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Weekly Case Digests – January 11, 2021 – January 15, 2021

By: Derek Hawkins//January 15, 2021//

Weekly Case Digests – January 11, 2021 – January 15, 2021

By: Derek Hawkins//January 15, 2021//

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7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Chandra Turner v. City of Champaign, et al.,

Case No.: 19-3446

Officials: KANNE and HAMILTON, Circuit Judges.

Focus: 4th Amendment Violation – Excessive Force

Richard Turner died during an encounter with police officers in Champaign, Illinois. The officers were trying to detain him to protect himself and others and to take him to a hospital for evaluation of his mental health. With hindsight we can say that his death might have been avoided. In this suit by Mr. Turner’s estate, however, the central question is not whether officers used best police practices but whether they violated his rights under the Fourth Amendment by using excessive force against him. The district court found that undisputed facts, including a coroner’s findings that Mr. Turner suffered no physical trauma but died of a cardiac arrhythmia, showed that the officers did not use excessive force. We agree and affirm summary judgment for the defendants.

Affirmed

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7th Circuit Court of Appeals

Case Name: Brad Sandefur v. Thomas J. Dart, et al.,

Case No.: 19-2787

Officials: SYKES, Chief Judge, and HAMILTON and ST. EVE, Circuit Judges.

Focus: ADA and Due Process Claim Violation

Plaintiff Brad Sandefur is a corrections officer for the Sheriff of Cook County, Illinois. He suffers from disk desiccation in his spine and osteoarthritis in his knees. Both conditions can cause him intermittent pain for weeks at a time. In 2011, Sandefur applied for and received a handicapped parking placard from the Illinois Secretary of State. His application identified his qualifying disability as osteoarthritis or a “knee condition.” The application asserted that he could not walk without using an assistive device such as a cane or walker or receiving help from another person, and that the impairment was permanent.

In 2015, however, at age 55, Sandefur applied for and was accepted to the Cook County Sheriff’s Police Academy, which offered a path for him to move from corrections officer to a job as a police officer with the Sheriff. On the first day of training, an instructor noticed the handicapped parking placard hanging from the rearview mirror of Sandefur’s car. When the instructor asked about the placard, Sandefur said it was there for his wife. When a second officer asked about the placard, Sandefur said that it was his wife’s but that he also used it. Wanting to confirm that Sandefur was medically cleared to participate in the Academy’s physical training, Academy officials met with Sandefur. He explained that his doctor had approved the placard because of his osteoarthritis but that he was not requesting any accommodations in the Academy course.

In the face of Sandefur’s inconsistent explanations, the Sheriff’s Office eventually opened a formal investigation into his acquisition and use of the placard. Sandefur’s explanations did not improve or become more consistent. For example, Sandefur said that he believed his initial placard application had been authorized for the wrong condition and admitted that he had used his placard for years based on convenience rather than medical necessity.

Toward the end of the investigation, the lead investigator concluded that Sandefur had demonstrated an “inability to provide truthful responses to basic questions.” Emphasizing that the Sheriff’s police officers are held to “the highest standards” and required to “lead by example,” the officer recommended that Sandefur be dismissed from the Academy. Based on these findings, the Sheriff’s Office dismissed Sandefur from the Academy and returned him to his job as a corrections officer.

Sandefur has sued Sheriff Thomas J. Dart and Cook County (together, the “Sheriff’s Office”) for violating the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112, and his due process rights under the Fourteenth Amendment. The district court granted summary judgment for the Sheriff’s Office, concluding that it had dismissed Sandefur based on its honest belief that he had lied about his disability, not because he had a disability, and that Sandefur had offered no evidence of a due process violation. Sandefur v. Cook County, No. 17 cv 2048, 2019 WL 3825509 (N.D. Ill. Aug. 15, 2019). We affirm. We address first the ADA claim and then the due process claim.

Affirmed

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7th Circuit Court of Appeals

Case Name: Keli Calderone v. City of Chicago, et al.,

Case No.: 19-2858

Officials: FLAUM, ROVNER, and WOOD, Circuit Judges.

