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Weekly Case Digests — Aug. 24-28, 2015

By: WISCONSIN LAW JOURNAL STAFF//August 28, 2015//

Weekly Case Digests — Aug. 24-28, 2015

By: WISCONSIN LAW JOURNAL STAFF//August 28, 2015//

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7TH CIRCUIT COURT OF APPEALS – CIVIL

Civil

7th Circuit Court of Appeals

Officials: EASTERBROOK, SYKES, and HAMILTON, Circuit Judges

Lack of Probable Cause – Abuse of Discretion

No. 14-1347

Carlton Hart v. Christine Mannina

Although disturbing, videotaped police investigation airing on national television where appellant was wrongfully arrested did not violate appellant constitutional rights.

“There are many troubling aspects of IMPD’s investigation, and this case should warn police departments about having their detectives moonlight as television stars. But on this record, we must affirm. Even the troubling aspects of the investigation do not add up to evidence of a violation of Hart’s constitutional rights. A reasonable trier of fact could not find that police lacked probable cause to arrest him. Nor could a reasonable jury find that the lead detective, defendant Christine Mannina, made false or misleading statements in her probable cause affidavit. Four surviving witnesses from the home invasion separately identified Hart as one of the men who attacked them. None of the police had any reason to doubt these identifications when they arrested Hart.”

Full Text

Civil

7th Circuit Court of Appeals

Officials: EASTERBROOK, RIPPLE, and TINDER, Circuit Judges

State Law Rights – Collective Bargaining – Prison Litigation Reform Act

No. 10-2746

Jimmy Doe v. Teamsters Local 700

District court order approving staffing plan reversed.

“The lack of factual findings in this case—both the lack of findings about the existence of a violation and the absence of findings about the necessity for a particular remedy to cure any violation—contrasts with the elaborate findings the district court made in Brown v. Plata, 131 S. Ct. 1910 (2011), the Supreme Court’s only extended consideration of §3626(a) and (b). The Justices divided five to four about whether even 184 pages of findings and analysis by a district court satisfied the statutory burden; the difference from this case could not be more stark. It follows that the order approving the new staffing plan must be reversed. The plan has been in effect for years, and restoring the Union’s members to their old positions would not be possible, because those positions are gone. But other forms of relief, including financial compensation and preferential hiring for future openings, may be appropriate, and we leave that subject to the district court on remand.”

Full Text

Civil

7th Circuit Court of Appeals

Officials: POSNER, KANNE, and HAMILTON, Circuit Judges

Social Security Benefits

No. 15-1727

Kyle Alaura v. Carolyn Colvin

Denial of appellant application for benefits reversed due to Administrative law judge’s incomprehensive analysis and reliance on questionable statistics.

“Asked at argument where the job figures we just quoted from the administrative law judge’s opinion came from, the Social Security Administration’s lawyer said she had no idea and added that the agency’s lawyers are forbidden to speak to vocational experts—which we find hard to believe, and which if true makes no sense at all. The administrative law judge said she’d “determined that the vocational expert’s testimony is consistent with the information contained in the Dictionary of Occupational Titles” (U.S. Department of Labor, Dictionary of Occupational Titles (4th ed. 1991)), but she was wrong, because the DOT doesn’t contain statistics. Anyway the DOT has been superseded by the O*NET (Occupational Information Network)—a fact ignored by the Social Security Administration’s vocational experts and administrative law judges.”

Full Text

Civil

7th Circuit Court of Appeals

Officials: FLAUM, MANION, and HAMILTON, Circuit Judges

Student Loan – Breach of Contract

No.14-14806

Bryana Bible v. United Student Aid Funds, Inc.

Dismissal of appellant claim against guaranty agency for assessment of collection costs despite appellant compliance with all terms of rehabilitation agreement improper and not preempted by Higher Education Act.

“We are skeptical of this legal principle (our court has never adopted it), but we need not decide that question now because it is not presented by Bible’s allegations. USA Funds’ argument simply mischaracterizes Bible’s theory. Her RICO claim is not based on regulatory non-compliance. It is based on alleged misrepresentations and deception in the default letter and the rehabilitation agreement. Even if the regulations permitted USA Funds to assess the collection costs, Bible alleges that USA Funds committed fraud by concealing that these collection costs would be imposed when it sent the default letter and the rehabilitation agreement. Thus, Bible’s RICO claim does not necessarily require her to prove that USA Funds violated the HEA or its regulations, even if such proof might strengthen her claims.9 Even if we agreed with McCulloch and the district court in United Food & Commercial Workers on this issue, neither decision considered this alternative theory Bible is pursuing. See McCulloch, 298 F.3d at 1226–27 (lenders’ failure to comply with HEA disclosure obligations was not actionable under RICO); United Food & Commercial Workers, 2012 WL 3061859, at *4 (noting that plaintiff’s RICO claim depended on violation of regulatory statutes referenced in complaint). The absence of a private right of action under the HEA itself does not preclude Bible’s RICO claim.”

