Articles Posted in Constitutional Law

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This appeal stems from a district court’s denial of qualified immunity to the former El Paso County Sheriff, Terry Maketa and undersheriff, Paula Presley. The claims were brought by three categories of subordinates: (1) Lieutenant Cheryl Peck; (2) Sergeant Robert Stone; and (3) Commanders Mitchell Lincoln, Rodney Gehrett, and Robert King. Lt. Peck, Sgt. Stone, and the three Commanders alleged retaliation for protected speech. The district court held that the subordinates’ allegations were sufficient to defeat qualified immunity at the motion-to-dismiss stage. The Tenth Circuit disagreed because the law was not clearly established that: (1) Lt. Peck’s speech fell outside of her duties as a public employee; (2) the investigations of Sgt. Stone and his children constituted adverse employment actions; and (3) the investigation of the Commanders, their placement on paid administrative leave, and their alleged humiliation constituted adverse employment actions. Therefore, Sheriff Maketa and Undersheriff Presley were entitled to qualified immunity and dismissal of the complaint. View "Lincoln v. Maketa" on Justia Law

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Plaintiffs-Appellees, Nazli McDonnell and Eric Verlo, sought a preliminary injunction against Defendants, arguing policies and regulations governing protests and demonstrations at Denver International Airport (“DIA”) violated their First and Fourteenth Amendment rights. On January 28, 2017, an unpermitted protest was held at DIA in an interior area colloquially known as the “Great Hall.” The protest was in response to Executive Order 13769 which, inter alia, temporarily suspended entry into the United States of nationals from seven predominantly Muslim countries. A second unpermitted protest, which was organized and attended by the Plaintiffs, was held on January 29, 2017. The January 28th protest was allowed to continue without a permit but protestors were eventually moved from the Great Hall to an outdoor plaza. The January 29th protest took place near the international arrival area at the north end of the Great Hall and continued for several hours. Although protestors on both days were warned they could be arrested for continuing to demonstrate without a permit, no arrests were made. The district court granted the injunction in part, concluding Plaintiffs made the necessary showing with respect to their claim that the challenged regulations were unreasonable because they did not contain a formal process for expediting permit applications in exigent circumstances. The district court also enjoined Defendants from enforcing certain regulations governing the location of permitted protests and picketing restrictions, including the size of signage. The Tenth Circuit reversed, primarily because it applied the wrong legal standard in resolving whether the elements for granting a preliminary injunction were met: “[t]he district court’s flawed analysis and clearly erroneous factual finding led it to conclude that Plaintiffs demonstrated a strong likelihood of succeeding in their challenge to the lack of an exigency provision in [the Denver Municipal Code]. The court abused its discretion in so concluding.” View "McDonnell v. City and County of Denver" on Justia Law

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A jury found Defendant Jose Rios-Morales guilty of possessing with intent to distribute more than fifty grams of methamphetamine and conspiring to do the same. He received a sentence of 292 months’ imprisonment, at the bottom of the advisory Guidelines range. On appeal, he challenged the admission of 404(b) evidence and raises claims of prosecutorial misconduct, witness perjury, jury taint, and cumulative error. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Rios-Morales" on Justia Law

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Defendant Walter Saulsberry pleaded guilty to possession of 15 or more unauthorized credit cards with intent to defraud. He reserved the right to appeal the district court's denial of his motion to suppress cards seized from his car. On appeal he argued he was unlawfully detained after an anonymous informant reported that he was smoking marijuana in his car and that the search of his car was unlawfully expanded beyond a search for marijuana to include inspection of credit cards found in a bag within the car. Although the Tenth Circuit found there was reasonable suspicion to detain Defendant, the arguments presented by the government were not persuasive that there was probable cause to expand the search. Accordingly, the Court reversed the denial of defendant's motion to suppress, and remanded the case for further proceedings. View "United States v. Saulsberry" on Justia Law