Focus: Qualified Immunity

Caught in a fit of road rage, Keli Calderone shot another driver with her handgun. An Illinois grand jury subsequently indicted her for attempted murder. Calderone’s employer—the City of Chicago (“the City”)—administratively charged her for violating its personnel rules. At her later criminal bench trial, Calderone argued self-defense; an Illinois judge agreed and acquitted her. Soon thereafter, the City reinstated Calderone.

Calderone then sued the City and her supervisors in federal court, claiming, among other things, that the City fired her in retaliation for her exercise of her Second Amendment rights. The City moved to dismiss the claims, arguing that Calderone’s conduct was not within the scope of activity protected by the Second Amendment. The district court granted the motion, reasoning that even if Calderone does have a constitutional right to discharge her firearm in self-defense, qualified immunity shielded her supervisors from suit because caselaw has not clearly established that right. We affirm the district court on the sole ground that Calderone’s supervisors are entitled to qualified immunity.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Jeremy Hogenkamp

Case No.: 20-1376

Officials: EASTERBROOK, KANNE, and WOOD, Circuit Judges.

Focus: Sentencing Guidelines – Supervised Release

Jeremy Hogenkamp pleaded guilty to a federal crime and was sentenced to 10 years’ imprisonment plus 25 years’ supervised release. Fourteen months before the anticipated end of his custodial time (April 2021), he asked the district court to modify the terms of his supervised release. The judge denied this motion, deeming it premature, and invited Hogenkamp to “discuss the terms of his supervised release with his probation officer” later—“[a]t the time that defendant is released”—and “ask the court for a modification of the terms … at that time.”

To the extent that the judge believed it appropriate to defer consideration of Hogenkamp’s motion until after his release, the decision is mistaken. A prisoner is “entitled to know, before he leaves prison, what terms and conditions govern his supervised release.” United States v. Williams, 840 F.3d 865 (7th Cir. 2016) (emphasis added). See also United States v. Siegel, 753 F.3d 705, 716–17 (7th Cir. 2014). The terms of release govern matters including where a person may live, with whom he may associate, and what jobs he may hold. All of these (and other terms too) affect him on the day he walks out of prison. The need for pre-release knowledge of the rules is among the reasons why the terms are included in the judgment of conviction. People must be able to plan their lives.

Despite the language in the district court’s order suggesting that Hogenkamp wait until after his release to begin the process of seeking a change in the terms of his supervision, we treat the court’s bottom line as an exercise of its authority to defer decision until a time closer to Hogenkamp’s scheduled release. As that date is closing in, however, further delay in making a decision would be appropriate only if the court has some concrete reason to think that more or better information will be available in the next two or three months.

Hogenkamp wants us to instruct the judge to make the changes he proposes, but the district court must address any substantive issues in the first instance. Rather than affirming and forcing Hogenkamp to start over in the district court, we think it appropriate to remand so that the district judge can exercise, without undue delay, the discretion she possesses and make a decision in advance of Hogenkamp’s scheduled release. See 28 U.S.C. §2106.

Remanded

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Yim C. Hear v. Superior Restaurant Company, LLC,

Case No.: 2018AP2230

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Damages

Superior Restaurant Company, LLC, appeals judgments, entered following a jury’s verdict in a case involving a failed restaurant venture. The jury awarded Yim Hear a net amount of $82,934.89 on his eviction claim after offsetting $97,500 for Superior’s successful prosecution of a breach of fiduciary duty claim against Hear. Superior challenges many of the circuit court’s determinations, including its refusal to change the jury’s answers on the special verdict form to questions regarding Superior’s breach of its lease agreement with Hear, and Hear’s breach of a preliminary agreement made at the inception of the restaurant venture. Superior also alleges the court made numerous evidentiary errors and erred by refusing to award damages based on the jury’s finding that Hear breached an implied covenant of good faith and fair dealing. We reject all of Superior’s arguments and affirm.

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WI Court of Appeals – District III

Case Name: Jones Sign Co., Inc., v. Consensus Construction & Consulting, Inc.,

Case No.: 2019AP2189

Officials: Stark, P.J., Hruz and Seidl.

