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The Fifth Circuit denied a petition for rehearing and petition for rehearing en banc. The court substituted this opinion in place of its prior opinion. The court affirmed the district court's judgment as to plaintiff's hostile work environment claim and held that plaintiff sufficiently alleged sustained harassment that undermined his ability to work. In this case, he was repeatedly subjected to behavior that was hostile, intimidating, and bullying, and it was done publicly over a period of more than three years. Furthermore, defendant was deliberately indifferent to this racially hostile work environment. The court also affirmed as to the 42 U.S.C. 1981 claim and held that defendant retaliated after plaintiff complained about discrimination by transferring him to the night shift in a different division. Therefore, plaintiff's allegations supporting unlawful retaliation establish a violation of his constitutional rights, one that a reasonable official would know was unlawful. However, the court held that defendant was entitled to qualified immunity on the First Amendment retaliation claim where it was not clearly established that an internal complaint of discrimination made only to supervisors, primarily to vindicate one's own rights, qualified as speech made as a "citizen" rather than as an "employee." View "Johnson v. Halstead" on Justia Law

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Henderson was indicted for possession of crack cocaine with intent to distribute and two related firearms offenses. In accordance with the Marshals Service’s policy in the Springfield Division, Henderson appeared in court for arraignment encircled by four security officers and shackled with leg irons and handcuffs connected to a waist chain. His attorney moved to have him unshackled except for the leg irons for the remainder of the arraignment and at all future pretrial hearings. Counsel argued that routine shackling in court violates the accused’s right to due process and asked the judge to hold a hearing to determine whether Henderson posed an individualized risk to justify the use of full restraints. The judge denied the request, deferring to the Marshals Service’s policy of using full restraints on prisoners at every nonjury court appearance. The Seventh Circuit dismissed an appeal for lack of jurisdiction, holding that the collateral-order doctrine does not apply; due process shackling claims may be effectively reviewed on appeal from a final judgment. The court declined to reframe the appeal as a petition for a writ of mandamus. View "United States v. Henderson" on Justia Law

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DEA agents, with an arrest warrant for Terry, waited for him to return from taking his son to school, arrested him when he got out of his car, and took him in for questioning. Other agents knocked on Terry’s apartment door. A woman answered, wearing a bathrobe. The agents identified themselves, explained that they had arrested Terry, and asked to enter. They did not ask the woman who she was or whether she lived at the apartment. She let them in, signed a consent form, and the search began. The woman then identified herself as the mother of Terry’s son, explaining that her son lived at Terry’s apartment, but she did not. Agents continued the search. At the field office, Terry refused to sign an advice‐of‐rights form, citing his previous experience with law enforcement but stated “he was willing to talk” and made incriminating statements about his role in a conspiracy to distribute heroin. The Seventh Circuit reversed the denial of his motion to suppress. It is not reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect’s residence. Terry’s education, sophistication, and familiarity with the criminal justice system provide sufficient evidence that he understood his rights when the agents read them to him and his willingness to speak was a “course of conduct indicating waiver,” notwithstanding his refusal to sign the form. View "United States v. Terry" on Justia Law

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Plaintiffs challenged a Monterey County ordinance limiting to four the number of roosters that can be kept on a property without a permit. A permit application must include a plan describing the “method and frequency of manure and other solid waste removal,” and “such other information that the Animal Control Officer may deem necessary.” A permit cannot be issued to anyone who has a criminal conviction for illegal cockfighting or other crime of animal cruelty. The ordinance includes standards, such as maintaining structurally sound pens that protect roosters from cold and are properly cleaned and ventilated and includes exemptions for poultry operations; members of a recognized organization that promotes the breeding of poultry for show or sale; minors who keep roosters for an educational purpose; and minors who keep roosters for a Future Farmers of America project or 4-H project. The court of appeal upheld the ordinance, rejecting arguments that it takes property without compensation in violation of the Fifth Amendment; infringes on Congress’ authority to regulate interstate commerce; violates the Equal Protection Clause; is a prohibited bill of attainder; and violates the rights to privacy and to possess property guaranteed by the California Constitution. View "Perez v. County of Monterey" on Justia Law

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Spiegel has lived in a Wilmette condominium building for 22 years. In 2015, the McClintics bought a unit in the building. The McClintics, apparently in violation of association rules, do not live in the building but use the building pool almost daily. To document the violations, Spiegel photographed and filmed them. Corrine McClintic filed police reports. Spiegel was not arrested but officers threatened him with arrest for disorderly conduct if his conduct persists. Spiegel sued Corrine and the Village, arguing that they conspired to violate his constitutional rights and that Corrine intruded upon his seclusion, in violation of Illinois law, by photographing the interior of his condominium. The Seventh Circuit affirmed the dismissal of his complaint. Spiegel has not identified a constitutional violation or shown that he suffered damages from the alleged intrusion upon his seclusion. The mere act of filing false police reports is not actionable under 42 U.S.C. 1983 and it is unclear whether McClintic’s reports contained falsehoods. Spiegel’s claim that the officers refused to listen to his explanations for why his conduct was lawful is not enough to establish a conspiracy. Spiegel has not plausibly alleged an express Wilmette policy to enforce the disorderly conduct ordinance unconstitutionally. He merely alleges that officers received reports of a disturbance and advised an apparent provocateur to stop his surveillance. View "Spiegel v. McClintic" on Justia Law