Reversed and Remanded

Manion Concurs & Dissents

Flaum Concurs

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Civil

7th Circuit Court of Appeals

Officials: POSNER, ROVNER, and HAMILTON, Circuit Judges

Cruel & Unusual Punishment – Retaliation

No. 14-3316

Jeffrey Allen Rowe v. Monica Gibson

Appellant’s lack of access to Zantac and contradictory Doctor affidavit more than sufficient to combat summary judgment

“It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence. To say for example that however implausible Dr. Wolfe’s evidence is, it must be accepted because not contested, is to doom the plaintiff’s case regardless of the merits simply because the plaintiff lacks the wherewithal to obtain and present conflicting evidence. Rowe did not move to exclude Wolfe as an expert witness on the ground that Wolfe neither qualified to give expert evidence in this case (because he is not a gastroenterologist) nor, as a defendant, was likely to be even minimally impartial. But Rowe does not have the legal knowledge that would enable him to file such a motion.”

Affirmed in Part, Reversed in Part and Remanded

Hamilton concurs and dissents

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Civil

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, HAMILTON, Circuit Judge, and DARRAH, District Judge

FERC – Admin Law – Petition for Review

No. 14-3023; No 13-2326

Pioneer Wind Farm, LLC v. FERC

FERC assignment of costs to connect plant to the grid and mandate to follow certain methodology not arbitrary and capricious.

“To sum up, the interconnection process at issue here includes three studies that give the affected parties multiple opportunities to choose to pursue or to abandon an interconnection agreement. There was an error in the original calculation of the costs that the new capacity proposed by the Generators would entail, and at the Generators’ request, FERC resolved the question who should bear those additional costs. The Generators had the option of connecting to the grid at the 120-megawatt level, paying, or walking away. They did not like those options, but FERC’s conclusion was based on substantial evidence and was not arbitrary. “[W]hen entities before FERC present intensely practical difficulties that demand a solution, FERC must be given the latitude to balance the competing considerations and decide on the best resolution.” NRG Power Mktg., LLC v. FERC, 718 F.3d 947, 955–56 (D.C. Cir. 2013) (quotations and citation omitted)”

Petition Denied

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Civil

7th Circuit Court of Appeals

Officials: ROVNER, WILLIAMS, and TINDER, Circuit Judges.

DBE Certification – Equal Protection

No. 14-1493

Dunnet Bay Construction Company v. Erica J. Borggren

Appellant lacks standing to raise equal protection challenge against IDOT.

“Moreover, even assuming that Dunnet Bay could establish that it was excluded from competition with DBEs or that it was disadvantaged as compared to DBEs, it cannot show that any difference in treatment was because of race. The regulations define a DBE as “a for-profit small business concern” that is owned or controlled “by one or more individuals who are both socially and economically disadvantaged.” 49 C.F.R. § 26.5 (2009). “Socially and economically disadvantaged” individuals include women, “Black Americans,” “Hispanic Americans,” and others. Id. And an individual in any racial group or gender may qualify as “socially and economically disadvantaged.” See id. However, “a firm is not an eligible DBE in any Federal fiscal year if the firm (including its affiliates) has had average annual gross receipts … over the firm’s previous three fiscal years, in excess of $22.41 million.” 49 C.F.R. § 26.65(b) (2009). For the three years preceding 2010, the year it bid on the Eisenhower project, Dunnet Bay’s average gross receipts were over $52 million. Therefore, Dunnet Bay’s size makes it ineligible to qualify as a DBE, regardless of the race of its owners. Thus, even if a DBE general contractor can count its own work force toward meeting the DBE participation goal without subcontracting any work on the project, whereas a non-DBE general contractor cannot, Dunnet Bay has not shown that any additional costs or burdens that it would incur are because of race. The additional costs and burdens are equally attributable to Dunnet Bay’s size.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: FLAUM, WILLIAMS, and HAMILTON, Circuit Judges

Commercial Liability – Insurance Coverage – Duty to Defend

No. 14-3084

Joe Panfil v. Nautilus Insurance Company

In light of all the terms of the insurance policy, insurance carrier’s failure to defend insured despite existence of employee exclusion provision