Focus: Contract – Forum-selection Clause

Consensus Construction & Consulting, Inc., appeals a money judgment in favor of Jones Sign Co., Inc. Consensus asserts the circuit court erred by refusing to enforce a forum selection clause contained in the parties’ contract identifying the courts of South Carolina as the proper place to litigate disputes under the contract. We agree that the forum selection clause must be given effect and that Jones Sign’s complaint should have been dismissed. Accordingly, we reverse.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brian S. O’Toole

Case No.: 2018AP1726-CR

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

Focus: Abuse of Discretion – Other-acts Evidence

Brian S. O’Toole appeals from a judgment convicting him of first-degree sexual assault of a child, as a persistent repeater, and an order denying his postconviction motion. O’Toole argues that the circuit court: (1) erroneously exercised its discretion in admitting other-acts evidence of a prior sexual assault and a restraining order, (2) improperly allowed the jury to use the other acts as evidence of O’Toole’s propensity to commit sexual assaults, and (3) made erroneous evidentiary rulings at trial. O’Toole also argues that application of the greater latitude rule to the prejudice prong of the court’s other acts analysis violated his due process right to a fair trial, and that the prosecutor’s closing arguments improperly shifted and lowered the applicable burden of proof. For the reasons that follow, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Daryise L. Earl

Case No.: 2018AP2432

Officials: Neubauer, C.J., Gundrum and Davis, JJ.

Focus: Brady Violation

Daryise L. Earl appeals pro se from the order denying his most recent WIS. STAT. § 974.06 (2017-18) motion. He argues that a Brady violation and newly discovered evidence entitle him to a new trial. Alternatively, he contends he should be granted a new trial in the interest of justice. We disagree and affirm the order.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Russell L. Rose, Jr.,

Case No.: 2019AP648-CR

Officials: Reilly, P.J., Gundrum and Davis, JJ.

Focus: Motion to Suppress Evidence Denied

Russell L. Rose, Jr., appeals from a judgment convicting him of numerous crimes. He contends that the circuit court erred in (1) denying his motion to suppress his statement to a firefighter-paramedic, (2) denying his counsel’s request to withdraw, and (3) denying his motion for a new jury panel. We affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Chevele Donte Lyons

Case No.: 2019AP1723

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

Focus: Motion for Reconsideration Denied – Brady Violation

Chevele Donte Lyons appeals from orders denying his motions for reconsideration. We previously determined that an appeal of the circuit court’s order denying Lyons’ motion for postconviction relief under WIS. STAT. § 974.06 (2017-18) was untimely as it was filed more than ninety days after entry of the order and, therefore, we lacked jurisdiction to review the order. See WIS. STAT. § 809.10(1)(e). We now conclude that Lyons’ motions for reconsideration present only one new issue not presented in the postconviction motion: a Brady violation claim. Addressing only that issue, we conclude that Lyons’ claim is meritless and affirm.

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WI Court of Appeals – District II

Case Name: Waukesha County v. E.J.W.

Case No.: 2020AP370

Officials: NEUBAUER, C.J.

Focus: Involuntary Commitment

E.J.W.’s involuntary commitment was extended pursuant to an eight-month stipulation he and Waukesha County entered into after the circuit court denied his demand for a jury trial as untimely. Because we are bound by Marathon County v. R.J.O., 2020 WI App 20, ¶41, 392 Wis. 2d 157, 943 N.W.2d 898, which holds that failure to file a jury trial demand is waived if not made at least forty-eight hours in advance of the time set for final hearing, we affirm.

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Jack Ray Zimmerman, Jr.,

Case No.: 2020AP475

Officials: GUNDRUM, J.

Focus: OWI – Motion to Suppress – Refusal of Breath Test

Jack Ray Zimmerman, Jr., appeals from an order denying his motion to dismiss the complaint and revoking his operating privileges based upon his refusal to submit to a breath test following his arrest for operating a motor vehicle while intoxicated (OWI), third offense. For the following reasons, we affirm.

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WI Court of Appeals – District II

Case Name: Waukesha County v. L.J.M.,

Case No.: 2020AP820-FT

Officials: DAVIS, J.

Focus: Involuntary Commitment – Sufficiency of Evidence

“Lisa” appeals from an order extending her involuntary commitment under WIS. STAT. ch. 51. We find that there was sufficient evidence that Lisa had a mental illness, was a proper subject for treatment, and was dangerous. See WIS. STAT. § 51.20(1)(a). Accordingly, we affirm.

