City of New York, 411 Fed.Appx. 378, 384 (2d Cir.2011) (“The ‘fruit of the poisonous tree’ doctrine does not apply to civil actions brought under § 1983[.]”); see also Matthews v. City of New York, 889 F.Supp.2d 418, 433-34 (E.D.N.Y.2012) (“the Second Circuit has held ‘that the fruit of the poisonous tree doctrine may not be invoked to support a § 1983 civil action, because the doctrine ‘is an eviden-tiary rule that operates in the context of criminal procedure ... and as such has generally been held to apply only in criminal trials.’ ”) (citations omitted).

"the Second Circuit has held 'that the fruit of the poisonous tree doctrine may not be invoked to support a SS 1983 civil action, because the doctrine 'is an eviden-tiary rule that operates in the context of criminal procedure ... and as such has generally been held to apply only in criminal trials.' "


Context: Civil forfeiture and jeopardy tax assessments are relevant analogies here. Several cases have persuasively rejected claims that jeopardy assessments causing inability to hire counsel violate the Sixth Amendment.

rejecting claim that jeopardy assessment preventing retention of counsel necessarily violates Sixth Amendment and rejecting as "immaterial" for purposes of a due process claim any distinction between indigency and "government-imposed" indigency

See United States v. Brodson, 241 F.2d 107 (7th Cir.1957) (rejecting claim that jeopardy assessment preventing retention of counsel necessarily violates Sixth Amendment and rejecting as “immaterial” for purposes of a due process claim any distinction between indigency and “government-imposed” indigency); see also United States v. Marshall, 526 F.2d 1349 (9th Cir.1976) (rejecting any requirement that alternative funds for counsel be made available to a defendant whose assets were under a tax levy absent a showing of prosecutorial misconduct); United States v. Allied Stevedoring Corp., 138 F.Supp. 555 (S.D.N.Y.1956) (rejecting corporation’s claim that funds must be released from tax levy so that it could pay for chosen counsel, stating that counsel could be appointed if necessary). We similarly reject Caplin & Drysdale’s claim that the Sixth Amendment forbids forfeiture proceedings that render a defendant indigent.


rejecting corporation's claim that funds must be released from tax levy so that it could pay for chosen counsel, stating that counsel could be appointed if necessary


Context: P 16 Further, just as the federal statute in Austin did, SS 13-2314(G)(3) directly relates forfeiture to the commission of a crime by allowing forfeiture of "[a]ll proceeds traceable to an offense included in the definition of racketeering ... and all ... other property used or intended to be used in any manner or part to facilitate the commission of the offense." The legislature has thus demonstrated at least some punitive intent by tying forfeiture to racketeering crimes.

finding forfeiture under SS 13-2314 "tied directly to ... criminal offenses"

See Austin, 509 U.S. at 620, 113 S.Ct. at 2811, 125 L.Ed.2d at 504 (linking forfeiture to specific drug offenses evidence that Congress intended it as punishment); see also Leyva, 195 Ariz. 13, ¶ 15, 985 P.2d 498, ¶ 15 (finding forfeiture under § 13-2314 “tied directly to ... criminal offenses”).


Context: First, defendants have presented the results of double-blind telephone survey of 403 randomly selected adults conducted by the Field Research Corporation. See Jay Deck, P 1. In that survey, respondents were read the sentence "We have pledged a minimum of 1.5 million dollars worldwide to charity as a/in tribute to the beloved Princess Diana," and were then asked "What does this sentence mean to you?" and "When the sentence refers to charity does any particular charity or organization come to mind?" Id., P 2. Aggregating responses across both questions, only 6.9% of respondents said they thought money was being donated to "a/the Princess Diana fund; the Princess Diana trust fund; the Princess Diana organization; Diana or Princess Diana's/her charity."

Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 467 (4th Cir.1996) (holding 30-40% confusion between L’eggs and Leg Looks provided significant degree of actual confusion); see also Visa Int’l Service Ass’n v. Eastern Financial Credit Union, 24 U.S.P.Q.2d 1365, 1368, 1992 WL 138231 (9th Cir.1992) (6.7% confusion between marks insufficient to show actual confusion for purposes of preliminary injunction); Henri’s Food Products Co., Inc. v. Kraft, Inc., 717 F.2d 352, 358 (7th Cir.1983) (collecting cases and holding 7.6% confusion finding weighs against infringement).

holding 30-40% confusion between L'eggs and Leg Looks provided significant degree of actual confusion


collecting cases and holding 7.6% confusion finding weighs against infringement


Context: The proposition that an accused in a prosecution for murder is entitled to a charge on involuntary manslaughter when there is no evidence that could justify that verdict has never been concretely presented to this Court and has never been accepted by a majority of this Court.

See also Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199, 1210 (1977) (POMEROY, J., concurring); Commonwealth v. Ford, 474 Pa. 480, 485, 378 A.2d 1215, 1218 (opinion of POMEROY, J., joined by EAGEN, C. J., announcing the decision of the Court); Commonwealth v. Gartner, 475 Pa. 512, 532, 381 A.2d 114, 124 (1977) (POMEROY, J., concurring).

See Commonwealth v. Polimeni, 474 Pa. 430, 442, 378 A.2d 1189, 1196 (opinion of POMEROY, J., joined by EAGEN, C. J., announcing the decision of the Court).


Context: The critical question to be answered is not whether the use of the land incidentally serves purposes consistent with art. 97, or whether the land displays some attributes of art. 97 land, but whether the land was taken for those purposes, or subsequent to the taking was designated for those purposes in a manner sufficient to invoke the protection of art. 97.

applicability of art. 97 hinged on whether land had in fact been conveyed "to the conservation commission ... to maintain and preserve it for the use of the public for conservation purposes"

See also Toro v. Mayor of Revere, 9 Mass. App. Ct. 871, 872 (1980) (applicability of art. 97 hinged on whether land had in fact been conveyed “to the conservation commission ... to maintain and preserve it for the use of the public for conservation purposes”).

art. 97 protections may arise where subsequent to taking for purposes other than art. 97, land is "specifically designated" for art. 97 purpose by deed or other recorded restriction

See Selectmen of Hanson v. Lindsay, 444 Mass. 502, 508-509 (2005) (art. 97 protections may arise where subsequent to taking for purposes other than art. 97, land is “specifically designated” for art. 97 purpose by deed or other recorded restriction).


Context: The franchisees contend that the district court correctly concluded that DAI invoked the judicial process through its affiliates, insisting that the affiliates were DAI's alter egos or at least its agents. This argument brings up an issue we addressed in Lawrence, and which the Second Circuit has addressed in greater detail since -- whether a party can invoke the judicial process if it litigates a non-arbitrable claim against a parly with whom it has arbitrable claims.

holding that a franchisor "did not waive ... [his arbitrable] claims by prosecuting the unlawful detainer action in California state court because that action involved different issues"

Lawrence, 833 F.2d at 1165 (holding that franchisor who sued franchisees had not invoked the judicial process for purposes of a subsequent dispute); Distajo II, 107 F.3d at 132-33 (“only prior litigation of the same legal and factual issues as those the party now wants to arbitrate results in waiver of the right to arbitrate”); see also Gingiss Int’l, Inc. v. Bormet, 58 F.3d 328, 330(holding that a franchisor “did not waive ... [his arbitrable] claims by prosecuting the unlawful detainer action in California state court because that action involved different issues”).


"only prior litigation of the same legal and factual issues as those the party now wants to arbitrate results in waiver of the right to arbitrate"


Context: Absent settlement, Pacific Dunlop and Nucleus will likely file additional summary judgment motions on the jurisdictional issues and force class members to present substantive evidence which establishes that the exercise of personal jurisdiction comports with due process. See Sanders v. Robinson Humphrey/American Express, Inc., No. CIV.

A.1:85-CV-172RLV, 1990 WL 105894, at *3 (N.D.Ga. May 23, 1990) (The fact that “[m]any potentially dispositive threshold issues might bar recovery by "Class members” weighs heavily in favor of settlement.); see also Eltman v. Grandma Lee’s, Inc., No. 82 CIV.1912, 1986 WL 53400, at *5, *7 (E.D.N.Y. May 28, 1986) (finding impediments to personal jurisdiction weighing in favor of class action settlement).

