Tuesday, May 23, 2017

11th Circuit rules that dogs aren't people

Uh oh... get ready for the hate mail. How could you rule that dogs aren't people?

Judge Rosenbaum starts off this entertaining qualified immunity case like this:
In history and literature, the name “Draco” has been associated with some notorious characters. Draco of ancient Greece is perhaps best known for the harsh legal code he composed, which inspired the word “draconian.” Antonios Loizides, Draco’s Law Code, ANCIENT HISTORY ENCYCLOPEDIA http://www.ancient.eu/ Dracos_Law_Code/ (last visited May 12, 2017). Draco Lucius Malfoy, of course, is Harry Potter’s perpetually maleficent rival in the Harry Potter literary series.*

And to the list of infamous Dracos, add Defendant-Appellant Draco. Draco is a police canine who was involved in the apprehension of Plaintiff Randall Kevin Jones. Unfortunately, Draco inflicted some serious damage on Jones when Draco refused to release his bite. Jones sued Draco, among others, for negligence. Georgia law by its terms, however, does not provide for negligence actions directly against dogs. We therefore hold as much today and reverse the district court’s denial of Defendant-Appellants’ motion to dismiss Draco.

But while Georgia law does not allow for a negligence suit against a dog, it does permit negligence claims against a state officer who is not entitled to official immunity. Title 42, United States Code, Section 1983 likewise authorizes an action against a police officer who employs a dog in an exercise of excessive force. And Jones also sued the officers responsible for Draco’s encounter with Jones. In response, Defendant-Appellant Officers invoked official and qualified immunity and moved to dismiss. The district court summarily denied Defendant-Appellant Officers’ motion. Today we must reverse that denial and dismiss the claims. Jones has failed to allege facts establishing that the officer acted with malice, so the officers are entitled to official immunity. Nor does binding precedent allow for the conclusion that Defendant Officers’ employment of Draco in the circumstances of this case violated Jones’s clearly established rights, so the officers have qualified immunity.

*See J.K. Rowling, Harry Potter and the Sorcerer’s Stone (1997); J.K. Rowling, Harry Potter and the Chamber of Secrets (1998); J.K. Rowling, Harry Potter and the Prisoner of Azkaban (1999); J.K. Rowling, Harry Potter and the Goblet of Fire (2000); J.K. Rowling, Harry Potter and the Order of the Phoenix (2003); J.K. Rowling, Harry Potter and the Half-Blood Prince (2005); J.K. Rowling, Harry Potter and the Deathly Hallows (2007).

Monday, May 22, 2017

You be the judge -- Anthony Weiner

You be the judge -- former Congressman and Huma's husband Anthony Weiner pleaded guilty to a count of transferring obscene material to a minor. It carries a maximum sentence of 10 years. His guidelines are 135 months at the low end. The government has agreed to recommend a sentence of 21-27 months in this plea agreement. What will the judge do? What would you do?

Friday, May 19, 2017

Who could read all of this?

The 11th Circuit issued 284 pages of en banc opinions in the smoking cases, including Tjoflat's 225+ page (!!) dissent. I couldn't bear to read it all, but the Daily Report has this initial summary:

The U.S. Court of Appeals for the Eleventh Circuit issued a 284-page en banc opinion Thursday saying that smokers who won a class action against tobacco companies can also file individual lawsuits.

The judges had some fireworks. Three wrote dissents. One called the process a “chaotic poker game” and said judges should “stick to our day jobs” instead of advocating for plaintiffs.

In the end, the judges upheld the lower court decision in favor of Theresa Graham against R.J. Reynolds Tobacco Co. and its affiliates. Judge William Pryor wrote the majority opinion.

“This appeal presents the questions whether due process forbids giving a jury’s findings of negligence and strict liability in a class action against cigarette manufacturers preclusive effect in a later individual suit by a class member and, if not, whether federal law pre-empts the jury’s findings,” Pryor began.

Thursday, May 18, 2017

Wednesday, May 17, 2017

You have a right to remain silent.

After not speaking for a year, Gerald Petion pleaded guilty to a federal drug case. Paula McMahon has the details:

On Tuesday, after 12 months of politely but pointedly remaining totally silent and unresponsive in court, Petion resumed speaking to judges: He apparently decided it was in his best interest to accept a plea agreement offer from the prosecution.

“Guilty,” Petion said when U.S. District Judge Robin Rosenberg asked him how he wanted to plead to two federal drug-trafficking and weapons charges.

Prosecutors said they will recommend 20 years in federal prison when he is sentenced in August, but the final decision on his punishment lies with the judge. The maximum possible penalty is life in prison.

***
He remained imprisoned the whole time and only succeeded in delaying progress in his case for 12 months.

Earlier this month, Petion finally resumed speaking to his attorney after two in-depth mental health evaluations showed that there was nothing physically or mentally wrong with Petion and that he was legally competent for the case to proceed. The experts said he was faking mental illness.

After he was determined to be mentally competent, prosecutors made a plea offer and said they were considering filing a more serious charge, with a harsher punishment, if he planned to go to trial.

Meantime, we still have no U.S. Attorney. As far as I know, all of the finalists are still being considered. I imagine that we will have our nominee by the end of the month. It will be interesting to see if the nominee will accept the position and work for a Trump/Sessions administration.