The 4th Circuit upholds the district court’s imposition of a nationwide preliminary injunction against enforcement of Section 2(c) of Executive Order 2 issued by President Trump as in the interests of national security, imposing a 90-day halt to immigration from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen. Bad faith We affirm in substantial ...
Court Upholds Injunction Against Travel Order
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First-Offender Drug Plea Was ‘Conviction’
Petitioner’s 2005 criminal proceedings under a first-offender statute for cocaine possession, Va. Code § 18.2-251, constituted a “conviction” as defined in 8 U.S.C. § 1101(a)(48)(A), making petitioner, a Mexican citizen, ineligible for cancellation of removal; the 4th Circuit denies his petition for review of the BIA order. The state court judge vacated the finding of ...
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Court Reinstates $2.3M Win for Pretrial Detainee
The 4th Circuit reverses a Maryland district court and reinstates plaintiff’s $2.3 million jury award against Baltimore police officers for violation of plaintiff’s civil rights in the use of questionable investigative strategies – including the officers’ failure to inform the state’s attorney that DNA reports excluded plaintiff as a sexual assault suspect and the victim ...
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Appeals court rebukes prosecutors in death penalty case
A federal appeals court panel has ordered an evidentiary hearing to determine if undisclosed evidence could upset the conviction of a man sentenced to die for the 2004 Norfolk murders of four people, including two preschool girls. Ruling that U.S. District Judge John A. Gibney Jr. was too quick to close the door on new ...
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Eighth Amendment – ‘Rough Ride’ – Excessive Force – Deliberate Indifference
If, as the plaintiff-prisoner forecasts, prison guards gave him a “rough ride” in a prison van in order to teach him a lesson about filing grievances, then the driver used excessive force and the other guard was deliberately indifferent. The court reverses summary judgment for these two guards. The court affirms summary judgment for the ...
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Sentencing – Procedurally Unreasonable – Downward Departure Arguments
In imposing a within-Guidelines sentence on defendant for armed robbery and brandishing a firearm during a crime of violence, the district court made cursory reference to two of defendant’s arguments for a downward departure (his opiate addiction and the influence of his elder brother) but failed to even acknowledge six other non-frivolous arguments: (1) the ...
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Appeals – Untimely – First Impression – Sua Sponte Dismissal
It is the government’s responsibility to raise the issue of the untimeliness of a defendant’s appeal; however, the defendant in this case had already pursued collateral review before he filed his direct appeal more than three years late. This is one of the rare situations in which the court should consider invoking Fed. R. Crim. ...
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Voluntary Retirement Doesn’t Defeat Disability Claim
Employees covered by the Longshore and Harbor Workers’ Compensation Act can claim disability benefits despite voluntary retirement, the circuit court held. After working for Appellee Huntington Ingalls Inc. for 45 years, Appellant Russell Moody gave 90 days’ notice of his retirement due to unhappiness with a new shift assignment. During the notice window, Moody injured ...
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4th Circuit Court of Appeals: Handcuffing student was excessive force
A school safety officer used excessive force in handcuffing an elementary student who posed no objective threat, but she was still entitled to qualified immunity for the constitutional violation. This matter involves a school resource officer’s decision to handcuff a calm, compliant elementary school student for fighting with another student three days prior. In early ...
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Featured: Travel ban’s third iteration likely unconstitutional
The appellate court affirmed a nationwide preliminary injunction on the Trump administration’s travel ban, which the district court held was a likely violation of the First Amendment’s guarantee of religious freedoms. Background Seven days after taking office, President Donald Trump signed Executive Order 13769 (“EO-1”), suspending immigrant and nonimmigrant entry of foreign aliens from seven ...
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Travel ban’s third iteration likely unconstitutional
The appellate court affirmed a nationwide preliminary injunction on the Trump administration’s travel ban, which the district court held was a likely violation of the First Amendment’s guarantee of religious freedoms. Background Seven days after taking office, President Donald Trump signed Executive Order 13769 (“EO-1”), suspending immigrant and nonimmigrant entry of foreign aliens from seven ...
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SC involuntary manslaughter can be non-violent
The defendant’s prior conviction for involuntary manslaughter in South Carolina did not qualify as a “violent felony” under the Armed Career Criminal Act. Background Appellant Jarnaro Carlos Middleton pled guilty to being a felon in possession of firearms and ammunition. The district court found that Middleton was subject to enhanced sentencing under the Armed Career ...
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Bon Mots: February 2018
As seasoned attorneys know, the lofty principles that attract aspiring lawyers can quickly be overshadowed by client emergencies, Sisyphean scheduling conundrums, unreasonable opposing counsel, billing targets, intrafirm politics, and understaffed courts. But from time to time, our esteemed judges take an opportunity to remind us of the law’s great written tradition, whether by powerful rhetoric, ...
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4th Cir.: Va.’s obstruction offense not a crime of moral turpitude
The Board of Immigration Appeals erred in concluding that Virginia’s obstruction-of-justice offense qualified as a “crime involving moral turpitude” that heightened the burden on an immigrant petitioner challenging his removal. Background Petitioner Jose Ramirez, a citizen of El Salvador, first entered the United States in 1996 at age 17. Nearly 20 years later, charged with ...
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4th Cir.; Prosecutor immune for Freddie Gray actions
Baltimore State’s Attorney Marilyn Mosby is absolutely immune from suit for her statements and prosecution of police officers involved with citizen Freddie Gray on the day he sustained fatal injuries in a police van, and the officers’ claims arising from those actions are thus barred. Background Freddie Gray Jr. suffered fatal injuries while handcuffed and ...
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4th Cir.: Flight to Thailand didn’t show “responsibility”
The district court did not err in declining to reduce the defendant’s sentence on grounds that he accepted responsibility for his offenses, since he fled the country before his initial sentencing hearing. However, the defendant should have been granted leave to redact information about his wife and child in his sentencing memorandum. Background Appellant Christopher ...
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Bon Mots: May 2018 Edition
As seasoned attorneys know, the lofty principles that attract aspiring lawyers can quickly be overshadowed by client emergencies, Sisyphean scheduling conundrums, unreasonable opposing counsel, billing targets, intrafirm politics, and understaffed courts. But from time to time, our esteemed judges take an opportunity to remind us of the law’s great written tradition, whether by powerful rhetoric, ...
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4th Cir.: City worker’s Title VII retaliation claim revived
Fired the day after asking for grievance paperwork, a black employee reasonably believed she was subject to a hostile work environment that was attributable to her employer. The district court erred in granting summary judgment against her. Background In August 2013, the City of Laurel hired Plaintiff Felicia Strothers, a black woman, as an administrative ...
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4th Cir.: Company’s agreement with feds preserved privilege for subsidiary’s disclosures
A written agreement between a corporation and the government preserved the company’s attorney-client privilege and work-product protection for information that the general counsel of a subsidiary entity disclosed to the government. Background Several years ago, federal prosecutors opened a grand jury investigation into whether X Corp. (the company name is under seal) and its subsidiaries ...
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City worker’s Title VII retaliation claim revived
Fired the day after asking for grievance paperwork, a black employee reasonably believed she was subject to a hostile work environment that was attributable to her employer. The district court erred in granting summary judgment against her. Background In August 2013, the City of Laurel hired Plaintiff Felicia Strothers, a black woman, as an administrative ...
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