Weekly Case Digests – October 4, 2021 – October 8, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: Ryan Klaassen, et al., v. Trustees of Indiana University

Case No.: 21-2326

Officials: Easterbrook, Scudder, and Kirsch, Circuit Judges.

Focus: Preliminary Injunction

Starting next semester, all students at Indiana University must be vaccinated against COVID-19 unless they are exempt for religious or medical reasons. Exempt students must wear masks and be tested for the disease twice a week. Eight students contend in this suit that these conditions of attendance violate the Due Process Clause of the Constitution’s Fourteenth Amendment. The district court denied plaintiff’s request for a preliminary injunction, 2021 U.S. Dist. LEXIS 133300 (N.D. Ind. July 18, 2021), and they ask us to issue an injunction pending appeal. The motion for an injunction pending appeal is denied.

Denied

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7^th Circuit Court of Appeals

Case Name: Planned Parenthood of Indiana and Kentucky, Inc., v. Marion County Prosecutor, et al.,

Case No.: 20-2407

Officials: EASTERBROOK, WOOD, and ST. EVE, Circuit Judges.

Focus: Facial Challenge – Abortion Complications 

This appeal queries whether an Indiana statute that requires medical providers to report complications “arising from” abortions to the state is unconstitutionally vague on its face. Although the statute has some ambiguity, we conclude that Planned Parenthood has not shown that the law is unconstitutionally vague on its face in this pre-enforcement challenge. Because we conclude that the Complications Statute does have a discernable core for the purposes of this pre-enforcement, facial challenge, we REVERSE the district court’s entry of summary judgment in favor of Planned Parenthood on its vagueness challenge and VACATE the district court’s permanent injunction on that basis. The case is REMANDED to the district court for further proceedings not inconsistent with this opinion.

Reversed and remanded in part. Vacated in part.

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7^th Circuit Court of Appeals

Case Name: David A. Resnick v. United States of America

Case No.: 20-1221

Officials: SYKES, Chief Judge, and RIPPLE and HAMILTON, Circuit Judges.

Focus: Ineffective Assistance of Counsel

In adjudicating David Resnick’s direct appeal from his conviction and life sentence for sexually abusing two young boys, we affirmed the judgment of the district court. United States v. Resnick, 823 F.3d 888 (7th Cir. 2016). Mr. Resnick then filed a motion under 28 U.S.C. § 2255 to vacate his conviction and sentence, alleging that his defense counsel provided ineffective assistance. The district court denied the motion, and Mr. Resnick filed a timely appeal to this court. We now conclude that the district court correctly determined that Mr. Resnick was not deprived of his Sixth Amendment right to effective assistance of counsel. Accordingly, we affirm the district court’s judgment.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Richard Brooks v. City of Kankakee, Illinois,

Case No.: 20-1395

Officials: EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges.

Focus: Jury Instructions

Richard Brooks, an African American police officer, made statements on multiple occasions complaining that his employer, the City of Kankakee, Illinois, favored white officers. The City, viewing the statements as false and disparaging, issued a written reprimand letter to Mr. Brooks ordering him to stop making such statements and warning him that he faced discipline up to and including termination should he engage in further public disparagement.

Mr. Brooks filed a complaint in the district court against the City alleging that it had retaliated against him, in violation of Title VII of the Civil Rights Act of 1964, by failing to promote him and by issuing to him a reprimand letter after he had engaged in protected activity. The City filed a motion for summary judgment. In response, Mr. Brooks attempted to introduce a new claim alleging that the City’s promotional policies had a disparate impact on minority officers. The district court dismissed Mr. Brooks’s disparate impact claim and granted summary judgment to the City on his retaliation by failure to promote claim. The court, however, denied summary judgment on Mr. Brooks’s retaliation-by-reprimand claim, concluding that a genuine issue of material fact remained as to whether Mr. Brooks’s statements constituted protected activity.

Mr. Brooks’s retaliation-by-reprimand claim proceeded to trial, and a jury returned a verdict for the City. The court denied Mr. Brooks’s motions for judgment as a matter of law. Mr. Brooks now appeals, contending that no reasonable jury could have found for the City and that his disparate impact claim was improperly dismissed. In the alternative, he argues that the district court misstated the law in its jury instructions and requests that we remand for a new trial. We now affirm the district court’s judgment.

