Unpublished decisions
Cunningham v. City of Albuquerque, 2015 WL 3875537 (6/24/15) (N.M.) (unpub'd) - An example of the low threshold to create reasonable suspicion. Even under Mr. Cunningham's version of events in this § 1983 suit, there was reasonable suspicion where: a man approached Mr. Cunningham who was sitting in the passenger seat of a truck parked by a dumpster behind a pizza parlor in a high-crime area; the man asked Mr. Cunningham to hold a pizza while he went back to the pizza parlor to get his forgotten change; when the man returned he noticed a police officer, said he had warrants, grabbed the pizza and left. The 10th says that, from an officer's perspective, this could have been a drug deal in an out-of-the-way spot: an exchange of something through the truck window and one person in the transaction fleeing when he spots an officer.
U.S. v. Rosemond, 2015 WL 3895151 (6/25/15) (Ut.) (unpub'd) - The 10th holds Mr. Rosemond's foray to the S. Ct. did him no good, thanks to plain error review. At trial, Mr. Rosemond argued the court should instruct the jury that, to convict him of aiding and abetting a 924(c) count, he had to take some action to facilitate or encourage the use of the firearm in the drug transaction. Eventually, the S. Ct. rejected that argument. A conviction could result from facilitating either the drug transaction or the use of the firearm. The Court found problems with a part of the instruction Mr. Rosemond did not object to at trial. The instruction did not make clear jurors had to find Mr. Rosemond possessed advance knowledge of his accomplice's gun and chose to participate in the crime anyway. 134 S. Ct. 1240 (2014). Since Mr. Rosemond did not object to the problematic part of the instructions, he was stranded in the plain-error wasteland. The government could not be faulted for failing to raise plain error in the prior 10th appeal because Mr. Rosemond didn't clearly challenge the erroneous part of the instruction until he was before the S. Ct. where the government did call for plain-error review. The 10th finds Mr. Rosemond failed to meet the affected-the-verdict, 3rd-prong of the plain error-reversal test. The jury found him guilty of being a felon in possession of ammunition without any instruction on aiding and abetting. So, under the facts of the case, where the only ammunition was in the gun of the person who fired the gun during the drug deal, the jury necessarily found Mr. Rosemond was the actual shooter. So Mr. Rosemond could not show the improper aiding-and-abetting instruction affected the 924(c) verdict. This was so, even though the jury sent out a note asking how they should fill out a verdict form if they found aiding and abetting. It sounds like the S. Ct. spent a lot of effort on a case with no chance whatsoever of affecting the ultimate outcome of Mr. Rosemond's case.
Torres-Ledesma v. Lynch, 2015 WL 3895321 (6/25/15) (unpub'd) - The 10th holds the BIA erred when it assumed Mr. Torres-Ledesma was convicted of the felony subdivision of the Oklahoma drug statute. That statute provided for a civil fine or a felony conviction. It was therefore divisible under Descamps. The BIA should have followed the modified categorical approach to see which portion of the statute Mr. Torres-Ledesma was punished under.
King v. Hill, 2015 WL 3875551 (6/24/15) (Okl.) (unpub'd) - The 10th affirms a denial of summary judgment in an officer-shooting, § 1983 case. Officer Hill shot Mr. King, who was standing in front of his home, from about 70 yards away. The 10th finds the evidence, viewed in the light most favorable to Mr. King, was enough to support an excessive force finding where: (1) the alleged crime being investigated was not all that severe (Mr. King, who had a history of violent behavior and was bipolar and off his meds, had allegedly broken a water line and was trying to hurt a horse, and acted agitated, uncooperative and threatening after officers arrived; for the latter behavior he plead no contest to threatening a violent act, a misdemeanor, and received a suspended sentence); (2) Mr. King did not pose a serious threat to any officer (witnesses said Mr. King was obviously unarmed with both hands visible, the report to the dispatcher indicated there were no weapons in the home and Mr. King's threat that he would use black powder in the home to blow up everyone did not pose an immediate threat); and (3) some witnesses supported the claim that Mr. King did not actively resist (i.e., he attempted to raise his arms as requested by the officers). The constitution clearly prohibits an officer from seizing an unarmed, nondangerous suspect by shooting him.