Under the second interpretation, the Contractor Subcontracted Work Endorsement, in conjunction with the Employee Exclusion, just means to preserve coverage for injuries to non-“employees” arising out of the work of subcontractors working solely for the insured. The effect of the Contractors-Subcontracted Work Endorsement is to limit any coverage for injury at the construction site to injury arising out of work done by contractors or subcontractors working solely for the insured. And the Employee Exclusion places a second, separate limit on coverage, which further restricts bodily injury coverage to injuries sustained by non- “employees.” Coverage still remains for bodily injury to non-“employees” arising out of the work of contractors or subcontractors working solely for the insured. The cumulative restrictions on coverage provided under the Employee Exclusion and the Contractors-Subcontracted Work Endorsement take away some, but not all, coverage.”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, HAMILTON, Circuit Judge, and DARRAH, District Judge

Immigration – Asylum Application

No. 14-2937

Arnaud Tawuo v. Loretta E. Lynch

Appellant inconsistent depiction of facts in affidavits led to denial of application for asylum.

“The IJ also cited changes Tawuo made to his story about his visa application process when he was confronted with contrary evidence. In his initial affidavit, Tawuo said he was “lucky” to receive a United States visa on his first attempt to apply. But he did not get a visa on his first try. Actually, the government rejected Tawuo’s first visa application. When the government confronted Tawuo about this, he claimed that only his second visa attempt “counted” because only then did a “guidance counselor” explain the application process to him. This explanation did not impress the IJ, who called it a worrisome misrepresentation given Tawuo’s unambiguous earlier statement about his good luck “at my first application.” We cannot fault this concern. When caught in what appeared to be a lie, Tawuo provided an unconvincing explanation. The IJ was well within his rights to regard this as evidence of a lack of credibility.”

Petition for Review Denied

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Civil

7th Circuit Court of Appeals

Officials: FLAUM, WILLIAMS, and HAMILTON, Circuit Judges

Class Action – Coupon Settlement

Nos. 13-3264; 13-3462; 14-2591; 14-2602; 14-2495

In Re: Southwest Airlines Voucher Litigation

Class Action Fairness Act allows district court to award class counsel an attorney fee based on the lodestar method rather than the value of the redeemed coupons.

“Under Markow’s approach, also adopted by the Ninth Circuit majority in HP Inkjet, subsection (c) seems to become surplusage. If subsection (a) requires use of percentage-of-coupons-used for any fee award based on coupons, and if subsection (b) requires use of lodestar for non-coupon relief, as Markow argues, that leaves nothing for subsection (c) to do other than repeat subsection (a) and (b). “[T]he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.” Marx, 133 S. Ct. at 1178. The approach we adopt, also taken by the district court and by Judge Berzon in HP Inkjet, gives all three subsections different roles to play. Subsection (a) prohibits basing a percentage-of-recovery fee on the face value of all coupons made available. Subsection (b) says that lodestar is the only permissible alternative to percentage-of-coupons-used. And subsection (c) allows, though does not require, a blend of the two methods when a coupon settlement also provides some equitable or cash relief”

Affirmed

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Civil

7th Circuit Court of Appeals

Officials: POSNER, ROVNER, and HAMILTON, Circuit Judges

Cruel and Unusual Punishment

No. 14-1952

Pedro Diaz v. Malcolm Davidson

Refusal to provide inmate with gloves and hat in order to exercise held not to be cruel and unusual punishment due to Appellants failure to connect the failure to provide said items with indifference on behalf of the respondent-defendant.

“But although the record compiled in the district court suggests that the plaintiff’s federal rights may have been violated—see, e.g., Lopez v. Smith, 203 F.3d 1122, 1132–33 (9th Cir. 2000) (en banc); Turley v. Rednour, supra, 729 F.3d at 652; Delaney v. DeTella, 256 F.3d 679, 683–84 (7th Cir. 2001)—his suit must fail because he does not allege that the failure to provide him with a hat and gloves reflected indifference on the part of the defendants to his need for those items. “[I]n a case like this, an inmate must allege actual knowledge of impending harm easily preventable.” Id. As far as appears, the defendant guards gave him what they were required by the prison’s policy to give him in the way of clothing when he exercised outdoors in cold weather without realizing, or being irresponsible in failing to realize, that he needed gloves and a hat to do the specific exercises that he needed to do for his back. As for the warden, his knowledge of Diaz’s problem, so far as the record reveals, was extremely limited. The warden received only one pertinent grievance from Diaz, which complained that on one occasion he’d been left outdoors without a hat and gloves for two hours. There was no suggestion that this was other than an isolated failure to equip him properly for the cold.”

