Posts

Defendant’s conviction for knowingly possessing a firearm in and affecting commerce while being an unlawful user or addicted to a controlled substance is affirmed where: 1) the district court did not abuse its discretion in declining to instruct the jury on defendant’s proposed definition of “unlawful user”; 2) the district court’s instruction made clear that the prosecutor was required to prove more than use of a controlled substance in a manner other than as prescribed by a licensed physician; and 3) reasonable jurors could have concluded from this evidence that defendant’s use of crack cocaine was regular, sustained, and contemporaneous with his possession of the five firearms at issue....

Defendant’s sentence for theft of public money of two years’ probation, conditioned on 240 hours of community service, is affirmed where: 1) it was reasonable for the presentence report to recommend, and the district court to agree, that the sanction for defendant’s offense needed to be more than losing his right to hunt; and 2) the sentence was not procedurally unreasonable because little explanation was required for a within-guidelines sentence....

In an appeal from the district court’s order revoking defendant’s supervised release and imposing additional conditions on her release, the order is vacated in part where: 1) the restriction on associating with persons with misdemeanor convictions was not reasonably related to the risk that defendant would reoffend; and 2) there was insufficient evidence that repeatedly incarcerating defendant for desiring to maintain a relationship with her “life partner” would best serve the interests of rehabilitation or deterrence, or would afford greater protection to the public....

As government entities have recognized the implicit bias in using only male pronouns in statutes, many have moved to amend their laws to be more inclusive. For instance, federal criminal statutes now use “whoever” to refer to possible violators. Similarly, California’s criminal code employs “he or she,” “his or her,” or eschews pronouns entirely when defining crimes. But Berkeley, California, is taking gender-neutrality much further, beyond mere pronouns. The city’s updated municipal code not only swaps personal pronouns “they” and “them” for “he” and she," but also removes any gendered language, from “fireman” and policewoman" to “manpower” and “manhole....

The Supreme Court might be the highest Court in the United States, but that doesn’t mean the justices are bound in by our nation’s borders, and they’re certainly not grounded to D.C. In fact, many of the justices are frequent fliers, jaunting off to Asia to give a speech on the U.S. Constitution, for example, spending their summers in France teaching, or just chilling out at an exclusive Texas ranch with a bunch of berobed businessmen in a secretive order of hunters....

She was convicted of battery of a police officer after her attorney allegedly refused to submit photographs of her injuries to the court and after the judge denied a self-defense jury instruction. Rawlins did not receive jail time. Instead, she received 3 years’ probation. No big deal, right? But of course, convictions carry collateral consequences far beyond a cell. She timely appealed and sought post-conviction relief in state court, but unfortunately, the courts themselves weren’t nearly as timely, as it took about 10 years before her state remedies were exhausted....

A man who had worked for the city for the greater part of three decades was vindicated by the Seventh Circuit in a non-accommodation claim. The man had claimed that the city fired him for not having a commercial license – an item that was impossible for him to acquire because of diabetes he’d developed over the years. This very interesting ADA-retaliation case mixes employment law and politics. Employers should pay attention to the tone of this court carefully....

They’re not stories you hear often, but when you do, they sound horrific. JetBlue is being sued by two flight attendants who claim two pilots drugged both and raped one during a layover. The women claim the airline did nothing when they reported the assault and are suing for sex discrimination and civil rights violations, along with aggravated sexual abuse and assault and battery claims. And while that particular incident could’ve happened in any workplace, it comes against a backdrop of increased sexual assault of passengers as well....

In an ERISA action based on the discontinuation of plaintiff’s long-term disability (LTD) benefits, summary judgment for defendant is affirmed in part where defendant-insurer could not be held liable for statutory penalties because 29 U.S.C. section 1132(c) only provided a cause of action against plan administrators. However, the order is reversed in part where defendant’s failure to comply with its duty under section 1133(2) to provide plaintiff with “a reasonable opportunity for a full and fair review” of defendant’s decision to discontinue plaintiff’s LTD benefits excused plaintiff’s failure to exhaust before bringing suit under section 1132(a)....

Hansen v. PT Bank Negara Indonesia, No. 09-4052, concerned an action claiming that defendant Indonesian state bank refused to honor certain financial instruments on the grounds that they were fraudulent and not issued by defendant. The court of appeals affirmed the denial of defendant’s motion for judgment on the pleadings, holding that 1) the district court’s finding that defendant did not show by a preponderance of the evidence that none of its officers or employees actually participated in the alleged commercial activity was not clearly erroneous; and 2) the district court narrowly tailored its discovery order to the precise jurisdictional fact question presented....

