Saturday, June 30, 2007

"Bong Hits 4 Jesus" not protected speech?

A recent USSC decision by Chief Justice Roberts held that school officials were entitled to qualified immunity for disciplining students who displayed a banner reading "Bong Hits 4 Jesus" because it violated school policy prohibiting illegal drug use.

Thursday, June 28, 2007

2d Cir. addresses "Zippo"

Scott v. Harris - criminals, lies, and videotapes

The USSC recently held in Scott v. Harris, 127 S. Ct. 1769 (2007), that a section 1983 plaintiff could not survive summary judgment by making claims that were inconsistent with the video footage from the police cruisers that chased him at speeds of up to 100 miles an hour. Justice Scalia authored the decision, which held that the officer's attempts to force the suspect off the road were reasonable in light of a dangerous high-speed chase that posed substantial and immediate risk to others.

Scott has been cited by several lower courts. For example, in Miller v. Jensen, 2007 WL 1574761 (N.D. Okla.) the Court viewed patrol car footage that eliminated any "genuine" dispute of fact as to what transpired. The Court held that there was no constitutional violation and that it was reasonable for the officer, after having engaged in a 7 minute high-speed chase which ended on foot, to strike the suspect twice in the face with a gun, aid in tackling the suspect, and urging another officer to use pepper spray to assist in gaining compliance from the suspect in hand-cuffing him. ABL now lays claim to the title of "New York blogger with the most up-to-date coverage of jurisprudence from the Northern District of Oklahoma."

Not only does a patrol car camera assist in defending excessive force claims by suspects, but the lack of footage can be detrimental if the patrol car is equipped but no footage is produced. The Seventh Circuit Court of Appeals recently cited Scott and noted that the absence of video footage from a patrol car could provide circumstantial evidence against the officer. Steen v. Myers, 486 F.3d 1017 (7th Cir. 2007). Steen went on to affirm defendants' summary judgment motion noting that the standard under County of Sacramento v. Lewis, 523 U.S. 833 (1998) "set[s] the bar awfully high" by requiring "conscience-shocking behavior and an intent to cause harm unrelated to a legitimate government interest."

Below is the footage from two different patrol cars and a news report on this case.



Thursday, June 14, 2007

Blog of the Week - PhilaLawyer.net

Thursday, June 07, 2007

I fought the law, and the law relented somewhat

Several recent decisions from DC Courts have resticted the ability of the federal government to refuse compliance with subpoenas. Federal agencies often claim that they are not required to comply based on citation to Touhy (i.e., Touhy v. Ragen, 340 U.S. 462, 468 (1951)) regulations. They also often argue that the federal government is not a "person" within the meaning of Rule 45. Judge Urbina of the DC District recently issued a decision in Securities Exchange Commission v. Selden (In re Subpoenas), __ F. Supp. 2d __, 2007 WL 1241862, at *2 (D.D.C. 2007), which held that “Touhy in no way stands for the proposition that agency regulations alter the procedures set forth in the Federal Rules of Civil Procedure or that agency regulations can preclude the production of documents ‘that are relevant to a judicial proceeding.’” and that “[t]o the extent that the FDA’s [Touhy] regulations prohibit that which the Federal Rules expressly permit . . . those regulations fail." Thanks to Cale Keable in Skadden's Boston office for a fine job litigating Selden (which is linked above).

Similarly, District of Columbia Circuit Court of Appeals recently held that a “federal court litigant . . . can seek to obtain the production of documents from a federal agency by means of a federal subpoena . . . . [and that] neither the Federal Housekeeping Statute nor the Touhy decision authorizes a federal agency to withhold documents from a federal court." In re Apollo Group, Inc. Sec. Litig., 2007 WL 778653, at *5 (D.C. Cir. 2007) (“[I]n Yousuf, the D.C. Circuit held that ‘the Government is a ‘person’ subject to subpoena under Rule 45 regardless whether it is a party to the underlying litigation.‘”).

ABL recently ran into an obstinate federal agency that, even after Selden and In re Apollo, claimed that the federal government was not a person within the meaning of Rule 45 and that its Touhy regulations allowed it to refuse compliance with a subpoena (which was signed by a federal judge in this case). After considerable discussion (and the drafting of a motion to compel that never got the chance to be e-filed), the federal agency relented somewhat by producing witness statements that it had obtained close in time to the subject event.