Affirmed

Hamilton concurring.

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Civil

7th Circuit Court of Appeals

Officials: BAUER, ROVNER, and HAMILTON, Circuit Judges

Cruel and Unusual Punishment

No. 13-1057

David Gevas v. Christopher McLaughlin

District court’s grant of judgment as a matter to appellant-defendant was in error due to the fact that defendants were notified of Appellant’s complaint of cellmate threats to stab him.

“Certainly a prisoner may be expected to behave reasonably with respect to the dangers that prison life invariably presents. But a prisoner is not obligated to commit a disciplinary infraction in pursuit of his own safety. Prisons are, by their very nature, disciplinary, liberty-restricting environments in which “safety and order are paramount concerns.” Volkman v. Ryker, 736 F.3d 1084, 1092 (7th Cir. 2013); see also Bell v. Wolfish, 441 U.S. 520, 546, 99 S. Ct. 1861, 1878 (1979) (recognizing that maintaining institutional security and preserving internal order and discipline are essential goals” in the prison setting). Prisoners are expected to follow orders and rules, not disobey them. It was the prison that placed Adkins and Gevas in a cell together; and once the defendants were made aware that Adkins was threatening Gevas, it was their obligation as prison officials to assess the reported danger and to take reasonable steps to address it if they found it to be a real one. The defendants may not attempt to transfer that obligation to Gevas by insisting that he go so far as to engage in insubordination in order to take himself out of danger. See Young v. Selk, 508 F.3d 868, 874 (8th Cir. 2007).”

Reversed and Remanded

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Civil

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, FLAUM, Circuit Judge, and KENNELLY, District Judge.

Rescission – Material Misrepresentations

No. 14-2904

CMFG Life Insurance Company v. RBS Securities, Incorporated

Assumption of what documents might say based on understandings and representations in prior deals that were established per industry standard made summary judgment on material misrepresentation claim inappropriate.

“We wish to emphasize, however, the narrowness of our conclusion. We do not establish a rule that a party to a transaction may claim justifiable reliance on representations that were not made, or that he had not read. To the contrary, a party entering into a business transaction cannot do so based on assumptions and suppositions and then complain after the fact that they turned out to be unfounded. That would not constitute justifiable reliance. And indeed, the finder of fact in this case may conclude after a trial that CUNA has not proven reliance or at least not justifiable reliance. Our determination that the issue is reserved to the finder of fact in this case is premised on the relatively unusual situation laid out in Prusha’s testimony—which we are required to take as true at the summary judgment stage—that his prior dealings with RBS warranted him in understanding that the representations that he knew had been made in the prior deals he had reviewed and that were established standards in the industry were also being made in the deals at issue. Given that testimony, but only given that testimony, entry of summary judgment in RBS’s favor was inappropriate.”

Reversed in part. Affirmed in part.

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7TH CIRCUIT COURT OF APPEALS – CRIMINAL

Criminal

7th Circuit Court of Appeals

Officials: POSNER and KANNE, Circuit Judges, and DARRAH, District Judge

Successive §2255 Motion

No. 14-3049

Benjamin B. Kramer v. United States of America

Subsequent §2255 motion barred considered successive and thus barred.

“In our view, the real disagreement lies with Suggs, and Kramer does not ask us to revisit our opinion in that case. In addition, Kramer does not address what we see as the fundamental question underlying the circuit split: what constitutes the petitioner’s “judgment”? The Eleventh Circuit concluded, for example, that “[h]aving reviewed Magwood and the cases of other circuits, we return to the basic proposition [that] … there is only one judgment, and it is comprised of both the sentence and the conviction.” Insignares, 755 F.3d at 1281. Having concluded that a conviction and sentence comprised one judgment, the Eleventh Circuit necessarily held that a resentencing results in an entirely new judgment. As such, the underlying conviction may then be challenged by a first—not successive—section 2255 motion”

Affirmed.

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Criminal

7th Circuit Court of Appeals

Officials: FLAUM, WILLIAMS and HAMILTON, Circuit Judges

Tax Loss Calculation

No. 13-3908

United States of America v. Rex Black

District Court improperly calculated appellant tax loss resulting in improper sentence

“The general rule is that the tax loss calculation “does not include interest or penalties.” U.S.S.G. § 2T1.1 cmt. n.1. There is a narrow exception to this general rule for willful evasion cases under 26 U.S.C. § 7201 and willful failure to pay cases under 26 U.S.C. § 7203. Id. Black’s case does not fall within this exception. The jury did not convict him of any offense under § 7201 or § 7203.”

