unpublished decisions

U.S. v. Garcia-Escalera, 2015 WL 7770205 (12/3/15) (Okl.) (unpub'd) - Mr. Garcia-Escalera relied on Franks to challenge a search warrant affidavit. The district court rejected that claim and also added that the affidavit was sufficient on its face to establish probable cause. On appeal Mr. Garcia-Escalera argued there was insufficient corroboration of the affiant's claims to establish probable cause. The 10th holds that under the old version of Fed, R. Crim. P. 12(e), Mr. Garcia-Escalera waived this argument because he didn't raise it below and the district court's sufficiency conclusion likely did not address Mr. Garcia-Escalera's corroboration issue. In a footnote, the 10th suggests that maybe revised rule 12(b)(3) now does not call for the harsh conclusion that a forgotten issue is waived. Maybe it would just be forfeited, [meaning plain error review might be available]. The old rule referred to a party waiving, absent good cause. But now the rule only refers to a suppression issue raised beyond the district court's motions deadline as being "untimely."

Galbreath v. the City of Oklahoma City, 2015 WL 7873587 (12/4/15) (Okl.) (unpub;d) - The 10th holds a disorderly conduct ordinance that prohibited "causing public alarm without justification," was not unconstitutionally vague as applied to Mr. Galbreath. As previously reported, the 10th reversed a summary judgment grant. The case went to trial and Mr. Galbreath lost. As you recall, an officer answered a 911 call to a park where he found Mr. Galbreath singing or humming and twirling and spinning a stick [Mr. Galbreath said it was a cane]. According to the officer, Mr. Galbreath was unsteady on his feet and speaking incoherently. Mr. Galbreath explained that he was doing his exercises as part of physical therapy for a bone disease affecting his hips damaged by his former career as a ballet dancer, and giving candy to children who answered his questions correctly. Mr. Galbreath became agitated at the officer's interrogation. The officer arrested Mr. Galbreath, but the city later dropped the charges. The 10th concludes a reasonable jury could conclude Mr. Galbreath did not provide justification for his actions. The 10th finds the giving candy to children "potentially troubling" and finds that did not explain his stick twirling, singing and behaving erratically.

Han-Noggle v. City of Albuquerque, 2015 WL 7873438 (12/4/15) (N.M.) (unpub'd) - The 10th affirms the dismissal on qualified immunity grounds of the lawsuit by the family of deceased attorney Mary Han regarding the APD investigation of Ms. Han's death [immediate assumption it was a suicide; no interviews of neighbors, family and friends; not collecting physical evidence; not preserving fingerprints; no attempt to identify the last person who saw Ms. Han alive; 26 to 50 people trampling the scene; not inventorying Ms. Han's diamond rings, cell phone and laptop, all of which later disappeared]. The plaintiffs alleged APD's conduct deprived them of access to the courts to pursue a wrongful death action. The 10th finds no basis for relief because the plaintiffs did not adequately describe what kind of wrongful death action they could have filed. The 10th says the family did not provide a theory as to how Ms. Han died or who allegedly caused her death. The 10th also affirms the attorney fees' award against the plaintiffs, which the district court justified by concluding one of the 5 claims was frivolous.

Robinette v. Fender, 2015 WL 7753352 (12/2/15) (Col.) (unpub'd) - The 10th refuses to consider an issue where the opening brief contained "only conclusory allegations, a few statutory references, and a handful of case citations with no analysis."