Articles Posted in U.S. Court of Appeals for the Sixth Circuit

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

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

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

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

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

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

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

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Hill suffered a diabetic emergency. Paramedics, including Streeter, found Hill very disoriented and combative. Streeter tested Hill’s blood-sugar level, which was extremely low at 38. As blood sugar falls, a person may lose consciousness, become combative and confused, or suffer a seizure. A blood-sugar level of 38 is a medical emergency and, untreated, can lead to death. Deputy Miracle arrived as paramedics were attempting to intravenously administer dextrose to raise Hill’s blood-sugar level. Hill ripped the catheter from his arm, causing blood to spray, and continued to kick, swing, and swear as the paramedics tried to restrain him. Miracle eventually deployed his taser to Hill’s thigh, quieting Hill long enough for Streeter to reestablish the IV catheter and administer dextrose. Hill’s blood-sugar levels stabilized. Hill denied being in pain, but was taken to the hospital. Not treatment was rendered for the taser wound. Hill claimed that he suffered burns and that his diabetes worsened. Hill filed suit under 42 U.S.C. 1983, alleging excessive force, with state-law claims of assault and battery and intentional infliction of emotional distress. Hill subsequently died from complications of diabetes. The district court denied Miracle’s claim of qualified immunity. The Sixth Circuit reversed, with instructions to dismiss. Miracle acted in an objectively reasonable manner with the minimum force necessary to bring Hill under control, and his actions enabled the paramedics to save Hill’s life. View "Estate of Hill v. Miracle" on Justia Law

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Memphis animal-control officer Lynch investigated a third complaint of animal cruelty at Moore's house. Moore did not come to the door. Moore’s neighbor, Hillis, told Lynch that Moore had threatened her and that she was “terrified” of him. Backup arrived. Moore opened the door, gestured as if he had a weapon, and shut the door. A second visit was equally unsuccessful. The next day, Hillis told Lynch that Moore said he would kill Lynch if she returned. TACT (the Memphis version of SWAT) was asked to assist in serving a search warrant. At the both doors, officers announced “police" and threw flash-bangs inside. A TACT officer saw Moore enter his bedroom. Moore called 911. The team approached, calling “Memphis Police” and “search warrant.” To prevent a barricade situation, an officer threw a flash-bang into the bedroom. Officer Penny entered and saw Moore holding a semi-automatic pistol, pointed at Penny. On the 911 tape, after the flash-bang, Penny can be heard y elling, “Hands, Don! Hands, hands, hands!” Seconds later, Penny fired at Moore, killing him. Moore’s gun, still in his hand was fully loaded with a round in the chamber; he had another pistol in a holster. Officers found a rifle next to the front door and axes next to each door. Moore’s children sued under 42 U.S.C. 1983, claiming excessive force. The Sixth Circuit affirmed summary judgment in favor of the defendants, finding no violation of Moore’s constitutional rights. View "Moore v. City of Memphis" on Justia Law

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Ohio’s execution protocol allows for lethal injection using a three-drug combination of midazolam; either vecuronium bromide, pancuronium bromide, or rocuronium bromide, which are paralytics; and potassium chloride, which stops the heart. The midazolam is intended to ensure that the person being executed is insensate to the pain that the other drugs cause. If midazolam does not “render the prisoner unconscious,” then “there is a substantial, constitutionally unacceptable risk of suffocation . . . and pain” from the second two drugs. The district court granted a preliminary injunction to allow for further litigation regarding midazolam’s efficacy before Ohio executes three men. The Sixth Circuit affirmed. The ultimate question is whether use of midazolam “entails a substantial risk of severe pain” as compared to “a known and available alternative.” Plaintiffs demonstrated a likelihood of success on the merits of that claim. The public has an interest in sentences being carried out, but also also has an interest in ensuring that those sentences are carried out in a constitutional manner. The court cited estoppel, noting that Ohio represented that it was not going to use pancuronium bromide or potassium bromide “going forward,” and that there was “no possibility” it would revert to using those drugs and subsequently acted inconsistently with those representations. View "In re: Ohio Execution Protocol" on Justia Law