Decision

7^th Circuit Court of Appeals

Case Name: United States of America v. Ernesto Godinez

Case No.: 19-3425

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

Focus: Admission of Evidence – Ballistics Evidence

Law enforcement officers entered a southwest Chicago neighborhood one night to replace tracking devices on the cars of several Latin Saints gang members. Shortly after the officers arrived, they came under gun‐ fire and a federal agent was shot and seriously injured.  A federal grand jury indicted Ernesto Godinez, a member of the gang, for the shooting. In the government’s view, Godinez, tasked with guarding the neighborhood, mistook federal agents from the Bureau of Alcohol, Tobacco, and Fire‐ arms (“ATF”) for rival gang members and shot Special Agent Kevin Crump. After a six‐day trial, a jury found Godinez guilty.

Godinez now appeals, arguing that the district court wrongly admitted certain evidence and that the jury did not receive sufficient evidence to convict him of shooting Crump. We conclude that the district court properly admitted ballistics evidence concerning the shots fired, although evidence from and testimony about a gunshot detection system— ShotSpotter—should have been handled differently. Because a rational jury, even without the improperly admitted evidence, could have found beyond a reasonable doubt that Godinez shot Crump, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Jesus Ruiz v. United States of America

Case No.: 18-1114

Officials: SYKES, Chief Judge, EASTERBROOK, KANNE, ROVNER, WOOD, HAMILTON, BRENNAN, SCUDDER, ST. EVE, and KIRSCH, Circuit Judges.

Focus: Petition for Rehearing En Banc

On consideration of the petition for rehearing and rehearing en banc filed by petitioner-appellant on April 23, 2021, a majority of judges on the original panel voted to deny rehearing. A judge in regular active service requested a vote on the petition for rehearing en banc. A majority of judges in regular active service voted to deny rehearing en banc. Judges Ilana Diamond Rovner, Diane P. Wood, and David F. Hamilton voted to grant rehearing en banc. Accordingly, the petition for rehearing and rehearing en banc is DENIED.

Denied

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7^th Circuit Court of Appeals

Case Name: Dentrell Brown v. Frank Vanihel

Case No.: 20-2473; 20-2474

Officials: SYKES, Chief Judge, and KANNE and HAMILTON, Circuit Judges.

Focus: Mootness

Petitioner Dentrell Brown was convicted of murder in an Indiana state court. His trial lawyer failed to object to a serious violation of his constitutional right to confront witnesses against him. The federal district court granted Brown a conditional writ of habeas corpus, and both sides appealed. The State appealed to try to reverse the writ; petitioner Brown cross-appealed seeking an order barring any retrial. While these appeals were pending, the State complied with the writ, resulting in a state court order vacating the original judgment of conviction. Brown has moved to dismiss the State’s appeal and, if we grant dismissal, to dismiss his cross-appeal. We conclude that the state court’s vacatur of the conviction ended this court’s jurisdiction under both 28 U.S.C. § 2254 and Article III of the United States Constitution. We dismiss the State’s appeal as moot and dismiss Brown’s cross-appeal upon his motion.

No. 20-2474, is DISMISSED as moot. No. 20-2473, is GRANTED. Brown’s motion to file a special appendix in No. 20-2474 is DENIED.

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7^th Circuit Court of Appeals

Case Name: The Netherlands Insurance Company, et al., v. Macomb Community Unit School District No. 185, et al.,

Case No.: 20-3510

Officials: EASTERBROOK, BRENNAN, and SCUDDER, Circuit Judges.

Focus: Insurance Claim – Coverage

Two female students brought claims under state law plus Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681–88, against the Macomb School District, Assistant Principal Ed Fulkerson, and Principal John Rumley (collectively the School District). The students alleged that the School District had failed to prevent and inappropriately responded to sexual misconduct by a male student. The students’ complaint, filed on February 16, 2018, alleged that the sexual misconduct and the School District’s responses took place during the spring of 2014 and the fall of 2016. The School District’s insurers received notice of the lawsuit on February 22, 2018.

From December 8, 2017, through December 8, 2018, the School District had two insurance policies: a basic policy from the Netherlands Insurance Company and an umbrella policy from Consolidated Insurance Company. The umbrella policy provides coverage only if the basic policy applies. The basic policy has two relevant provisions. It covers (a) liability for sexual misconduct and molestation, and (b) liability for school leaders’ errors and omissions. After the School District settled the students’ suit for $1.5 million, the insurers brought this suit seeking a declaration of their rights and obligations.