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WI Court of Appeals – District II

Case Name: Waukesha County v. I.R.T.

Case No.: 2020AP996-FT

Officials: REILLY, P.J.

Focus: Involuntary Commitment

I.R.T. appeals from an order of the circuit court extending his involuntary commitment. I.R.T. argues that Waukesha County (the County) failed to establish that he is dangerous pursuant to WIS. STAT. § 51.20(1)(a), (am), and that the circuit court’s recommitment order erroneously relied on hearsay evidence. We conclude that the evidence supports the circuit court’s conclusion that I.R.T. is mentally ill, is a proper subject for treatment, and would be a proper subject for commitment if treatment were withdrawn. See § 51.20(1)(a)1.-2., (am). Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Angela Lee Linsmeyer v. Jason Scott Linsmeyer

Case No.: 2019AP2032

Officials: FITZPATRICK, P.J.

Focus: Due Process Violation

Jason Linsmeyer, pro se, appeals an order of the Dodge County Circuit Court that denied Linsmeyer’s motion to enforce a physical placement order and ordered Linsmeyer to pay his former spouse, Angela Miller, child support from Linsmeyer’s prison release account. Linsmeyer argues that the circuit court’s failure to grant his request to subpoena the production of phone records from the correctional institute where he is incarcerated deprived him of his right to due process. Linsmeyer also argues that the court erred by ordering that his child support obligation be deducted from his prison release account. I reject Linsmeyer’s arguments and affirm.

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Steven L. Sternitzky

Case No.: 2019AP2185-CR

Officials: NASHOLD, J.

Focus: Warrantless Search – Probable Cause

Steven Sternitzky appeals a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration, third offense. He challenges the circuit court’s denial of his suppression motion, arguing that his warrantless arrest was not based on probable cause. Sternitzky also argues that the circuit court improperly instructed the jury with respect to the presumption of intoxication and the automatic admissibility of test results, set forth in WIS JI—CRIMINAL 2669. For the reasons set forth below, I affirm.

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WI Court of Appeals – District IV

Case Name: Loren Imhoff Homebuilder, Inc., v. Lisa Taylor, et al.,

Case No.: 2019AP2205

Officials: Blanchard, Kloppenburg, and Graham, JJ.

Focus: Arbitration Award

Lisa Taylor and Luis Cuevas (the homeowners) entered into a construction contract with Loren Imhoff Homebuilder, Inc. (the builder) for a remodeling project. The project bogged down in disputes. The disputes went into mediation and then into arbitration before a single arbitrator. The parties participated in an evidentiary hearing before the arbitrator. The arbitrator’s decision resulted in a net award in favor of the builder, but each side prevailed on some issues.

The homeowners moved the circuit court to vacate the arbitration award on multiple grounds. The court rejected all but one. The court accepted the homeowners’ argument that the arbitrator fell asleep at some point or points during the evidentiary hearing and that as a result he “so imperfectly executed [his powers as arbitrator] that a mutual, final and definite award upon the subject matter submitted was not made.” See WIS. STAT. § 788.10(1)(d) (2017-18) (including such “imperfect execut[ion]” as one ground on which a circuit court must vacate an arbitration award). The builder appeals.

We conclude that the homeowners forfeited the claim that the circuit court should vacate the award based on the momentary drowsiness or sleeping that they ended up alleging in court because they failed to ask the arbitrator to resolve any problems caused by alleged momentary drowsiness or sleeping. Accordingly, we reverse the order vacating the arbitration award and direct the circuit court to confirm it.

Recommended for Publication

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WI Court of Appeals – District IV

Case Name: Jackson County v. W.G.,

Case No.: 2020AP961

Officials: GRAHAM, J.

Focus: Involuntary Commitment and Medication

W.G. appeals an involuntary recommitment order entered pursuant to WIS. STAT. § 51.20 and an involuntary medication order entered pursuant to WIS. STAT. § 51.61(1)(g)4. He contends that both orders should be reversed because the evidence was insufficient to show that he was “dangerous” to himself or others, as that term is defined in § 51.20(1)(a)2. and (1)(am). I conclude that Jackson County failed to meet its burden to show that W.G. was dangerous, and therefore, I reverse both orders.

