En banc Berry v. Leslie case settles before opinion

This is a weird one -- the case involving the SWAT team storming the barbershop for licensing violations was settled after oral argument but before the opinion issued.  Here's the en banc order dismissing the case.

The panel decision by Judge Rosenbaum (her first published opinion) was a good one, which started this way:

 It was a scene right out of a Hollywood movie.  On August 21, 2010, after more than a month of planning, teams from the Orange County Sheriff’s Office descended on multiple target locations.  They blocked the entrances and exits to the parking lots so no one could leave and no one could enter.  With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants—and demanded to see their barbers’ licenses.  The Orange County Sheriff’s Office was providing muscle for the Florida Department of Business and Professional Regulation’s administrative inspection of barbershops to discover licensing violations.   We first held nineteen years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights.  See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriff’s Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity.  See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007).  Today, we repeat that same message once again.  We hope that the third time will be the charm.

Judge William Pryor concurred and dissented from the opinion, with this intro:

I agree with the majority opinion that the search of the barbershop exceeded the scope of a reasonable administrative inspection and that the barbers presented evidence that Corporal Keith Vidler, as the supervisor, violated their clearly established constitutional rights. I also agree that Brian Berry presented evidence that Deputy Travis Leslie, who handcuffed Berry and patted him down, violated his clearly established constitutional rights. But Edwyn Durant, Reginald Trammon, and Jermario Anderson presented no evidence that Deputy Travis Leslie violated their constitutional rights. Even though the inspection of the barbershop appeared to be “a scene right out of a Hollywood movie” (Majority Op. at 1), we cannot bend the law to resolve this appeal with a feel-good ending from a boxoffice hit. The law entitles Leslie to qualified immunity against any barber who failed to present evidence that Leslie personally deprived him of a clearly established constitutional right. Durant, Trammon, and Anderson failed to prove an affirmative causal connection between their specific injuries and Leslie’s conduct. For that reason, I respectfully concur in part and dissent in part. 

News & Notes

1.  Gang members arrested in Broward, via Paula McMahon.

2.  @_FloridaMan is the subject of this fun NY Times article by Lizette Alvarez.  A bunch of other Florida men are quoted -- Billy Corben, Roy Black, Dave Berry, and Carl Hiaasen:

California’s kumbaya vibe is absent here, and so is Texas’ ideological fervor. With so many transplants, allegiances lie elsewhere. New arrivals are often shocked to find that South Florida is segregated, cliquish, brazenly rude and typically indifferent to most annoyances, including its maniacal drivers.

“That’s the most common misconception about Florida — that we are a melting pot,” said Billy Corben, who has made several Florida-esque documentaries, including “Cocaine Cowboys,” about the rise of cocaine violence and capitalism here in the 1970s and 1980s. “We are more akin to a TV dinner, where sometimes the peas spill over into the mashed potatoes.”

“As long as the Champagne is flowing and the checks are clearing,” he added, “nobody asks a lot of questions here about anything.”

Drugs and the weather are also culprits. The steaminess adds to the seaminess. And outdoor living makes for easy viewing and recording. As Mr. Barry put it, people do drugs and act erratically elsewhere. “But it’s not warm outside all the time everywhere,” he said. “In Ohio, they stay indoors.”

Here, reinvention remains the national pastime, which is why hucksters and criminals do quite nicely.

“As they say,” Mr. Corben remarked, “Los Angeles is where you go when you want to be somebody. New York is where you go when you are somebody. Miami is where you go when you want to be somebody else.”

3.  The Steve Chaykin ethics seminar is this Friday at U.M.  Looks to be a good conference in spite of the fact that yours truly will be speaking on social media.  

4.  Bernie Roman is out as the Miccosukee's lawyer.  Via the DBR:

"We have been notified this morning … that we no longer represent the Miccosukee tribe and that I am no longer their tribal attorney," Roman said, according to a transcript of Thursday's hearing.