The fact that "[m]any potentially dispositive threshold issues might bar recovery by "Class members" weighs heavily in favor of settlement.


Context: Appellants' challenges to the show-up identifications as unduly suggestive and unreliable are meritless. Neither the custodial appearance nor the officers' statement that the appellants "matched the descriptions" given by the witnesses rendered the identifications unduly sug gestive.

Singletary v. United States, 383 A.2d 1064, 1069 (D.C.1978) (with suspects seated in police car, witnesses were told, “We got two guys in the car similar to the ones you told us about”); see Turner v. United States, 622 A.2d 667, 672 (D.C.1993) (suspect was standing next to police car and police officers and was obviously in custody, but not in handcuffs); Garris v. United States, 559 A.2d 323, 327 (D.C.1989); Fields v. United States, 484 A.2d 570, 574 (D.C.1984), cert. denied, 471 U.S. 1067, 105 S.Ct. 2144, 85 L.Ed.2d 501 (1985); Washington v. United States, 334 A.2d 185, 186 (D.C.1975) (detective told victim, “We got your man, we think”); Jones v. United States, 277 A.2d 95, 98 (D.C.1971) (suspect was seated in the back of a police car in handcuffs when witness identified him).

with suspects seated in police car, witnesses were told, "We got two guys in the car similar to the ones you told us about"


suspect was seated in the back of a police car in handcuffs when witness identified him


Context: Based upon this constitutional provision, no civil action against the State may be sustained absent express authorization from the Tennessee General Assembly. This principle of law has also been recognized by the federal courts.

"The principle is elementary that a State cannot be sued in its own courts without its consent."

Woolsey v. Hunt, 932 F.2d 555, 564 (6th Cir.1991) (stating unless the state has expressly consented to be sued, sovereign immunity bars a court from entertaining any suit against the state); see also Memphis & C.R. Co. v. State of Tenn., 101 U.S. 337, 339, 25 L.Ed. 960 (1879) (“The principle is elementary that a State cannot be sued in its own courts without its consent.”).


Context: Tr. p. 75-76 (emphases added). Although Engelking may have gamely attempted to minimize the physical pain he felt by stating that his adrenaline was running, the jury was free to infer from Engelking's comments that he was hit "pretty hard" and that "it didn't feel good" that he indeed felt physical pain, thus experiencing bodily injury.

concluding that jury was free to infer that the victim was in fear during robbery despite victim's testimony to the contrary given evidence that robbery happened quickly, victim did not register what was happening at the time, and victim was scared afterward

See Mathis v. State, 859 N.E.2d 1275, 1281 (Ind.Ct.App.2007) (concluding evidence sufficient to support “bodily injury” element of battery where victim testified that the defendant’s actions caused her to “hurt” and “kinda see[] stars for a second”); see also Rickert v. State, 876 N.E.2d 1139, 1141-42 (Ind.Ct.App.2007) (concluding that jury was free to infer that the victim was in fear during robbery despite victim’s testimony to the contrary given evidence that robbery happened quickly, victim did not register what was happening at the time, and victim was scared afterward).

concluding evidence sufficient to support "bodily injury" element of battery where victim testified that the defendant's actions caused her to "hurt" and "kinda see[] stars for a second"


Context: Whether to grant relief under a writ of error coram nobis is a decision committed to the discretion of the Court; federal judges may exercise their discretion by granting relief to correct serious defects underlying the conviction or sentence if those defects were not correctable on appeal or where exceptional circumstances otherwise justify such relief.

Cf. Drobny, 955 F.2d at 996 (in the 5th Circuit, standard of review for a petition of writ of error coram nobis is more strict than that applicable to habeas corpus).