When the School District purchased insurance, it bought a basic policy covering sexual misconduct occurring from December 8, 2017, through December 8, 2018. The School District concedes that its occurrence-based coverage for sexual misconduct cannot apply because the student-on-student sexual misconduct, and the School District’s response to it, occurred outside of the policy period. The provision that the School District contends applies, the coverage for school leaders’ errors and omissions, contains a sexual-misconduct exclusion. That exclusion ensures that the basic policy’s coverage for errors and omissions and coverage for sexual misconduct fit together as parts of a cohesive insurance package. The School District cannot avoid that provision’s sexual-misconduct exclusion or the structure of the basic policy. To put this differently, the judiciary will not read the exclusion to the errors-and-omissions coverage to turn the sexual-misconduct clause from occurrence coverage to claims-made coverage.

Reversed

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7^th Circuit Court of Appeals

Case Name: United States of America v. Bryant Love

Case No.: 20-2131; 20-2297

Officials: FLAUM, MANION, and KANNE, Circuit Judges.

Focus: ACCA Violation

Bryant Love pleaded guilty to multiple drug counts and a felon-in-possession count. The government proposed three prior offenses to trigger the Armed Career Criminal Act’s 15-year mandatory minimum sentence: 1) 1994 Illinois armed robbery; 2) 2009 federal distribution of crack cocaine; and 3) 2015 Indiana Class D battery resulting in bodily injury.

Love argued the ACCA should not apply for two reasons. First, he claimed he received a “restoration of rights” letter without an express reference to guns after he was released on the 1994 Illinois armed robbery conviction. Second, he argued his 2015 Indiana Class D battery-resulting-in-bodily-injury conviction was not a crime of violence under the ACCA.

The judge held the armed robbery conviction was an ACCA predicate but agreed with Love that the battery-resulting-in-bodily-injury conviction was not, as a categorical matter, a “violent felony,” so Love did not have three ACCA predicates so he was not an armed career criminal. The judge sentenced Love to 96 months on each count, to be served concurrently. Love and the government both appeal.

Love argues the judge was wrong about the armed robbery conviction but right about the battery-resulting-in-bodily-injury conviction, and he argues the judge was wrong about two other sentencing issues. The government argues the exact opposite. We agree with the government and reverse and remand.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: Justin Herrera v. Teresa Cleveland

Case No.: 20-2076

Officials: SYKES, Chief Judge, and BRENNAN and SCUDDER, Circuit Judges.

Focus: De Novo Review – Time-barred

Justin Herrera, an Illinois state prisoner, filed a 42 U.S.C. § 1983 action against three correctional officers of the Cook County Jail for failing to protect him from assault and denying him prompt medical care. In his timely filed original complaint, Herrera named each of the defendants “John Doe” as a nominal placeholder until he could ascertain the proper identities of the officers. Herrera then twice amended his complaint to include their actual names—but did so outside of the two-year limitations period.

The officers moved to dismiss Herrera’s claim as time barred, and the district court denied that motion. Reasoning that suing “John Doe” defendants constituted a “mistake” under Federal Rule of Civil Procedure 15(c)(1)(C)(ii), the district court concluded that Herrera’s amended complaint “related back” to his original complaint. The officers then filed this interlocutory appeal. Because knowingly suing a John Doe defendant is not a “mistake” within the meaning of Rule 15(c), we reverse the district court’s judgment.

The officers moved to dismiss Herrera’s claim as time barred, and the district court denied that motion. Reasoning that suing “John Doe” defendants constituted a “mistake” under Federal Rule of Civil Procedure 15(c)(1)(C)(ii), the district court concluded that Herrera’s amended complaint “related back” to his original complaint. The officers then filed this interlocutory appeal. Because knowingly suing a John Doe defendant is not a “mistake” within the meaning of Rule 15(c), we reverse the district court’s judgment.

Reversed and remanded

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7^th Circuit Court of Appeals

Case Name: United States of America v. Edwin Calligan

Case No.: 20-1817

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

Focus: Admission of Evidence

Before his trial on gun and drug charges, Edwin Calligan moved to suppress evidence from the search of a house he frequented. He argued that the underlying warrant was anticipatory and should not have been executed because its triggering condition—the controlled delivery of a package with drugs, addressed to him, that police had intercepted—never occurred. Yet the district court concluded that the warrant was supported by probable cause and had no triggering condition. The court therefore admitted the evidence, and a jury convicted Calligan. Because the district court judge was correct and, in any event, police relied on the warrant in good faith, we affirm.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Karen Scalin, et al., v. Societe Nationale SNCF SA,

Case No.: 18-1887

Officials: EASTERBROOK and SCUDDER, Circuit Judges.