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Adkinson and others robbed an Indiana T-Mobile phone store and a Kentucky Verizon store at gunpoint. They later robbed nine additional stores. During its investigation, T-Mobile pulled data from cell sites near two victim stores and determined that only one T-Mobile phone was near both robberies; Adkinson was an authorized user on that account. T-Mobile determined where Adkinson’s phone traveled and voluntarily gave the data to the FBI, which used the information to obtain a court order under the Stored Communications Act, 18 U.S.C. 2703, granting the FBI access to additional cell-site data. Adkinson unsuccessfully moved to suppress the evidence obtained without a warrant. The court ruled that T-Mobile was not the government’s agent and, in his user agreement, Adkinson consented to T-Mobile’s cooperation with the government. Adkinson did not timely file a change of venue motion. On the morning of trial, seeing only one African-American prospective juror, Adkinson moved to transfer the case to a venue with “a better pool of African Americans.” Convicted of robbery, brandishing a firearm to further a crime of violence, and conspiracy to commit those crimes, Adkinson was sentenced to 346 months’ imprisonment. The Seventh Circuit affirmed. The Constitution does not entitle a defendant to a venire of any particular racial makeup and federal law authorized the government to prosecute Adkinson in any district where he offended. The government’s mere receipt of T-Mobile’s data is not a ratification of T-Mobile’s conduct. View "United States v. Adkinson" on Justia Law

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Timothy Nunn was convicted by jury of unlawful possession of a firearm by a convicted felon. He was sentenced as a habitual offender to ten years without the possibility of parole or early release. Nunn appealed when the trial court denied his motion for a new trial. Nunn's appellate attorney found no arguable issue to raise an appeal. Finding no reversible error or issue warranting further briefing, the Mississippi Supreme Court affirmed Nunn's conviction and sentence. View "Nunn v. Mississippi" on Justia Law

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When McKinney was granted tenure in 1974, his employment was governed by University Policies that provide that tenured faculty can be terminated only “for cause” and provide yearly salary raises for faculty who perform satisfactorily or meritoriously. Any salary increase for “maintenance” or merit becomes part of the base contract salary. No explicit provisions govern salary decreases; the Policy provides procedures to address complaints about salary decisions and requires that a faculty member “judged unsatisfactory” be informed of specific reasons related to teaching ability, achievements in research and scholarship, and service. In McKinney’s 2010 and 2011 reviews, Dean Keeler expressed concern about declining enrollment in McKinney’s classes, poor student evaluations, and a stagnant research agenda, but granted standard 2.0% and 1.5% maintenance increases. In 2012, McKinney ranked last among the Grad School faculty and was rated “less than satisfactory.” McKinney’s salary was increased by 0.5%. He was told that if his performance did not improve, he could receive a salary reduction. McKinney again ranked last in the 2013 review. Dean Keeler reduced his salary by 20%. McKinney sued, alleging that the University unconstitutionally deprived him of his property interest in his base salary. Reversing the district court, the Third Circuit concluded that he had no such property interest. The Policy language is not sufficient to give McKinney a “legitimate expectation” in the continuance of his base salary. The appeal provisions and the three-tiered rating structure indicate that salaries are subject to “possible annual adjustments,” and that McKinney had no more than a “unilateral expectation of receiving [his] full salary,” View "McKinney v. University of Pittsburgh" on Justia Law

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Maye became a member of the Nation of Islam—one of several Islamic sects— in 1992. Maye has been a devout, active Muslim for 20 years, including the years he spent incarcerated in Michigan Department of Corrections (MDOC) facilities. Eid al-Fitr is one of two annual religious feasts central to Islam. MDOC officials twice prevented Maye from participating in Eid. In 2013, Chaplain Serafin told Maye he could only attend Eid if he changed his religion from Nation of Islam to Al-Islam; Maye testified that Chaplain Taylor denied his request to participate in Eid in 2014 without offering any justification. Maye filed suit under 42 U.S.C. 1983. The district court denied Serafin and Taylor qualified immunity. The Sixth Circuit affirmed. The court noted that, since 2006, MDOC has been embroiled in litigation regarding its policy of refusing to allow Muslim inmates to participate in Eid and that in July 2013, MDOC amended its Policy Directive to recognize Eid as a protected religious holy day. Maye sufficiently alleges the deprivation of his constitutional rights and a reasonable official would have known that the constitutional rights at issue were clearly established when faced with a court order specifically instructing MDOC officials to allow Muslim inmates to participate in Eid. View "Maye v. Klee" on Justia Law

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In 2002, Thomas and Gregory arranged to buy cocaine from Burdette at a Lexington Waffle House. They got into Burdette’s car, with Thomas in the back seat. Thomas grabbed Burdette from behind, held a gun to his head, and demanded the cocaine. When Burdette refused, Thomas shot him in the leg. Burdette then said the cocaine was across the street with his partner. Thomas shot Burdette three more times. Thomas and Gregory fled. Burdette died. Thomas was convicted of murder and sentenced to 40 years’ imprisonment. The Kentucky Court of Appeals affirmed. Kentucky courts denied post-conviction relief. Thomas sought habeas corpus relief, claiming that his appellate counsel was ineffective for failing to challenge the jury instructions. The district court found the petition untimely. The Sixth Circuit reversed. On remand, the district court denied relief. The Sixth Circuit affirmed, rejecting an argument that the Kentucky definition of murder violated due process because it prescribes two mental states—intent to kill and extreme indifference to human life—as alternative means for the mens rea element. The fact that the jury needed to find was that Thomas either intended to kill his victim or possessed extreme indifference as to whether he killed him; the jury made that finding, View "Thomas v. Meko" on Justia Law