United States v. McCord, 509 F.2d 334, 341 (D.C.Cir.1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975); see Laughlin v. United States, 474 F.2d 444, 451 (D.C.Cir.1972), cert. denied, 412 U.S. 941, 93 S.Ct. 2784, 37 L.Ed.2d 402 (1973) (in the D.C. Circuit, habeas corpus standards generally apply in reviewing writs of error coram nobis).


Context: As assistant coaches and an athletic trainer, Defendants Palladino, Mr. Ducar, Ms. Ducar, and Prentice were not Defendant Dorrance's supervisors and had no authority over his behavior. In the absence of legal control over Defendant Dorrance, these Defendants' reporting omissions cannot be said to have affirmatively caused the alleged deprivation of Plaintiffs' constitutional rights.

"Simply put, White is responsible under SS 1983 for breaching her duty to report Siepert's abuse of Sarah only if state law also empowered her with a right of legal control over Siepert."

Therefore, the § 1983, failure-to-report claims against Defendants Palladino, Mr. Ducar, Ms. Ducar, and Prentice must be dismissed. See Reid v. Kayye, 885 F.2d 129, 131-32 (4th Cir.1989) (holding that defendants were not in control and, therefore, were not supervisors and not subject to liability under § 1983); see also Doe v. Rains County Indep. Sch. Dist., 66 F.3d 1402, 1411 (5th Cir.1995) (“Simply put, White is responsible under § 1983 for breaching her duty to report Siepert’s abuse of Sarah only if state law also empowered her with a right of legal control over Siepert.”).

holding that defendants were not in control and, therefore, were not supervisors and not subject to liability under SS 1983


Context: When an applicant moves to reopen his case based on worsened country conditions, and introduces previously unavailable reports that materially support his original application, the BIA has a duty to consider these reports and issue a reasoned decision based thereon, whether or not these reports are clearly determinative.

finding BIA abused its discretion in denying a motion to reopen based on "extreme hardship," where BIA failed to note the "most salient" evidence presented by Blanco

See Yu Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir.2005) (BIA abused its discretion, and indeed “erred egregiously,” in denying motion to reopen based on Country Reports showing worsened situation in China for Zhao’s religious group); Mansour v. INS, 230 F.3d 902, 907 (7th Cir.2000) (reversing BIA denial of motion to reopen in part because of BIA’s “silence with regard to the U.S. Department of State’s Report (1998) that suggests that the Iraqi government has engaged in abuses against [Mansour’s religious/ethnic group]”); cf. Blanco v. INS, 68 F.3d 642, 646 (2d Cir.1995) (finding BIA abused its discretion in denying a motion to reopen based on “extreme hardship,” where BIA failed to note the “most salient” evidence presented by Blanco); Yan Chen, 417 F.3d 268 (vacating and remanding denial of asylum for failure to consider country conditions report); Mostafa v. Ashcroft, 395 F.3d 622, 625 (6th Cir.2005) (vacating and remanding denial of Convention Against Torture relief where BIA’s opinion “fail[ed] to give adequate consideration to the country conditions in Iran”).

BIA abused its discretion, and indeed "erred egregiously," in denying motion to reopen based on Country Reports showing worsened situation in China for Zhao's religious group


vacating and remanding denial of asylum for failure to consider country conditions report


vacating and remanding denial of Convention Against Torture relief where BIA's opinion "fail[ed] to give adequate consideration to the country conditions in Iran"


reversing BIA denial of motion to reopen in part because of BIA's "silence with regard to the U.S. Department of State's Report (1998


Context: . We need not decide whether an attorney would be able to assert bona fide payee status under similar circumstances, as that case is not before us. We note, however, that, unlike lenders, attorneys have both a legal and an ethical duty to reasonably investigate the facts prior to filing pleadings with the court.

"Rule 11 of the Federal Rules of Civil Procedure imposes a duty of reasonable investigation into the facts and the law prior to filing a document with a court."