Vacated and Remanded

HAMILTON, Circuit Judge, concurring

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Criminal

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges

Insufficiency of Evidence

No. 13-3747

United States of America v. Larry Pust

Evidence showing knowledge of conspiracies scope and objective not necessary where evidence exists to established acts consistent with intent to defraud.

“Pust argues that the government failed to show that a conspiracy existed between Anderson and himself because there was no evidence that Pust knew the general scope and objective of the conspiracy or that he had an intent to associate with the purported conspiracy. But we disagree. The same evidence used to establish that Pust acted with an intent to defraud—namely, the email correspondences—is circumstantial evidence from which the district court properly inferred the existence of a conspiracy and Pust’s involvement in that conspiracy. For example, emails show Pust and Anderson discussing where to move investor funds and what lies to tell investors about the mortgage industry when they inquired about the decline in monthly interest payments from the REI project. The emails provide compelling evidence of Pust’s knowledge of and involvement in the scheme. We agree with the government that Pust’s challenge to the admission of Anderson’s statements is simply a rehash of his challenge to the sufficiency of the evidence, and for the same reasons we found the evidence sufficient to support the verdict, we reject his evidentiary challenge. See United States v. Yoon, 128 F.3d 515, 526 (7th Cir. 1997) (rejecting challenge to admission of co-conspirator statements under FRE 801(d)(2)(E) where essentially identical to sufficiency challenge). There was no error in admitting Anderson’s statements.”

Affirmed.

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Criminal

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and BAUER and MANION, Circuit Judges

Reasonable Suspicion – Motion to Suppress

No. 15-1515

United States of America v. Rodolpho Hernandez Flores

Police officer could not have reasonably believed that Appellant “commonplace plate frame” violated state law, and subsequent discovery of heroin and drug confession obtained after pulling appellant over should have been suppressed.

“During the prosecution, Hernandez Flores moved to suppress his statements and the evidence seized from the truck. He argued that McVicker did not have reasonable suspicion to pull him over for violating the plate‐display law because the plate’s frame did not obstruct any of the plate’s identifying information. He emphasized that the government’s reading of the statute has the absurd result of criminalizing not only all license‐plate frames, but mud spots covering part of a letter. Because the statute was not violated, he asserted, McVicker lacked reasonable suspicion to stop him.  “

Vacated and Remanded. Per Curiam.

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Criminal

7th Circuit Court of Appeals

Officials: KANNE and ROVNER, Circuit Judges, and SPRINGMANN, District Judge

Conditions of Supervised Release

No. 14-2787

United States of America v. Darrel W. Jones

Conditions of supervision requiring evaluation of to determine needs of treatment not excessive, particularly given his behavior.

“Convicted sex offenders tend to recidivate at a higher -than-normal rate. See McKune v. Lile, 536 U.S. 24, 33 (2002) (citing relevant studies). And “[m]ental health professionals seem to agree that accepting responsibility for past sexual misconduct is often essential to successful treatment.” Id. at 68 (Stevens, J., dissenting). But Jones refused to participate in his required treatment program after emerging from prison in 1994. Moreover, he continued to deny that he had a problem nearly a decade after the offenses. That is not the behavior of a rehabilitated man.”

Affirmed

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Criminal

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges

Revocation – Procedural Error

No. 14-3452

United States of America v. Brian Ford

Appellant brings several unsuccessful arguments alleging error in connection with his repeated violations of extended supervision.

“While we give Ford full marks for creativity, his reading of § 3583(e)(3) makes hash of the larger statutory scheme. The provision refers to “offense[s],” but violations of supervised release need not be criminal in nature: a defendant can violate the terms of his supervised release without committing a statutorily defined crime. See, e.g., United States v. Marvin, 135 F.3d 1129, 1131–32 (7th Cir. 1998) (discussing violation of special condition not to obtain loans or open new bank accounts). Thus, § 3583(e)(3)’s reference to “offense” must signify the offense for which the defendant was initially placed on supervised release.”

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Criminal

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges

2nd Amendment – Non Citizen

No. 3271

United States of America v. Mariano A. Meza-Rodriquez

Second amendment does not preclude restrictions the right to bear arms.