Focus: International Comity – Wartime Injury Remedies

During World War II the Nazi regime in Germany and nations under its domination killed millions of Jews. Plaintiffs in this suit are descendants of Jews rounded up in France after it signed an armistice with Germany in 1940. According to the complaint, persons being sent to death camps were loaded on trains operated by the French national railroad, now known as Société Nationale SNCF. The passengers’ belongings were stolen by railroad workers and handed over to the Nazis. This suit seeks compensation for those thefts.

A system in which a single district judge could countermand the decisions of multiple nations about what remedies are appropriate for wartime injuries inflicted in Europe would be unfortunate. The Executive Branch, not the Judicial Branch, is responsible for foreign relations. One can only imagine the fury in this nation if a French judge were to prescribe how much the United States must pay, and to whom, for the removal of Japanese Americans from the West Coast during World War II or the Trail of Tears in the nineteenth century. Each nation can decide for itself (unilaterally or through treaties) whether reparations for long-past injuries are appropriate. But because plaintiffs lack a substantive claim in this triple-foreign suit, it is unnecessary to say more about international comity.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District I

Case Name: State of Wisconsin v. L.I.,

Case No.: 2021AP816; 2021AP817

Officials: WHITE, J.

Focus: Termination of Parental Rights

L.I. appeals the circuit court orders terminating her parental rights to her children, F.G. and R.G. L.I. argues that the court erroneously weighed the children’s harm from severing the relationship with their respective foster parents against the harm from severing the relationship with their mother. We disagree that the court’s consideration of additional factors constitutes an erroneous exercise of discretion, and accordingly, we affirm.

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WI Court of Appeals – District II

Case Name: Winnebago County v. J.C.S.,

Case No.: 2021AP354

Officials: GUNDRUM, P.J.

Focus: Involuntary Commitment and Medication

J.C.S. appeals from an order of the circuit court for involuntary commitment pursuant to WIS. STAT. ch. 51 and also challenges an order for involuntary medication and treatment. She argues that Winnebago County failed to introduce sufficient evidence that she was a “proper subject for treatment” under ch. 51, and thus, the circuit court erred in ordering her commitment and the involuntary administration of medication and treatment. We disagree and affirm.

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WI Court of Appeals – District IV

Case Name: Patrick S. Sweeney, et al., v. Frank Liquor Co. Inc., et al.,

Case No.: 2020AP435

Officials: Kloppenburg, Fitzpatrick, and Graham, JJ.

Focus: Contracts – Time-barred

Patrick S. Sweeney appeals a final order and judgment dismissing his claims against Frank Liquor Co. Inc., Fairview Ridge LLC, Fairview Ridge II LLC, Fairview Ridge III LLC, Joel Frank, Janna Frank, and Justin Frank. Sweeney’s claims arise out of a business relationship he had with Joel Frank and Frank Liquor, which spanned several years and ended no later than 2013. Sweeney alleges that he is owed various fees for management and consulting work.

We conclude that the circuit court correctly determined that Sweeney’s claims against the Frank Defendants are barred by the applicable statute of limitations. We further conclude that, even if the court committed any of the procedural errors Sweeney claims on appeal, any error was harmless. Accordingly, we affirm.

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WI Court of Appeals – District IV

Case Name: Christopher Hookstead v. Gary Beal, et al.,

Case No.: 2020AP895

Officials: Blanchard, P.J., Graham, and Nashold, JJ.

Focus: Punitive Damage

Christopher Hookstead filed an adverse possession claim for title to a strip of land that separates his property from property held by Gary and Peri Beal. This claim was tried to a jury, along with counterclaims made by the Beals for common law trespass and conversion as well as a counterclaim pursued under WIS. STAT. § 895.446(1) (2019-20) for property damage caused by a crime. The jury found in the Beals’ favor on all issues. This included awarding the Beals punitive damages of $250,000, which the circuit court reduced to $200,000. Hookstead appeals the judgment and the circuit court’s order denying his post-verdict motions for a new trial or in the alternative to reduce the punitive damages award. We affirm all of the challenged circuit court decisions.

Hookstead argues that the circuit court should not have rejected his request to give the jury a special verdict question that would have distinguished one portion of the disputed property from another. We conclude that the court did not erroneously exercise its discretion in making this decision. This is because Hookstead made this request for the first time after the close of evidence at trial and the court could reasonably conclude that, up to that point, Hookstead had made only an all-or-nothing adverse possession claim, and had not claimed entitlement to just a portion of the disputed property.