In US v. Young, No. 09-3536, the court of appeals affirmed defendant’s conviction and sentence for attempting to entice a minor to engage in sexual activity, holding that 1) the evidence supported defendant’s jury conviction for attempted enticement of a minor as a reasonable jury could find defendant guilty beyond a reasonable doubt; 2) a defendant cannot abandon an attempt once it has been completed; 3) even had defendant established that the government induced his criminal conduct, defendant was predisposed to commit the crime; and 4) because defendant told the fictitious victim that he was not married, although in reality, he had a wife and three children, a two-level enhancement for misrepresentation of identity was appropriate....

In a twist on the right to remain silent, a federal appeals court said prison guards could not compel an inmate to snitch. Mark Burns sued New York prison officials for allegedly punishing him after he refused to tell them who hit him. He said the guards made him an offer he couldn’t refuse: turn informant or solitary confinement. You can’t do that, explained the U.S. Second Circuit Court of Appeals in Burns v....

Many people wonder if they need a lawyer to get workers’ compensation after a work-related injury or illness. The best answer is: “It depends.” If you suffered a minor injury, have a good relationship with your employer, and you understand the workers’ comp process, then you may not need an attorney. But if you suffered a serious injury or illness, or your employer is arguing that you are not entitled to benefits, you will likely want to contact an experienced workers’ comp lawyer who can help you stand up for your rights....

In a product liability action against a drug manufacturer, dismissal of the action as untimely is affirmed where a prior dismissal of an identical action in state court for failure to appear at a court conference constituted a dismissal “for neglect to prosecute” such that plaintiff could not avail himself of a six-month tolling provision under New York Civil Practice Law and Rules section 205(a). Read Doyle v. Am. Home Prods....

In a 42 U.S.C. section 1983 action based on officers’ alleged failure to investigate a crime or arrest the alleged perpetrator because of the race of the victim and that of the perpetrator, denial of defendants’ motion to dismiss based on qualified immunity is affirmed where: 1) officers’ discriminatory failure to arrest, as well as investigate, can violate equal protection; 2) plaintiff sufficiently alleged such a violation in this case; and 3) defendant-officers had a more than fair warning that failure to investigate and arrest the perpetrator because of race violated equal protection....

The unprecedented leak of U.S. Supreme Court Justice Samuel Alito’s first draft in the monumental abortion case Dobbs v. Jackson Women’s Health would explicitly overturn Roe v. Wade and end the constitutional right to an abortion. Here is a quick summary of that opinion, which can (and likely will) change from its current version. However, the first draft does strongly suggest that the court is likely to overturn Roe in about a month....

With all the different structures these days for all sorts of different forms of employment, one creatively formed janitorial services company is facing the same age-old question as every “sharing economy” company must at some point or another: Are their workers employees or independent contractors or something else? Jani-King is a janitorial services company that requires some of its janitors to form their own corporations as franchisees. As a result of this novel structure, the Department of Labor brought a complaint alleging violations of federal record keeping requirements, among other things....

Just last month, the U.S. Supreme Court affirmed the Second Circuit’s decision in Vance v. Ball State, holding “than an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim.” The ink of the decision is barely dry, and the Seventh Circuit is back at it. During this period, in 2005, Peri adopted a written sexual harassment policy which provided that all complaints must be made to the HR manager and CEO, both located off-site, in a different state....

Traffic stop laws aren’t always clear, so we often see suppression challenges stemming from traffic stops in the Tenth Circuit Court of Appeals. This week, we have a case that demonstrates that traffic stop laws are even less forgiving toward tractor-trailer drivers than they are toward average motorists. A New Mexico police officer stopped defendant Julio Lopez-Merida and his co-driver, Gil Manfredo Ruiz, after spotting a loose air-brake hose between the tractor and the trailer that could be frayed on the tractor deck....

Consumer confidence unexpectedly dipped in January. A tight labor market and worries about inflation have made Americans a little wary of the direction the economy is headed. The bottom line for retailers is that most of us are a little less eager to shop for non-essential items. It also means retail theft, which has increased in recent years, is unlikely to slow down any time soon. This rise in retail theft coincides with the ubiquitous use of self-checkout lanes in big box retail stores like Walmart and Target....