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Defendant Gary McKibbon pled guilty to being a felon in possession of a firearm. In calculating his sentence for that offense under the 2016 sentencing guidelines, the district court consulted U.S.S.G. 2K2.1, which provided for a base offense level of twenty if McKibbon had a prior “controlled substance offense” as defined by U.S.S.G. 4B1.2(b) and its application note 1. The court, without objection, deemed McKibbon’s 2014 Colorado conviction under Colo. Rev. Stat. 18-18-405(1)(a) for distribution of a Schedule I or II controlled substance to be such a “controlled substance offense.” Using a base offense level of twenty, then, the sentencing court calculated McKibbon’s total offense level to be twenty-one which, combined with his criminal history category IV, resulted in an advisory guideline range of fifty-seven to seventy-one months in prison. The district court imposed a within-range sentence of sixty-six months. On appeal, McKibbon argued for the first time that his prior 2014 Colorado conviction did not qualify as a “controlled substance offense.” After review, the Tenth Circuit concluded both that the district court plainly erred in treating defendant's prior Colorado drug distribution conviction as a “controlled substance offense” under U.S.S.G. 4B1.2(b), and that that error warranted resentencing. View "United States v. McKibbon" on Justia Law

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Richard Arnold, Sr., his wife Robyn, and his sons Ricky and Robert, devised a scheme to defraud individuals out of rebates paid to them when they purchased new vehicles. The Arnolds persuaded the victims to turn their rebates over to a charitable trust by falsely representing they would manage the trust to pay off the victims’ car loans. Although the Arnolds made some loan payments from the trust, they eventually stopped and used the remaining rebate funds for their own personal expenses. The victims then either took over the loan payments or relinquished the vehicles to the lenders. The indictment notified Richard Arnold, Sr. of the Government’s intent to seek forfeiture of “a money judgment in an amount equal to the proceeds obtained as a result of the offenses.” Arnold, Sr. appealed the district court’s forfeiture order arguing the district court erred by: (1) imposing an order of forfeiture after sentencing; and (2) failing to require the Government to use forfeited proceeds to offset the restitution Arnold owed his victims, which would lower the total amount of restitution and forfeiture he is required to pay. Finding no reversible error, the Tenth Circuit affirmed the forfeiture order. View "United States v. Arnold (Richard Sr.)" on Justia Law

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Oriana Lee Farrell and her five children claimed that Defendant Elias Montoya, while on duty as a New Mexico state police officer, violated their Fourth Amendment rights when he fired three shots at their minivan as it drove away from officers trying to effect a traffic stop. Officer Tony DeTavis pulled Farrell over for speeding. A few minutes after initiating the stop, DeTavis approached the minivan parked on the right shoulder of the highway and explained to Farrell that he was going to give her a citation. He gave her two options: pay the penalty of $126 within 30 days or see a Taos magistrate within 30 days. After an argument with the officer, Farrell refused to make a decision because she did not know where she would be in 30 days. As the officer went back to his car to call for help, Farrell drove off. After the officer pulled Farrell over again, things got chaotic: Farrell got in a scuffle with the officer who tried to arrest her. When the officer tried to pull Farrell out of the car, Farrell’s 14-year old son tried to fight off the officer, who then pulled out his taser. The officer then bashed out the windows on Farrell’s van after her family ran back into the van and locked the doors. The van began to drive away again. As the incident unfolded, Officer Montoya showed up and fired three shots at the van as Farrell sped off. Farrell was later arrested and charged. Three officers returned to their vehicles and pursued the Farrells down Highway 518, reaching speeds of 100 mph during the chase. When Farrell approached a more congested area, she weaved through traffic, driving on the wrong side of the road on several occasions. According to affidavits by Farrell and one of her younger children, 911 was called during the chase, and the family looked for a police station at which to pull over because they were afraid that the three officers would harm or kill them. More than four minutes after the chase began, the Farrells drove into a hotel parking lot and surrendered. On appeal it was undisputed that no bullet hit the minivan or the Farrells inside; Montoya’s affidavit states that he was aiming at the left rear tire. The Tenth Circuit held the district court should have granted Defendant summary judgment because the shots did not halt the Farrells’ departure and, because they were fleeing, they were not seized at the time Montoya fired his weapon, even if they had a subjective intent to submit to authority. View "Farrell v. Montoya" on Justia Law