Regarding some of the Beals’ counterclaims for “property damage or loss caused by crime,” Hookstead argues that the circuit court erred in rejecting Hookstead’s request to apply the two-year statute of limitations in WIS. STAT. § 893.93(2)(a), which governs actions “by a private party upon a statute penalty.” Construing § 893.93(2)(a) narrowly, we conclude that a civil action under WIS. STAT. § 895.446(1) is not an action “by a private party upon a statute penalty.” Regarding the punitive damage award, Hookstead argues that the circuit court erred in ruling that the amount awarded did not violate the due process clause. We agree with the circuit court on this issue.

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WI Court of Appeals – District IV

Case Name: Dale Ryant v. Summit Commercial Fitness, Inc., et al.,

Case No.: 2020AP1281

Officials: Blanchard, P.J., Fitzpatrick, and Graham, JJ.

Focus: Product Liability – Negligence

Dale Ryant was injured while using exercise equipment in the fitness room in the apartment building where he was living. Ryant brought negligence and strict products liability claims in the La Crosse County Circuit Court against Summit Commercial Fitness, the company that sold the exercise equipment to the apartment building manager. Summit moved for summary judgment on both claims, and the circuit court granted the motion. Ryant appeals the court’s summary judgment decisions regarding his negligence and strict liability claims.

We affirm the rulings of the circuit court. First, Ryant’s products liability claim fails because Ryant fails to adequately support his argument challenging the circuit court ruling in briefing in this court. Second, Ryant’s negligence claim fails because public policy considerations dictate that Summit should not be held liable for Ryant’s injuries

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WI Court of Appeals – District IV

Case Name: Auto-Chlor System of the Mid-South, LLC, v. Doug Ehlert

Case No.: 2020AP1768

Officials: Blanchard, P.J., Kloppenburg, and Fitzpatrick, JJ.

Focus: Breach of Noncompetition Agreement

Auto-Chlor System of the Mid-West, LLC, sued Doug Ehlert for breach of a noncompetition agreement. Ehlert moved for summary judgment on the ground that the noncompetition agreement is unenforceable. Auto-Chlor agrees that the noncompetition agreement is unenforceable if it is subject to WIS. STAT. § 103.465 (2019-20), which governs noncompetition agreements in employment contracts. Auto-Chlor argues that the circuit court erred in concluding that the noncompetition agreement is subject to § 103.465 and, on that basis, erred in granting summary judgment for Ehlert and dismissing Auto-Chlor’s complaint. Specifically, Auto-Chlor argues that the court erred in determining that the noncompetition agreement by its unambiguous terms required Ehlert to sign the noncompetition agreement as a condition of his employment with Auto-Chlor. We reject Auto-Chlor’s argument and, therefore, affirm.

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WI Court of Appeals – District IV

Case Name: Portage County v. Sean Michael Dugan

Case No.: 2021AP454; 2021AP455

Officials: FITZPATRICK, J.

Focus: Probably Cause – Suppression of Evidence  

Sean Dugan was stopped by an officer on suspicion of operating a motor vehicle while intoxicated. There was inclement weather at the time of the stop, and the officer directed Dugan to perform field sobriety tests on the side of the road. After those tests, the officer placed Dugan under arrest, transported him to a hospital to have his blood drawn, and the draw established that Dugan’s blood had .268g/100mL ethanol. As a result, Dugan was charged with operating a vehicle while intoxicated in the Portage County Circuit Court. Dugan moved to suppress the results of the blood draw on the ground that his detention and arrest violated the Fourth Amendment because the officer did not transport Dugan to a location sheltered from the weather to perform the field sobriety tests. Dugan also argued that the officer lacked probable cause to arrest. The circuit court denied Dugan’s suppression motion, and later found Dugan guilty after a court trial. Dugan appeals the judgment. I affirm.

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WI Court of Appeals – District IV

Case Name: Jackson County v. T.A.L.,

Case No.: 2021AP499

Officials: NASHOLD, J.

Focus: Involuntary Commitment – Transfers

T.A.L. was committed to the care and custody of Jackson County under WIS. STAT. ch. 51. He was originally ordered to outpatient treatment but was transferred to an inpatient facility after he stabbed himself. T.A.L. appeals from a circuit court order determining that the transfer complied with the requirements of WIS. STAT. § 51.35, the statute governing transfers of ch. 51 patients between treatment settings. I affirm.

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