Latest 5 Cases: Defense Distributed v. Attorney General New Jersey (Civil Procedure), Delade v. Cargan (Civil Rights), Weimer v. County of Fayette ...

Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Defense Distributed v. Attorney General New Jersey

Docket: 19-1729

Opinion Date: August 25, 2020

Judge: Patty Shwartz

Areas of Law: Civil Procedure, Constitutional Law

Firearm interest organizations, together with one of their members, challenged the New Jersey Attorney General’s efforts to prevent unregistered and unlicensed persons from distributing computer programs that can be used to make firearms with a three-dimensional (3D) printer. The same claims by some of the same plaintiffs were already pending in Texas. The plaintiffs moved for a preliminary injunction in New Jersey, but the district court stayed the proceedings until the Texas action was resolved and dismissed the injunction motion. The Third Circuit dismissed an appeal. The stay and dismissal orders are not appealable. The orders here do not have the “practical effect of refusing an injunction.” The court removed the motion from its docket pending the stay, without prejudice, and did not substantively deny the request for an injunction or dismiss the claims. The stay does not impose “serious, perhaps irreparable consequence[s].” The court noted that the federal government and several state attorneys general are still preventing the dissemination of the files at issue; a stay that delays consideration of a request for injunctive relief is of no consequence because, even if the district court considered granted an injunction, that injunction would not alleviate the alleged censorship.

Delade v. Cargan

Docket: 19-1908

Opinion Date: August 25, 2020

Judge: Porter

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

In 2014, a sniper attacked Pennsylvania State Troopers at the Barracks, killing one and severely injuring the other. The next day, Troopers received a report that a man (DeLade) with a rifle was walking down a highway 15 miles from the Barracks. Trooper Cargan ran DeLade’s name through a criminal-history database and learned that the Escambia County, Florida sheriff’s department had issued a warrant for DeLade’s arrest, with a “no extradition” status. Cargan called and requested that the department change the status of the warrant to “full extradition.” The department complied. Troopers arrested DeLade, alleging that he had been charged with a crime in Florida. DeLade remained in pretrial detention for five days awaiting his extradition hearing—his first court appearance. Escambia County indicated that it would not extradite DeLade, so the Commonwealth dropped the arrest-prior-to-requisition charge. Another complaint was filed, charging him with being a prohibited person in possession of a firearm; the court released him on bail. DeLade later pleaded guilty to disorderly conduct. A court sentenced him to 12 months’ probation. DeLade filed suit under 42 U.S.C. 1983, asserting that Cargan violated his rights under the Fourth Amendment and the Due Process Clause by fabricating evidence to support the arrest-prior-to-requisition charge. The district court granted Cargan summary judgment on DeLade’s Fourth Amendment claims, finding that probable cause existed to justify charging DeLade as a prohibited person in possession of a firearm but declined to grant summary judgment or qualified immunity to Cargan on DeLade’s Fourteenth Amendment claim. The Third Circuit reversed in part. A claim alleging unlawful arrest and pretrial detention before a detainee’s first court appearance sounds in the Fourth Amendment, not the Due Process Clause.

Weimer v. County of Fayette

Docket: 19-1823

Opinion Date: August 25, 2020

Judge: D. Michael Fisher

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

In 2001, Connellsville police found Haith, lying dead on the sidewalk. District Attorney Vernon helped direct the investigation. Officers interviewed Weimer, who had what looked like blood on her clothes. Weimer told officers that she had given Haith a ride to a party. Others confirmed her story. None of the crime scene DNA matched Weimer. Months later, Beal, whom Weimer had previously dated, told police that Weimer and Gibson killed Haith. Reviewing autopsy photos, an investigator saw an apparent bite mark on Haith’s hand. A bite-mark expert reviewed Beal’s statement, photos of Haith’s hand, and teeth impressions from Gibson and Weimer. He concluded the bite mark matched Weimer and had occurred minutes before Haith’s death. Beal then changed his story. Months later, Blair contacted police, stating that a fellow inmate, Stenger, was involved. Despite three conflicting statements, officers charged Weimer with murder; Vernon approved. Beal recanted his previous statements, testifying that an officer “coaxed me.” The judge dismissed the charges. Investigators continued to investigate Weimer. Stenger told police he would implicate Weimer in exchange for a lighter sentence for unrelated convictions. Officers again charged Weimer. In 2006, a jury convicted her. In 2015, a judge vacated Weimer’s convictions. Significant exculpatory evidence was uncovered. Stenger conceded he knew nothing about Haith’s murder and that police had walked him through his testimony. The bite-mark expert disavowed his testimony. The charges against Weimer were “dropped with prejudice.” Weimer filed suit under 42 U.S.C. 1983. The Third Circuit, on interlocutory appeal, held that former D.A. Vernon is not protected by absolute immunity. Aside from Vernon’s approval of the criminal complaint, Weimer alleges Vernon engaged in investigatory conduct. Vernon is entitled to qualified immunity as to Weimer’s failure to intervene claim and as to Vernon’s alleged conduct in directing officers to investigate bite-mark evidence.

Hope v. Warden Pike County Correctional Facility

Docket: 20-1784

Opinion Date: August 25, 2020

Judge: Hardiman

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

In April 2020, a Pennsylvania district court ordered the release of 22 immigration detainees because of the COVID-192 pandemic, by granting a temporary restraining order without affording the government an opportunity to be heard. The Petitioners had filed a joint petition, alleging they were at risk of serious harm from COVID-19, although they vary in age from 28-69, have divergent health conditions, have unique criminal histories, and have diverse home and family situations. The Third Circuit vacated those orders, stating that exigent circumstances do not empower a court to jettison fundamental principles of due process or the rules of procedure. Considering all the responsive measures implemented to detect and to prevent the spread of the virus, the challenges of facility administration during an unprecedented situation, and the purposes served by detention, the petitioners did not show a substantial likelihood of success on their claim that the conditions of their confinement constitute unconstitutional punishment and did not establish that the government was deliberately indifferent toward their medical needs. The court too readily accepted the all-or-nothing request for immediate release and erred in not considering as part of the balancing of harm practical difficulties involved in locating and re-detaining the petitioners should the government ultimately prevail or should a petitioner abscond, commit a crime, or violate another term of release.

Romero v. Attorney General United States

Docket: 19-3550

Opinion Date: August 25, 2020

Judge: Rendell

Areas of Law: Immigration Law

Romero, a citizen of Mexico, sought admission to the U.S. at a Houston airport in 2011. Relying on a fraudulent passport, he claimed to be a U.S. citizen. Romero was removed to Mexico. In 2013, Romero re-entered and was again removed. In 2013, Romero re-entered and evaded officials for six years. An alien subject to reinstatement of a removal order may seek withholding of removal if the alien has a reasonable fear of persecution based on his race, religion, nationality, membership in a particular social group, or political opinion and may seek relief under the Convention Against Torture (CAT). During a “reasonable fear” interview, Romero, represented by counsel, testified that he is afraid to return to Mexico because Valencia, the father of Romero’s wife’s daughter and an alleged cartel member, will harm him. He stated that he has never been harmed, nor does he fear harm in Mexico based on his race, religion, sex, political opinion, or membership in a particular social group. Romero had been threatened by Valencia by phone but Valencia never acted on the threats. Romero did not report the threats to the police. An IJ affirmed the asylum officer’s determination that Romero did not have a reasonable fear of torture as required for CAT relief or reasonable fear of persecution as required for withholding of removal. The Third Circuit denied a petition for review, concluding that the findings were supported by substantial evidence.