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Supreme Court Digests

United States Supreme Court

Case Name: DeRay Mckesson v. John Doe

Case No.: 19-1108

Focus: Statutory Interpretation – 1st Amendment Violation

Petitioner DeRay Mckesson organized a demonstration in Baton Rouge, Louisiana, to protest a shooting by a local police officer. The protesters, allegedly at Mckesson’s direction, occupied the highway in front of the police headquarters. As officers began making arrests to clear the highway, an unknown individual threw a “piece of concrete or a similar rock-like object,” striking respondent Officer Doe in the face. 945 F. 3d 818, 823 (CA5 2019). Officer Doe suffered devastating injuries in the line of duty, including loss of teeth and brain trauma. Though the culprit remains unidentified, Officer Doe sought to recover damages from Mckesson on the theory that he negligently staged the protest in a manner that caused the assault. The District Court dismissed the negligence claim as barred by the First Amendment. 272 F. Supp. 3d 841, 847–848 (MD La. 2017).

The question presented for our review is whether the theory of personal liability adopted by the Fifth Circuit violates the First Amendment. When violence occurs during activity protected by the First Amendment, that provision mandates “precision of regulation” with respect to “the grounds that may give rise to damages liability” as well as “the persons who may be held accountable for those damages.” Claiborne Hardware, 458 U. S., at 916–917 (internal quotation marks omitted). Mckesson contends that his role in leading the protest onto the highway, even if negligent and punishable as a misdemeanor, cannot make him personally liable for the violent act of an individual whose only association with him was attendance at the protest.

First, the dispute presents novel issues of state law peculiarly calling for the exercise of judgment by the state courts. See Lehman Brothers, 416 U. S., at 391. To impose a duty under Louisiana law, courts must consider “various moral, social, and economic factors,” among them “the fairness of imposing liability,” “the historical development of precedent,” and “the direction in which society and its institutions are evolving.” Posecai, 752 So. 2d, at 766. “Speculation by a federal court about” how a state court would weigh, for instance, the moral value of protest against the economic consequences of withholding liability “is particularly gratuitous when the state courts stand willing to address questions of state law on certification.” Arizonans for Official English v. Arizona, 520 U. S. 43, 79 (1997) (internal quotation marks and alteration omitted).

Second, certification would ensure that any conflict in this case between state law and the First Amendment is not purely hypothetical. The novelty of the claim at issue here only underscores that “[w]arnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State’s law.” Ibid. The Louisiana Supreme Court, to be sure, may announce the same duty as the Fifth Circuit. But under the unusual circumstances we confront here, we conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights— without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court. We express no opinion on the propriety of the Fifth Circuit certifying or resolving on its own any other issues of state law that the parties may raise on remand.

We therefore grant the petition for writ of certiorari, vacate the judgment of the United States Court of Appeals for the Fifth Circuit, and remand the case to that court for further proceedings consistent with this opinion.

Petition granted. Judgment vacated and cause remanded

Dissenting: JUSTICE THOMAS dissents.

Concurring:

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United States Supreme Court

Case Name: Trent Michael Taylor v. Robert Riojas, et al.,

Case No.: 19-1261

Focus: Prisoner – 8th Amendment Violation

Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in “‘massive amounts’ of feces”: all over the floor, the ceiling, the window, the walls, and even “‘packed inside the water faucet.’” Taylor v. Stevens, 946 F. 3d 211, 218 (CA5 2019). Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.

The Court of Appeals for the Fifth Circuit properly held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment. But, based on its assessment that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste” “for only six days,” the court concluded that the prison officials responsible for Taylor’s confinement did not have “‘fair warning’ that their specific acts were unconstitutional.” 946 F. 3d, at 222 (quoting Hope v. Pelzer, 536 U. S. 730, 741 (2002)).

Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution. We therefore grant Taylor’s petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand the case for further proceedings consistent with this opinion.

Petition granted. Judgment vacated and cause remanded

Dissenting: JUSTICE THOMAS dissents.

Concurring:

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