Salomon Melgen denied bail

 From the Palm Beach Post:

Despite claims by Melgen’s attorneys that he had no intention of fleeing to his native Dominican Republic, U.S. Magistrate James Hopkins denied their request to allow the 60-year-old doctor to post a sizable bond, secured by property worth millions, so he can help them prepare for his trial, now scheduled for Feb. 22.
“There are no combination of conditions that will reasonably assure the appearance of the defendant,” Hopkins ruled. “I will order that he be detained as a risk of flight.”
Not only does Melgen face a possible life sentence if convicted of 76 charges of health-care fraud but he, along with his longtime friend Sen. Robert Menendez, D-N.J., is charged in New Jersey with operating a bribery scheme, Hopkins noted.
Further, he said, an extradition treaty between the U.S. and the Dominican may not cover health-care fraud. If Melgen decides to flee to his island homeland — where he has luxury homes, bank accounts and links to top government officials — prosecutors may never be able to bring him back to stand trial, he said.
Melgen, who federal prosecutors said earned $1 million a month treating patients at clinics in West Palm Beach, Wellington, Delray Beach and Port St. Lucie, smiled weakly at his wife, son and daughter as he was led from the courtroom in shackles. His wife, Flor, collapsed against the couple’s daughter Melissa in tears.

Seems hard to imagine that Melgen should be detained.  He's a 60-year old doctor with no criminal history.  I would expect that he gets bail from the district judge, especially since he already got bond in New Jersey where the judge found that he was not a risk of flight. 

Lindsay MacDonald selected for Stuart A. Markus award

Friends and readers of the blog know that my family set up an award in my Dad's name at the University of Miami School of Law.  The Stuart A. Markus Award recognizes an individual student each year for outstanding work in one of the School of Law’s in-house clinics. The winner is selected by vote of the in-house, live-client clinic directors.  The first award went to Bethany Bandstra.

This year the Markus Award went to Lindsay MacDonald, a student in Rebecca Sharpless’ immigration clinic. Highlights of her clinical work include: litigating a habeas petition in U.S. District Court for a transgender Haitian woman that challenged the legality of her prolonged immigration detention; writing the Eleventh Circuit briefs in the same woman’s asylum case; working on a motion to suppress in immigration court in a case where immigration agents profiled our client in violation of the Fourth Amendment; preparing two cancellation of removal cases in immigration court and litigating one to an adversarial merits hearing; litigating a legally and factually complex dependency case in Broward for an unaccompanied border child that required a deposition of her father as well as numerous court appearances over the course of many months; and authoring the Eleventh Circuit brief in a multi-issue case that is the most complex the Clinic has handled to date. Lindsay was scheduled this April to do the Eleventh Circuit oral argument in the transgender client’s case, but the court rescheduled the case until June. Lindsay has earned no fewer than 10 Dean’s Certificates/CALI awards or their equivalents in her classes and is third in her class of 412.

 

Stuart A. Markus (BED ’54, J.D. ‘57) practiced law in Miami for over 50 years.  Throughout his career, Stuart fought hard for his clients in every area of the law.  He never turned away a person in need, and helped countless people with practical, hands-on advice and representation that went far above and beyond the norm.  The Markus Award is given annually to a student who shares that caring spirit, and who has made a meaningful difference in someone’s life – which is something Stuart did every day.

Congratulations to Lindsay!

Appellate happenings

So everyone is talking about the Second Circuit opinion today which held that the Patriot Act did not authorize NSA to snoop on all of our phone call records.

In the meantime, everyone missed this D.C. Circuit case, which starts out with a Friends reference:

In an episode of the iconic 1990s television show Friends, Joey Tribbiani tries to dissuade Rachel Green from moving to Paris. Joey asks Rachel to flip a coin. If he wins the coin flip, she must agree to stay. Rachel flips the coin; Joey loses. When later recounting the story to Ross Gellar, a befuddled Joey says, “[w]ho loses fifty-seven coin tosses in a row?” Friends: The One with Rachel’s Going Away Party (NBC television broadcast Apr. 29, 2004). Before Ross can answer, Joey explains Rachel’s rules: “Heads, she wins; tails, I lose.” Id.

