Koch v. City of Dell City, 2011 WL 5176164 (11/2/11) (Okl.) (Published) - The 10th affirms granting qualified immunity to an officer, while raising some interesting questions regarding a detainee's right to refuse to answer questions. Ultimately, the 10th rules it was not clearly established the plaintiff had a right to refuse to answer the officer's questions while detained during a Terry stop. The officer's encounter with the plaintiff became an investigative detention where the officer went to the plaintiff's home to check on the welfare of an elderly woman pursuant to a court "pick-up" order, engaged the plaintiff to check on the woman and to try to determine the woman's whereabouts. It was not clear that the plaintiff had a right to refuse to answer the officer's questions regarding the woman's whereabouts under the 4th, 1st or 5th amendments, once she was validly stopped pursuant to Terry. Maybe the 4th might allow a requirement to answer questions on other topics in addition to identity. There might not be a 1st amendment right not to speak during a Terry stop. While the officer may have made it impossible for the plaintiff to invoke her right to remain silent under the 5th, the 5th right may only be a trial right. So, here, a reasonable officer could believe the plaintiff was withholding information she was lawfully required to convey regarding the woman's whereabouts. Consequently there was probable cause to arrest the plaintiff for obstructing an officer when she refused to reveal the woman's location. The plaintiff's superficial abrasions and numbness in her wrist and forearm were de minimis injuries that did not qualify her for relief due to the manner she got handcuffed.
On the good news side, the officer did not have probable cause to arrest for obstruction based on the plaintiff telling the officer to get off her property and that he should talk to her attorney. The officer had no way of knowing the attorney was ignorant of the missing woman's whereabouts.
Milligan v. Archuleta, 2011 WL 5148966 (11/1/11) (Col.) (Published) - The d. ct. erred in dismissing the plaintiff prisoner's retaliation claim. While the termination of his employment did not trigger due process protection, it could still constitute a First Amendment violation if the prisoner lost his job in retaliation for filing a grievance. And the d. ct. erred in not allowing the plaintiff to amend his petition to show his classification as an escape risk lacked a rational relationship to a legitimate penological interest.
U.S. v. Molina-Chavez, 2011 WL 5248226 (11/4/11) (Okl.) (unpub'd) - The rule of lenity does not apply to the construction of an order of supervised release. The N.M. order that both prohibited the defendant from reentering the U.S. and required him to remain within the N.M. district did not constitute a "prior authorization" to reenter the U.S. It was not "express consent" required by 8 U.S.C. § 1326(a)(2).
U.S. v. Lehi, 2011 WL 5222885 (11/3/11) (Col.) (unpub'd) - Spitting constitutes "physical contact" under § 111(a) that raises a simple assault on a federal officer to a felony. Spitting on a person is an offensive touching that is not a de minimis form of physical contact. This might be good news for somebody when the government tries to use a § 111(a) offense as a predicate crime of violence.
U.S. v. Sussman, 2011 WL 5148967 (11/1/11) (Col.) (unpub'd) - A challenge to the government's usual delay prosecuting supervised release violations until the defendant completely serves his state sentence goes by the wayside. The fact that the federal detainer caused worsening of the defendant's conditions in the state facility did not trigger due process protections. Fed. R. Crim. P. 32.1's requirement to take an alleged supervised release violator promptly to a magistrate judge did not apply until the defendant was in federal custody. He was not in "technical" federal custody when the detainer was filed.
Hooper v. Workman, 2011 WL 5148969 (11/1/11) (Okl.) (unpub'd) - The 10th keeps the Okl. death train rolling. The 10th refuses to overturn a finding that the petitioner was competent when he waived his right to challenge his death sentence. At the time of the waiver, he was depressed, but not taking any medications. After he started taking antidepressants, he decided he wanted to challenge his sentence. Too late. His prior waiver was perfectly valid. Just because he changed his mind after meds doesn't mean he was incompetent without the meds.
On the good news side, the officer did not have probable cause to arrest for obstruction based on the plaintiff telling the officer to get off her property and that he should talk to her attorney. The officer had no way of knowing the attorney was ignorant of the missing woman's whereabouts.
Milligan v. Archuleta, 2011 WL 5148966 (11/1/11) (Col.) (Published) - The d. ct. erred in dismissing the plaintiff prisoner's retaliation claim. While the termination of his employment did not trigger due process protection, it could still constitute a First Amendment violation if the prisoner lost his job in retaliation for filing a grievance. And the d. ct. erred in not allowing the plaintiff to amend his petition to show his classification as an escape risk lacked a rational relationship to a legitimate penological interest.
U.S. v. Molina-Chavez, 2011 WL 5248226 (11/4/11) (Okl.) (unpub'd) - The rule of lenity does not apply to the construction of an order of supervised release. The N.M. order that both prohibited the defendant from reentering the U.S. and required him to remain within the N.M. district did not constitute a "prior authorization" to reenter the U.S. It was not "express consent" required by 8 U.S.C. § 1326(a)(2).
U.S. v. Lehi, 2011 WL 5222885 (11/3/11) (Col.) (unpub'd) - Spitting constitutes "physical contact" under § 111(a) that raises a simple assault on a federal officer to a felony. Spitting on a person is an offensive touching that is not a de minimis form of physical contact. This might be good news for somebody when the government tries to use a § 111(a) offense as a predicate crime of violence.
U.S. v. Sussman, 2011 WL 5148967 (11/1/11) (Col.) (unpub'd) - A challenge to the government's usual delay prosecuting supervised release violations until the defendant completely serves his state sentence goes by the wayside. The fact that the federal detainer caused worsening of the defendant's conditions in the state facility did not trigger due process protections. Fed. R. Crim. P. 32.1's requirement to take an alleged supervised release violator promptly to a magistrate judge did not apply until the defendant was in federal custody. He was not in "technical" federal custody when the detainer was filed.
Hooper v. Workman, 2011 WL 5148969 (11/1/11) (Okl.) (unpub'd) - The 10th keeps the Okl. death train rolling. The 10th refuses to overturn a finding that the petitioner was competent when he waived his right to challenge his death sentence. At the time of the waiver, he was depressed, but not taking any medications. After he started taking antidepressants, he decided he wanted to challenge his sentence. Too late. His prior waiver was perfectly valid. Just because he changed his mind after meds doesn't mean he was incompetent without the meds.
posted by Anonymous at 11:47 AM
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