See, e.g., Callahan v. Schoppe, 864 F.2d 44, 46 (5th Cir. 1989) ("Rule 11 of the Federal Rules of Civil Procedure imposes a duty of reasonable investigation into the facts and the law prior to filing a document with a court.”); Mod. Rules Prof. Cond. § 3.1 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.”); In re Zohdy, 892 So.2d 1277 (La. 2005) (lawyer who sought to intervene in chemical products liability class action violated rules of professional conduct by failing to investigate whether his clients were exposed to chemical). Courts may wish to consider an attorney’s disregard for these duties in determining whether the attorney's acceptance of payment pursuant to his client’s fraudulent claim was in good faith.

an attorney's status as an officer of the court "places him on a different legal footing," and the court could not approve the retention of an attorney's fees where the client was guilty of fraudulent conduct in procuring the judgment

Cf. Excel Corp. v. Jimenez, 269 Kan. 291, 7 P.3d 1118, 1126 (2000) (an attorney’s status as an officer of the court "places him on a different legal footing,” and the court could not approve the retention of an attorney’s fees where the client was guilty of fraudulent conduct in procuring the judgment).


lawyer who sought to intervene in chemical products liability class action violated rules of professional conduct by failing to investigate whether his clients were exposed to chemical


Context: Instead he asserts a broader claim -- that the Second Amendment protects an individual's right to openly carry a handgun on a public sidewalk. Neither the parties nor my own research has identified any case in which the Second Amendment was held to cover such a right. Instead, several appellate courts have expressly declined to hold this right exists.

"No court has held that the Second Amendment encompasses a right to bear arms within state parks."

See Drake v. Filko, 724 F.3d 426, 430-31 (3rd Cir.2013) (declining to “definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home”); see also Embody v. Ward, 695 F.3d 577, 581-82 (6th Cir.2012) (“No court has held that the Second Amendment encompasses a right to bear arms within state parks.”); United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir.2011) (“On the question of Heller’s applicability outside of the home environment, we think it prudent to await direction from the Court itself.”); and Gonzalez v. Village of West Milwaukee, 671 F.3d 649, 659 (7th Cir.2012) (“Whatever ...

declining to "definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home"


"On the question of Heller's applicability outside of the home environment, we think it prudent to await direction from the Court itself."


Context: However, by introducing the prior inconsistent statement in the child's letter, defense counsel necessarily implied a separate charge of recent fabrication: defense counsel was impliedly asserting that the statement in the letter was true and the testimony at trial was fabricated more recently than the statement in the letter. Hence, while the statement to the detective was made after the original improper motive allegedly arose, it could properly be admitted under CRE 801(d)(1)(B) because it was made before the child made the statement in the letter, and it rebutted the separate implied charge of a deliberate fabrication more recent than the prior inconsistent statement.

See State v. Boobar, 637 A.2d 1162 (Me.1994)(reeent fabrication and improper influence are wholly separate motives and each is an independent ground for admission of a prior consistent statement); see also State v. Sullivan, 925 S.W.2d 483 (Mo.App.1996)(prior consistent statement admissible if made before prior inconsistent statement that was subject of cross-examination); but see Commonwealth v. Lareau, 37 Mass.App.Ct. 679, 642 N.E.2d 308 (1994).


Context: The Utah Court of Appeals concluded that effective safeguards other than the Miranda warnings may be constitutionally permissible. In particular, it concluded that the presence of counsel at Mr. Vos's interrogation adequately substituted for Miranda warnings.

"The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation."

Vos, 164 P.3d at 1263; see Miranda, 384 U.S. at 466, 86 S.Ct. 1602 (“The presence of counsel ... would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self-incrimination].”); see also Edwards v. Arizona, 451 U.S. 477, 485-86, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (“The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation.”); Michigan v. Mosley, 423 U.S. 96, 112-13, 116-17, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (“Miranda held that any confession obtained when not preceded by the required warnings or an adequate substitute safeguard was per se inadmissible in evidence.... [L]anguage in Miranda suggests that the presence of counsel is the only appropriate alternative”); United States v. Guariglia, 757 F.Supp. 259, 264 (S.D.N.Y.1991) (“[I]f Miranda warnings are meant to protect a defendant until he can consult counsel, ... they are not necessary when counsel is present.”); Com. v. Simon, 456 Mass. 280, 923 N.E.2d 58, 67 (2010), cert. denied, — U.S.-, 131 S.Ct. 181, 178 L.Ed.2d 108 (2010).