“The government counters with two arguments. First, it contends that unauthorized noncitizens categorically have not accepted the basic obligations of membership in U.S. society and thus cannot be considered as part of “the people.” Second, it argues that Meza-Rodriguez’s unsavory traits, including his multiple brushes with the law, failure to file tax returns, and lack of a steady job, demonstrate that he has not sufficiently accepted the obligations of living in American society. We take the latter point first. We do not dispute that Meza-Rodriguez has fallen down on the job of performing as a responsible member of the community. But that is not the point. Many people, citizens and noncitizens alike, raising Fourth Amendment claims are likely to have a criminal record, but we see no hint in Verdugo-Urquidez that this is a relevant consideration. Such a test would require a case-by-case examination of the criminal history of every noncitizen (including a lawful permanent resident) who seeks to rely on her constitutional rights under the First, Second, or Fourth Amendment. Not only would this test be difficult to implement; it would also create the potential for a noncitizen to lose constitutional rights she previously possessed simply because she began to behave in a criminal or immoral way. The Second Amendment is not limited to such on-again, off-again protection. Instead, the only question is whether the alien has developed substantial connections as a resident in this country; Meza-Rodriguez has”

Affirmed

FLAUM concurs

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Criminal

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges

Jury Instruction

No. 14-2944

United States of America v. Lavelle Watts

Appellant attempted argument that he did not intend to harm officer trumped by in court video footage of appellant hurling a chair directly at officer and overwhelming evidence.

“Unsurprisingly in this video age, the entire incident in the courtroom was captured on video, leaving no possible doubt that the defendant was guilty of an offense punished in section 113(a)(3), namely assault with a dangerous weapon with intent to inflict bodily harm. The jury was properly instructed that it must not even consider the lesser offense punished in (a)(5) (but not defined in it, defined— incorrectly—only in the judge’s instructions) unless it decided to acquit the defendant of the greater offense. So having found the defendant guilty of (a)(3) it had no business considering (a)(5). The judge needn’t have given a “simple assault” instruction at all, because no reasonable jury could have acquitted the defendant of assault with a dangerous weapon with intent to inflict bodily harm yet convicted him of simple assault. United States v. McCullough, supra, 348 F.3d at 624–28.”

Affirmed

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Criminal

7th Circuit Court of Appeals

Officials: POSNER, MANION, and HAMILTON, Circuit Judges

Pleas & Sentencing –

No. 14-3688

United States of America v. Ker Yang

Appellant sentence was appropriate as Min. Stat. §609.224 can be violated in multiple ways, including the conduct of the appellant.

“The issue is “whether the elements of the offense are of the type” that makes the offense a violent felony, and the court must answer this question “without inquiring into the specific conduct of this particular offender.” United States v. Woods, 576 F.3d 400, 403 (7th Cir. 2009), quoting James v. United States, 550 U.S. 192, 202 (2007); see also id. at 405 (sentencing under ACCA “precludes deciding on a case-by-case basis whether a particular prior violation of a general statute posed the kind of risk of violence that would justify the recidivism enhancements provided by the ACCA”). The sentencing judge need not and may not consult any of the facts underlying the prior conviction. It does not matter if the defendant violated the statute of conviction in a particularly violent or non-violent way. The inquiry looks only at the statutory elements of the prior conviction to determine whether it qualifies as a violent felony. See Descamps, 133 S. Ct. at 2285–86; Shepard v. United States, 544 U.S. 13, 16 (2005); Taylor v. United States, 495 U.S. 575, 600 (1990); United States v. Misleveck, 735 F.3d 983, 984 (7th Cir. 2013).”

Affirmed.

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WISCONSIN SUPREME COURT

Civil

Supreme Court of Wisconsin

License Suspension – Professional Misconduct

2014AP2535-D; 2015 WI 88

Office of Lawyer Regulation v. Joseph M. Capistrant

Attorney charged with eight counts of professional misconduct – license subsequently suspended

“Repeating the allegations of each separate matter here is not necessary. Attorney Capistrant’s conduct followed a common theme. He practiced law with a suspended law license and without telling clients, courts, and opposing counsel about his license suspension. He failed to diligently pursue certain cases, including matters that he allowed to languish after the circuit court or opposing counsel voiced concerns about his law license status. He used letterhead that stated he was “admitted in the State of Wisconsin” when his Wisconsin law license was suspended.”

Per Curiam.

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WI COURT OF APPEALS – CIVIL

Civil

WI Court of Appeals – District III

Officials: Stark and Hruz, JJ., and Thomas Cane, Reserve Judge

Dog Bite – Emergency Doctrine – Excessive Damage Award

2014AP1346

Joan A. Kelly v. Amanda E. Berg

Circuit court errs in instructing jury on emergency doctrine.