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A jury convicted Karen Johnson of conspiring to distribute cocaine base. She appealed, arguing the district court violated the Sixth Amendment when it imposed on her the 120-month minimum sentence mandated in 21 U.S.C. 841(b)(1)(A)(iii) without submitting the drug-quantity issue to the jury for determination under the beyond-a-reasonable doubt standard. If she prevailed on her Sixth Amendment claim, Johnson argued a separate drug-quantity finding made by the district court (made solely for purposes of calculating a sentencing range under the Sentencing Guidelines) was not supported by sufficient evidence. In the alternative, Johnson argued her conviction had to be set aside because the district court used an improper evidentiary standard in allowing the government to adduce at trial intercepted cell phone communications. After review, the Tenth Circuit rejected Johnson’s challenges to her conviction and to the drug-quantity determination made by the district court for purposes of the Sentencing Guidelines. The district court did, however, plainly err in applying the mandatory minimum set out in 841(b)(1)(A)(iii) without submitting the quantity issue to the jury for resolution under the beyond-a-reasonable-doubt standard. Accordingly, the district court was affirmed in part and reversed in part and the matter remanded for further proceedings. View "United States v. Johnson" on Justia Law

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The Employee Retirement Income Security Act of 1974 (ERISA), generally exempts from its requirements “church plans”: employee-benefit plans established and maintained by churches for their employees. ERISA also extends that church-plan exemption to "principal-purpose" organizations. Catholic Health Initiatives (CHI), a nonprofit organization created to carry out the Roman Catholic Church’s healing ministry, operates 92 hospitals and numerous other healthcare facilities in 18 states. CHI offers a retirement plan for its employees, with more than 90,000 participants and beneficiaries, and nearly $3 billion in plan assets. Janeen Medina, a CHI employee, filed a class action, alleging that CHI’s retirement plan failed to satisfy the statutory criteria for the church-plan exemption. She contended that, since the plan did not qualify for the exemption, CHI should have complied with the reporting and funding requirements of ERISA. Medina also argued the individual defendants who administered the plan breached their fiduciary duties by failing to comply with ERISA. And, Medina argued, even if the CHI plan did qualify as a church plan, the exemption violated the Establishment Clause of the United States Constitution. The district court held that CHI’s plan was a church plan that qualified for the ERISA exemption. On appeal, the Tenth Circuit agreed, concluding that CHI’s plan satisfied the statutory requirements for the church-plan exemption as a proper principal-purpose organization. The ERISA exemption, moreover, does not run afoul of the United States Constitution’s Establishment Clause. View "Medina v. Catholic Health Initiatives" on Justia Law

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Petitioner Todd Newmiller and several of his friends went to a Colorado Springs strip club to celebrate Newmiller’s birthday. After leaving the club, they had a fight with another group of men, during which Newmiller fatally stabbed Anthony Madril in the heart. Newmiller was charged, convicted of second-degree murder, and sentenced to thirty-one years’ imprisonment. The Colorado Court of Appeals (CCA) affirmed his conviction and sentence. The Colorado Supreme Court denied certiorari review. Newmiller later challenged the constitutionality of his conviction under Colorado Rule of Criminal Procedure 35(c). After an evidentiary hearing, the state post-conviction court denied relief. The CCA affirmed the denial. And the Colorado Supreme Court again denied certiorari review. Newmiller next sought habeas relief at the federal district court, arguing his trial counsel were ineffective in violation of the Sixth Amendment because they failed to investigate, challenge, and rebut the prosecution’s expert medical testimony. The district court ruled trial counsel’s performance was deficient and the CCA’s conclusion to the contrary was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). But the district court denied relief because Newmiller failed to show counsel’s performance was prejudicial. Newmiller appealed, but finding no reversible error, the Tenth Circuit affirmed habeas relief. View "Newmiller v. Raemisch" on Justia Law