"The presence of counsel ... would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self-incrimination]."


"Miranda held that any confession obtained when not preceded by the required warnings or an adequate substitute safeguard was per se inadmissible in evidence.... [L]anguage in Miranda suggests that the presence of counsel is the only appropriate alternative"


"[I]f Miranda warnings are meant to protect a defendant until he can consult counsel, ... they are not necessary when counsel is present."


Context: Third, because the factual basis for ACCA sentencing enhancements was used to raise the statutory maximum sentence applicable to him, Hoover asserts these facts must be charged in the indictment and either proved to a jury or admitted by him. Hoover concedes this claim is foreclosed, and raises it only to preserve it for possible further review.

holding categorical approach to determine whether a prior conviction qualifies as a violent felony for ACCA purposes "raises no Sixth Amendment issue"

See James v. United States, 550 U.S. 192, 213-14, n. 8, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (holding categorical approach to determine whether a prior conviction qualifies as a violent felony for ACCA purposes “raises no Sixth Amendment issue”); see also United States v. White, 465 F.3d 250, 254 (5th Cir.2006) (“ ‘[Njeither the [ACCA] nor the Constitution requires a jury finding on the existence of the three previous felony convictions required for the enhancement’ ”.) (citation omitted).

" '[Njeither the [ACCA] nor the Constitution requires a jury finding on the existence of the three previous felony convictions required for the enhancement' ".


Context: Defendant's Motion-I at 8. Mr. Douglas' argument makes an unwarranted logical leap from "innocuous" to "exculpatory"; the two words are not synonymous. Although the audiotape does not incriminate Mr. Douglas, it contains nothing which is favorable to or would exculpate him, as Brady requires.

See United States v. Bagley, 473 U.S. 667, 677, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985) (interpreting "exculpatory evidence" as that which, if suppressed, would deprive the defendant of a fair trial).

concluding that an audiotape which only corroborated witness' testimony did not automatically exculpate the defendant

See also D’Ottavio v. United States, 794 F.Supp. 520, 520-21 (S.D.N.Y.1992) (concluding that an audiotape which only corroborated witness’ testimony did not automatically exculpate the defendant).


Context: Our Supreme Court has consistently condemned conduct that invades the exclusive province of the jury to resolve factual disputes, assess credibility and decide whether the State's evidence establishes guilt.

State v. McLean, 205 N.J. 438, 463, 16 A.3d 332 (2011) (barring expert and lay opinion testimony on ultimate issues, which are the province of the jury); State v. Denofa, 187 N.J. 24, 43, 898 A.2d 523 (2006) (declaring resolution of factual disputes about territorial jurisdiction, an element of a crime, to be within the province of the jury not the court); State v. Frisby, 174 N.J. 583, 595, 811 A.2d 414 (2002) (noting that expert opinion on a witness’ credibility encroaches upon the province of the jury); State v. Biegenwald, 106 N.J. 13, 44, 524 A.2d 130 (1987) (noting that a judge’s comments on the evidence “must be designed to avoid unduly influencing or otherwise invading the province of the jury”); see also State v. Bradshaw, 195 N.J. 493, 510, 950 A.2d 889 (2008) (directing that “[a] prosecutor should neither argue facts that are not in the record, nor expressly or implicitly vouch for the credibility of the victim”); State v. Feaster, 156 N.J. 1, 81, 716 A.2d 395 (1998) (explaining that “[b]ecause it is exclusively within the province of the jury to find fact and evaluate witness credibility, a trial court may not vouch for the credibility of a witness”).

directing that "[a] prosecutor should neither argue facts that are not in the record, nor expressly or implicitly vouch for the credibility of the victim"


explaining that "[b]ecause it is exclusively within the province of the jury to find fact and evaluate witness credibility, a trial court may not vouch for the credibility of a witness"


declaring resolution of factual disputes about territorial jurisdiction, an element of a crime, to be within the province of the jury not the court


noting that expert opinion on a witness' credibility encroaches upon the province of the jury