“Here, the circuit court clearly instructed the jury on the emergency doctrine, rather than the rescue rule. Because the two doctrines are separate and distinct, and require proof of different elements, the existence of the rescue rule does not “support” the court’s decision to give an emergency doctrine instruction. Although the parties address whether an instruction on the rescue rule would have been appropriate, that issue is not before us, and we do not address it. “

Decision

Reversed and Remanded – Recommended for publication

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Civil

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge

Trust & Estates – Beneficiaries

2014AP2288

Miles Phalen v. Sharlene Schoeneck

Miles Phalen, Special Administrator of the Estate of Raymond Skubal (“the Estate”), appeals a summary judgment granted in favor of Sharlene Schoeneck. The Estate argues the circuit court erred by concluding Schoeneck is entitled, as beneficiary, to the proceeds of a payable on death (P.O.D.) account established by Skubal. We reject the Estate’s arguments and affirm the judgment.

Decision

Affirmed. Per Curiam.

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Civil

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge

Divorce Proceedings – Spousal Maintenance

2014AP2423

Thomas F. Campbell v. Andrea J. Campbell

Thomas Campbell appeals the maintenance portion of a judgment dissolving his marriage to Andrea Campbell and the order denying his motion for reconsideration. Thomas argues the circuit court erroneously exercised its discretion in awarding maintenance. We disagree and affirm the judgment and order.

Decision

Affirmed.

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Civil

WI Court of Appeals – District III

Officials: STARK, J

Ordinance Violation

2014AP2719

Town of Trempealeau v. Wendell P. Klein

Wendell Klein appeals a judgment that was entered after the circuit court denied his motions to dismiss a citation for operating a propane cannon, or “scare gun,” on his farmland in violation of an ordinance enacted by the Town of Trempealeau. Klein argues the Town’s scare gun ordinance is invalid for several reasons. We reject his arguments and affirm.

Decision

Affirmed

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Civil

WI Court of Appeals – District III

Officials: Stark, P.J., Hruz, J., and Thomas Cane, Reserve Judge

Mitigation of Damages

2014AP2728

Stuart Sorenson v. Paul V. Mast

Thomas Zastrow appeals a money judgment for the value of baled corn stalks he removed from farm land. Zastrow argues Stuart Sorenson failed to mitigate his damages. We affirm.

Decision

Affirmed.

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Civil

WI Court of Appeals – District I

Officials: KESSLER, J.

Civil Commitments

2015AP388

Milwaukee County v. Kent F

Kent F. appeals an order extending his WIS. STAT. ch. 51 mental health commitment. Kent argues that Milwaukee County failed to prove by clear and convincing evidence that he was a proper subject for treatment under ch. 51. We affirm.

Decision

Affirmed.

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Civil

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Negligence – Statute of Repose

2014AP2820

Stephanie J. Pauli v. Safeco Insurance Company of America

Stephanie Pauli appeals from the circuit court’s summary judgment dismissal of her lawsuit alleging the negligence of Debra Egan and Paul DeSantis caused her injury when she fell while exiting from their summer home. She asserts the circuit court erred in determining her lawsuit is barred by the relevant statute of repose, WIS. STAT. § 893.89 (2013-14). Because we conclude § 893.89 does not bar her action, we reverse and remand for further proceedings consistent with this opinion.

Decision

Affirmed.

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Civil

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Declaratory Judgment Underinsured Motorist Coverage

2015AP208

Julie A. Teske v. Wilson Mutual Insurance Company

This is a dispute over the amount of underinsured motorist (UIM) benefits available to the insureds after a motor vehicle accident. Julie Teske and her minor daughters, Elle and Katherine, by the minors’ guardian ad litem (the Teskes), appeal a declaratory judgment in favor of Wilson Mutual Insurance Company, the Teskes’ motor vehicle insurer. The Teskes contend Wilson is contractually bound to pay them the full per-accident liability limit. Wilson argues that it met its obligation by tendering an amount that, with what the Teskes recovered from the tortfeasor’s insurer, equals the per-accident liability limit. The circuit court agreed with Wilson. We affirm.

Decision

Affirmed. Per Curiam.

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Civil

WI Court of Appeals – District IV

Officials: HIGGINBOTHAM, J.