Wigglesworth v. Pagel, 2015 WL 3853286 (6/23/15) (Col.) (unpub'd) - A Colorado prison had to follow disciplinary procedures required by Alaska law with respect to an Alaskan prisoner transferee. His request for wiping out his disciplinary record was not moot because he alleged it would cause harm to his future parole opportunities and in future disciplinary proceedings
U.S. v. Rosemond, 2015 WL 3895151 (6/25/15) (Ut.) (unpub'd) - The 10th holds Mr. Rosemond's foray to the S. Ct. did him no good, thanks to plain error review. At trial, Mr. Rosemond argued the court should instruct the jury that, to convict him of aiding and abetting a 924(c) count, he had to take some action to facilitate or encourage the use of the firearm in the drug transaction. Eventually, the S. Ct. rejected that argument. A conviction could result from facilitating either the drug transaction or the use of the firearm. The Court found problems with a part of the instruction Mr. Rosemond did not object to at trial. The instruction did not make clear jurors had to find Mr. Rosemond possessed advance knowledge of his accomplice's gun and chose to participate in the crime anyway. 134 S. Ct. 1240 (2014). Since Mr. Rosemond did not object to the problematic part of the instructions, he was stranded in the plain-error wasteland. The government could not be faulted for failing to raise plain error in the prior 10th appeal because Mr. Rosemond didn't clearly challenge the erroneous part of the instruction until he was before the S. Ct. where the government did call for plain-error review. The 10th finds Mr. Rosemond failed to meet the affected-the-verdict, 3rd-prong of the plain error-reversal test. The jury found him guilty of being a felon in possession of ammunition without any instruction on aiding and abetting. So, under the facts of the case, where the only ammunition was in the gun of the person who fired the gun during the drug deal, the jury necessarily found Mr. Rosemond was the actual shooter. So Mr. Rosemond could not show the improper aiding-and-abetting instruction affected the 924(c) verdict. This was so, even though the jury sent out a note asking how they should fill out a verdict form if they found aiding and abetting. It sounds like the S. Ct. spent a lot of effort on a case with no chance whatsoever of affecting the ultimate outcome of Mr. Rosemond's case.
Torres-Ledesma v. Lynch, 2015 WL 3895321 (6/25/15) (unpub'd) - The 10th holds the BIA erred when it assumed Mr. Torres-Ledesma was convicted of the felony subdivision of the Oklahoma drug statute. That statute provided for a civil fine or a felony conviction. It was therefore divisible under Descamps. The BIA should have followed the modified categorical approach to see which portion of the statute Mr. Torres-Ledesma was punished under.
King v. Hill, 2015 WL 3875551 (6/24/15) (Okl.) (unpub'd) - The 10th affirms a denial of summary judgment in an officer-shooting, § 1983 case. Officer Hill shot Mr. King, who was standing in front of his home, from about 70 yards away. The 10th finds the evidence, viewed in the light most favorable to Mr. King, was enough to support an excessive force finding where: (1) the alleged crime being investigated was not all that severe (Mr. King, who had a history of violent behavior and was bipolar and off his meds, had allegedly broken a water line and was trying to hurt a horse, and acted agitated, uncooperative and threatening after officers arrived; for the latter behavior he plead no contest to threatening a violent act, a misdemeanor, and received a suspended sentence); (2) Mr. King did not pose a serious threat to any officer (witnesses said Mr. King was obviously unarmed with both hands visible, the report to the dispatcher indicated there were no weapons in the home and Mr. King's threat that he would use black powder in the home to blow up everyone did not pose an immediate threat); and (3) some witnesses supported the claim that Mr. King did not actively resist (i.e., he attempted to raise his arms as requested by the officers). The constitution clearly prohibits an officer from seizing an unarmed, nondangerous suspect by shooting him.
Wigglesworth v. Pagel, 2015 WL 3853286 (6/23/15) (Col.) (unpub'd) - A Colorado prison had to follow disciplinary procedures required by Alaska law with respect to an Alaskan prisoner transferee. His request for wiping out his disciplinary record was not moot because he alleged it would cause harm to his future parole opportunities and in future disciplinary proceedings
posted by Anonymous at 5:32 PM
<< Home