Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

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United States v. Gunn

Docket: 20-1959

Opinion Date: November 20, 2020

Judge: Frank Hoover Easterbrook

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

Federal judges may release prisoners for compassionate reasons. Previously, that authority required a motion by the Bureau of Prisons. The 2018 First Step Act created a judicial power to grant compassionate release on a prisoner’s own request; the prisoner must first allow the Bureau to review the request and make a recommendation (or let 30 days pass in silence), 18 U.S.C. 3582(c)(1)(A). Gunn’s sentence for drug and firearm offenses runs into 2024. She sought release under section 3582(c)(1)(A), arguing that, because of her age (62) and medical condition, she faces extra risks should she contract COVID-19. The district court denied relief, citing the requirement ”that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." The Sentencing Commission, which lacks a quorum, has not updated its policy statements to implement the Act. The most recent Guidelines Manual refers to a “motion of the Director of the Bureau of Prisons" and covers only prisoners who suffer from certain medical problems. The Seventh Circuit vacated. The Manual lacks an applicable policy statement; any decision is “consistent with” a nonexistent policy. “Consistent with” differs from “authorized by.” While a judge acting on a prisoner’s motion may lack the Director's advice, contemplated by Manual, about whether an “extraordinary and compelling reason” exists, the First Step Act does not muzzle the Director. Until an amended statement is adopted, district judges must operate under the statutory criteria: ”extraordinary and compelling reasons.”

Fields v. City of Chicago

Dockets: 17-3079, 17-3125, 18-1207

Opinion Date: November 20, 2020

Judge: ROVNER

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

Fields filed claims under 42 U.S.C. 1983 and state law against Chicago, Chicago police officers, and former Cook County prosecutors. Fields alleged that the defendants violated his constitutional rights and state law by fabricating evidence and withholding exculpatory evidence in a criminal investigation that resulted in Fields’s conviction for a 1984 murder. A retrial resulted in an acquittal, 12 years after the original trial. The individual who had implicated Fields in the crimes eventually confessed to committing the murder. Fields sought a certificate of innocence, which was denied. After a third trial, the jury found in favor of Fields against Detectives O’Callaghan and Murphy on one of his section 1983 claims, against Chicago on Fields’s Monell liability claim, and against O’Callaghan on a claim for intentional infliction of emotional distress, and found for the defendants on the remaining claims. The jury awarded Fields $22 million in compensatory damages and punitive damages of $30,000 against O’Callaghan and $10,000 against Murphy. The Seventh Circuit affirmed, rejecting the detectives’ challenges to evidentiary rulings concerning wiretaps, character evidence, evidence of Fields’s 1972 murder conviction, and evidence concerning prison incidents. The evidence allowed a jury to conclude that the city had failed to take the necessary steps to address an unconstitutional practice of using street files and that there was a “systemic underproduction of exculpatory materials to prosecutors and defense counsel.”

Makhsous v. Daye

Docket: 20-1624

Opinion Date: November 20, 2020

Judge: KANNE

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law

Makhsous owned three Wisconsin residential care facilities. In 2015, the Wisconsin Department of Health Services (DHS) found that two of Makhsous’s facilities did not comply with Wisconsin law. Daye is the supervisor of the Aging and Disability Resource Center (ADRC) of Marinette County, which makes recommendations to individuals who inquire about residential care facilities. It does not place individuals in care facilities, monitor care facilities, or issue citations or sanctions to care facilities. In 2016, the ADRC began publishing a “facility directory” for potential residents. Under Wisconsin’s ADRC Operational Practice Guidelines, the directory cannot include facilities that have been found in violation of law. Makhsous filed suit, alleging that Daye violated the Due Process and Equal Protection Clauses by failing to include Makhsous’s facilities in the ADRC directory and refusing to refer individuals to her facilities. The Seventh Circuit affirmed summary judgment in favor of Daye. Makhsous did not show that Daye harmed a constitutionally protected property interest or discriminated against her. The ADRC directory did not include Makhsous’s facilities because they were found deficient by DHS and because Makhsous failed to ask the ADRC to include them. Makhsous had no rebuttal evidence showing that Daye failed to include her facilities in the directory because of her race.