Believe All Women or Support Joe Biden?

SHERRY F. COLB

Cornell Law professor Sherry F. Colb comments on recent sexual assault allegations against presumptive Democratic nominee Joe Biden. Colb argues that if the only choices for President are Donald Trump and Joe Biden, the sexual assault allegation against the latter will take second fiddle to the need to defeat the former and defends this perspective as not manifesting hypocrisy or indifference to sexual assault or other intimate violence.

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Hope v. Warden Pike County Correctional Facility

Docket: 20-1784

Opinion Date: April 21, 2020

Judge: Smith

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Immigration Law

On April 3, 2020, 20 immigration detainees filed a habeas petition (28 U.S.C. 2241), seeking immediate release, claiming that due to underlying health conditions, their continued detention during the COVID-19 pandemic puts them at imminent risk of death or serious injury. The district court found that the petitioners face irreparable harm and are likely to succeed on the merits, that the government would “face very little potential harm” from their immediate release, and that “the public interest strongly encourages Petitioners’ release.” Without waiting for a response from the government, the court granted a temporary restraining order (TRO) requiring the release. The government moved for reconsideration, submitting a declaration describing conditions at the facilities, with details of the petitioners’ criminal histories. The court denied reconsideration, stating that the government had failed to demonstrate a change in controlling law, provide previously unavailable evidence, or show a clear error of law or the need to prevent manifest injustice. The court extended the release period until the COVID-19 state of emergency is lifted but attached conditions to the petitioners’ release. The government reports that 19 petitioners were released; none have been re-detained. The Third Circuit granted an immediate appeal, stating that the order cannot evade prompt appellate review simply by virtue of the label “TRO.” A purportedly non-appealable TRO that goes beyond preservation of the status quo and mandates affirmative relief may be immediately appealable under 28 U.S.C. 1292(a)(1).

Fogle v. Sokol

Docket: 19-1066

Opinion Date: April 21, 2020

Judge: Matey

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

In 1976, the body of 15-year-old “Kathy” was found near her Indiana County, Pennsylvania home. Kathy’s death involved a brutal assault, rape, and a gunshot to the head. Kathy's sisters, ages nine and 12, stated that she had gotten into a car with a man with blue eyes, black hair that came below his ears and curled at the ends, sideburns, heavy eyebrows, and a heavy mustache. Fogle had “straight reddish-blonde hair that dropped down his back and a matching, full beard that reached his waist.” After three years, Fogle became a suspect because a psychiatric patient described seeing Kathy get in a car with Fogle and his brother. The story was largely inconsistent with statements by Kathy’s sisters. Jailhouse informants were recruited and counseled by law enforcement with promises of leniency. The prosecutors “either knew about, encouraged, or permitted” this strategy. A jury found Fogle guilty of second-degree murder. In 2015, Fogle obtained DNA evidence excluding both himself and his brother as the source of semen collected from Kathy. His conviction was vacated. The Commonwealth declined to pursue new charges, describing the case as lacking “prosecutorial merit.” Fogle, having spent three decades in prison, sued the prosecutors and Indiana County under 42 U.S.C. 1983. The Third Circuit affirmed the denial of their motions to dismiss based on absolute immunity. Only truly prosecutorial functions, not investigative conduct, justify complete protection from suit. Fogle’s complaint alleges actions that fall outside the narrow doctrine of absolute immunity.

James v. New Jersey State Police

Docket: 18-1432

Opinion Date: April 21, 2020

Judge: Porter

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Stephens called 911 and reported that Gibbons hit her and had a gun in his truck. The police responded. Stephens obtained a temporary restraining order, prohibiting Gibbons from possessing firearms and from returning to Stephens’s house. The next day, Gibbons went to Stephens’s house. Stephens was talking on the phone; the friend called the police. Gibbons left Stephens’s house. Trooper Conza arrived. Stephens stated that Gibbons had waved a gun throughout their argument. Conza told Stephens to go to the police barracks and reported over the radio that Gibbons had brandished a firearm. Conza, with Troopers Bartelt and Korejko, visited the nearby home of Gibbons’s mother, James. James stated that she did not know where Gibbons was and that he might be off his schizophrenia medication. While driving to the barracks, Stephens saw Gibbons walking alongside the road and called 911. The Troopers responded. Bartelt parked his car and, exiting, observed that Gibbons was pointing a gun at his own head. Bartelt drew his weapon, stood behind his car door, and twice told Gibbons to drop his weapon. Gibbons did not comply. Bartelt shot Gibbons twice within seconds of stopping his car. Gibbons died that night. In James’ suit under 42 U.S.C. 1983, the Third Circuit held that Bartelt is entitled to qualified immunity because he did not violate Gibbons’s clearly established rights. Bartelt’s pre-standoff knowledge of Gibbons differs from that of officers involved in cited cases. Bartelt could reasonably conclude that Gibbons posed a threat to others.