Small Claims – Motion to Reopen

2014AP1192

Samantha Jo Phalin v. Tyler J. Schnell

On appeal, Schnell argues that the court-issued notice of the small claims court trial was defective. He also argues that the court award of $10,000 to Phalin for damages was not supported by the record and that the court erred in denying Schnell’s motion to reopen and motion for reconsideration. We disagree and, for the reasons that follow, we affirm the circuit court.

Decision

Affirmed.

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Civil

WI Court of Appeals – District IV

Officials: Lundsten, Higginbotham and Sherman, JJ.

Judge Recusal – Abuse of Discretion

2014AP2266

Greg Griswold v. Town of Cross Plains

Greg Griswold appeals a judgment and orders entered by the circuit court after we remanded the case following a previous appeal. Griswold argues that all adverse rulings entered against him while the circuit court case was pending before Judge John Albert should be vacated, that the circuit court erred in entering an order requiring him to post a bond as a condition of appeal, and that the circuit court’s award of attorney fees incurred by the Town of Cross Plains was excessive and unreasonable. For the reasons discussed below, we affirm the judgment and orders of the circuit court.

Decision

Affirmed. Per Curiam.

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Civil

WI Court of Appeals – District IV

Officials: LUNDSTEN, J.

Landlord Tenant – Security Deposit

2014AP2789

Donald J. Knott v. Wisconsin Housing and Economic Development Authority

Donald Knott, a residential tenant, appeals the circuit court’s judgment dismissing his claim against the Wisconsin Housing and Economic Development Authority (WHEDA) for Knott’s security deposit. WHEDA purchased the underlying property at a foreclosure sale. Knott now concedes that a state statute extinguished his right to recover his security deposit. Knott argues, however, that a federal law, the Protecting Tenants at Foreclosure Act, preempts the state statute and allows him to hold WHEDA liable for his security deposit. I reject Knott’s argument and, therefore, affirm.

Decision

Affirmed.

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Civil

WI Court of Appeals – District IV

Officials: SHERMAN, J.

CHIPS – Child Visitation Privileges

2015AP552

Dane Co. DHS v. Connie H.

Connie H. appeals from an order of the circuit court denying her petition to revise a CHIPS dispositional order to lift a suspension of visits with her son, K.H. Connie argues that she met the conditions established by the court for the reinstatement of her visitation privileges to the best of her ability and, therefore, the circuit court should have reinstated her visitation privileges. I affirm for the reasons discussed below.

Decision

Affirmed.

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WI COURT OF APPEALS – CRIMINAL

Criminal

WI Court of Appeals – District I

Officials: Curley, P.J., Brennan and Bradley, JJ

Discretionary Error

2014AP1873-CR

State of Wisconsin v. Vaughn Caruth Gilmer

Vaughn Caruth Gilmer appeals the judgment convicting him of one count of possessing with intent to deliver two-hundred grams or less of tetrahydrocannabinols (“THC”) as a second or subsequent offense. See WIS. STAT. §§ 961.41(1m)(h)1. & 961.48(1)(b) (2011-12). On appeal, he argues that we should grant him a new trial because the trial court erroneously exercised its discretion by allowing the bag of marijuana that had been admitted into evidence into the jury room during deliberations. We disagree and affirm.

Decision

Affirmed

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Criminal

WI Court of Appeals – District I

Officials: KESSLER, J

Termination of Parental Rights

2014AP857

State v. T.P.

T.P. appeals an order terminating his parental rights to his son, W.G. T.P. argues that: (1) the circuit court erroneously discharged his counsel, pursuant to WIS. STAT. § 48.23(4m), after finding him in default for failing to attend several hearings; and (2) § 48.23 is unconstitutional as applied to him. We affirm

Decision

Affirmed.

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Criminal

WI Court of Appeals – District II

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Exclusionary Rule

2014AP2283-CR

State v. Christopher D. McNeal

The State of Wisconsin appeals the circuit court’s order granting Christopher McNeal’s motion to suppress and the related exclusion of all evidence gathered by the State following city of Kenosha police officers’ unlawful entry into McNeal’s residence. We affirm.

Decision

Affirmed. Per Curiam.

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Criminal

WI Court of Appeals – District IV

Officials: BLANCHARD, J.

Insufficient Legal Argument

2015AP51-CR

State of Wisconsin v. Susan P. Resch

Susan Resch was convicted of disorderly conduct. Resch appeals, “asking [this] court to dismiss this case based on lack of confrontation of witnesses against her and lack of compulsory process to have witnesses appear on her behalf and lack of an adequately performed investigation.” For the following reasons, I affirm.

Decision

Affirmed

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