Docket – April 24, 2019

4th U.S. Circuit Court of Appeals

Am. Ass’n of Political Consultants Inc. v. FCC (P), 4th Cir. (King) from EDNC at Raleigh (Dever).

An exemption to the Telephone Consumer Protect Act authorizing robocalls related to collection of debts owed to the government violates the Free Speech Clause. The district court erred in holding otherwise and thus in granting summary judgment to the government.

Here, a political polling group and other plaintiffs have argued that the “debt-collection exemption” is unconstitutional and cannot be severed from the entire Act; therefore, the entire ban on robocalls is unconstitutional. This court agrees the exemption does not pass the applicable strict scrutiny review, but the exemption may nevertheless be severed, leaving the remainder of the Act intact.

Vacated and remanded.

United States v. Dennings (P), 4th Cir. (Agee) from EDNC at Raleigh (Howard).

The district court properly calculated the defendant’s Sentencing Guidelines range by including an offense characteristic enhancement for reckless endangerment during flight on foot.

Here, the defendant’s situation involved flight plus something more. He fled from police sirens after having discharged a firearm. The record reflects that while he was running, he behaved differently with his right hand than his left, his right hand was holding or reaching near a firearm located in his jacket pocket, and he was hesitant in relinquishing control of his right arm when that arm was also on or near a firearm.

Rather than being mere “instinctive flight,” the defendant’s conduct created a substantial risk of death or serious bodily injury as required for § 3C1.2 to apply. His firearm could have discharged, intentionally or accidentally, or his behavior could have led the pursuing officer to draw his own firearm in self-defense. Either of these circumstances would have created a risk to the officer chasing him, the other officers who were responding to the report of gunshots, or innocent bystanders in the area. That no one was injured during these events is of no moment because § 3C1.2 requires only that the defendant’s conduct create a risk of that occurring. Furthermore, Dennings’ conduct was reckless.

Affirmed.

U.S. District Court – Virginia Eastern

Atkins Nuclear Secured LLC v. Aptim Fed. Servs. LLC, EDVA at Alexandria (Trenga).

No sanctions will be ordered against the defendant who first indicated through in-house counsel that it would not challenge federal diversity jurisdiction, but then changed that position when outside counsel learned that its corporate citizenship destroyed diversity jurisdiction. The plaintiff consented to dismissal.

While in-house counsel’s conduct may have been reckless, it does not meet the subjective bad-faith standard so as to support a sanctions in the form of attorneys’ fees and costs.

Motion for sanctions denied.

Hagans v. City of Norfolk, EDVA at Norfolk (Allen).

The City of Norfolk is entitled to summary judgment as to a plaintiff’s claim that he had a due process right to continued employment. He had worked as a child counselor at a juvenile detention center and was terminated after an administrative finding of child abuse.

No lack of notice or opportunity prevented the plaintiff from impeaching the witnesses who testified at his grievance hearing or from procuring more favorable testimony. Instead, several witnesses testified at the hearing and were subject to cross-examination. The plaintiff had a full and equal opportunity to present his evidence. His failure to persuade the grievance panel does not violate the Due Process Clause.

Moreover, the grievance panel’s consideration of hearsay evidence also didn’t violate the plaintiff’s due process rights because he had multiple avenues to tell his side of the story. Procedural due process is also not violated by deviation from city or state grievance procedures. The plaintiff has failed to raise a genuine issue of material fact regarding the constitutionality of the process he was provided.

Motion for summary judgment granted.

United States v. Peterson, EDVA at Richmond (Gibney).

The court will suppress the fruits of a strip search of the defendant, but not the fruits of a search of his car.

Although a police dog’s weak responses alone didn’t give officers probable cause to believe that the defendant’s car contained illegal drugs, the totality of the circumstances did establish probable cause. A GPS tracker on the defendant’s car showed that he was traveling from a high-crime area and heroin source city. The searching officer had participated in investigating the defendant prior to the search, and the defendant’s interactions with the officers gave rise to their reasonable suspicion that he had contraband in his car.

However, the defendant was required to remove all of his clothing even though he had already been frisked multiple times, and officers had no safety concerns. They simply had a hunch that the defendant had illegal drugs hidden under his clothes. Contrary to the government’s argument, mere presence in a jail to appear before a magistrate and for processing cannot give open license for sailors to conduct sexually invasive strip searches of arrestees.

Motion to suppress granted in part and denied in part.



Categories: Daily Dockets

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