Thursday, November 17, 2011

Brown v. Montoya, 2011 WL 5346064 (11/8/11) (N.M.) (Published) - It is a clearly established violation of procedural due process for a probation officer to wrongly direct a probationer to register as a sex offender and wrongly place him in the sex offender probation unit without a hearing and without proper notice. Due process is implicated where there is "stigma plus"---damage to reputation plus an alteration in legal status. In this case, there was stigma and either the requirement to register or the additional restrictions of being in a sex offender probation unit triggers due process protections. Here the probation officer claimed the plaintiff was subject to sex offender treatment under New Mexico law because he was convicted of false imprisonment of a minor. But there was absolutely no evidence that a minor was the victim of the plaintiff's offense. And the plaintiff adequately alleged the officer's state of mind as intentional and in reckless disregard of the plaintiff's constitutional rights. The 10th also held the plaintiff did not sufficiently allege that Joe Williams, the secretary of the department of corrections, was individually responsible for a policy that caused the due process violations.

Reedy v. Werholz, 2011 WL 5433798 (11/10/11) (Kan.) (Published) - The 10th finds there can be no legitimate penological interest in the prison forcing inmates who have life sentences without parole to keep 10% of funds received in a savings account so that the prisoner has funds when s/he is released. There is a valid interest for inmates who will be released some day. Unfortunately, while some of the non-lifers of the class action exhausted their administrative remedies, none of the lifers did. So everyone's out of luck.

U.S. v. Santos-Santos, 2011 WL 5433730 (11/10/11) (Colo.) (unpub'd) - California's assault with a dangerous weapon offense is a "crime of violence" under ยง 2L1.2. The mens rea is sufficient to have as an element the use of force, where a California S. Ct. decision described the mens rea as being aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. The decision went on to explain the intent was a general intent, which the 10th interpreted to mean it was not a lesser mens rea of recklessness. The 10th stressed the acts that constitute the assault must be intentional. Battery would be the "natural but unfulfilled" consequence of the acts.

U.S. v. Salazar, 2011 WL 5383928 (11/9/11) (Kan.) (unpub'd) - The 10th finds the d. ct. did consider the defendant's leniency arguments, even though the d. ct. said: "You know there are so many things I would have considered had he not absconded. I might have considered other things. But once he broke his promise to me, I would never consider a downward variance under those circumstances."