"There is no support for the assertion that Watkins had a First Amendment right to sing any sort of song in the post office lobby while standing in the service line."

That's the conclusion in this 11th Circuit unpublished decision, which starts out:

This case ensued after plaintiff-appellant Eric Watkins was asked to leave a post office and was denied service because he refused to stop singing. Watkins brought suit against defendant-appellee Jackie White, the postal employee who asked Watkins to leave and did not allow Watkins to purchase a post office box after he disregarded her instruction to stop singing. Proceeding pro se, Watkins appeals the district court’s order granting White’s motion to dismiss for failure to state a claim, averring that White violated his right to free speech under the First Amendment to the United States Constitution.
On appeal, Watkins argues that he established a cognizable First Amendment claim because White retaliated against him for his exercise of free speech by ordering him to leave the post office and not permitting him to buy a mailbox while singing. Watkins contends that the lyrics to the song he was singing were “antigay” and that White restricted his speech based on its content. He further avers that White did not have the authority to restrict his speech. However, upon review of the record and consideration of the parties’ briefs, we find that the restriction on Watkins’s speech was reasonable and that White is entitled to qualified immunity. Thus, we affirm the district court’s dismissal of the case.

GUEST POST BY BRIAN TOTH ON USA v. QUARTAVIOUS DAVIS

Brian Toth wrote the following Guest Post on the en banc Davis case:

The Eleventh Circuit Decides United States v. Davis En Banc

In a decision that didn’t much matter for the individual defendant but mattered greatly for how law enforcement goes about its business in today’s technological age, the U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, held today that the government didn’t violate Quartavious Davis’s Fourth Amendment rights by obtaining in accordance with a federal statute historical cell-tower information from the business records of a service provider without a search warrant and without a showing of probable cause. An earlier panel—authored by a judge sitting by designation and joined by Judges Martin and Dubina—concluded otherwise, but nonetheless affirmed Mr. Davis’s convictions because law enforcement had acted in good faith (an exception to the exclusionary rule). The Government sought rehearing en banc of the portion of the panel opinion holding that a Fourth Amendment violation occurred. Expectedly (sorry, David), the Government’s position carried the day.

Mr. Davis, a “prolific cell phone user,” made 86 phone calls a day from his cell phone during the course of a two-month period in which he and several others committed seven armed robberies in South Florida. As permitted by, and in compliance with, the Stored Communications Act, the Government sought and obtained a court order requiring MetroPCS to produce telephone records from that two-month period, which contained certain information about Mr. Davis’s telephone calls and about the cell towers that connected those calls. Before trial, Mr. Davis moved to suppress those records, asserting that their production was a search that required probable cause and a warrant. That motion was denied, and the Government used that information at trial to show that Mr. Davis was physically near the robberies when they occurred.

Writing the majority opinion for the en banc court, Judge Hull relied chiefly on the so-called third-party doctrine, which roughly holds that you have no reasonable expectation of privacy in information that you voluntarily hand over to third parties (and thus no “search” of the information occurs within the meaning of the Fourth Amendment). Comparing Mr. Davis’s case to the facts in a pair of Supreme Court decisions concerning the third-party doctrine, Judge Hull explained that Mr. Davis didn’t have a reasonable expectation of privacy in the cell-tower records:

For starters, like the bank customer in Miller and the phone customer in

Smith, Davis can assert neither ownership nor possession of the third-party’s

business records he sought to suppress. Instead, those cell tower records were

created by MetroPCS, stored on its own premises, and subject to its control. Cell

tower location records do not contain private communications of the subscriber.

This type of non-content evidence, lawfully created by a third-party telephone

company for legitimate business purposes, does not belong to Davis, even if it

concerns him. Like the security camera surveillance images introduced into

evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold.

Those surveillance camera images show Davis’s location at the precise location of

the robbery, which is far more than MetroPCS’s cell tower location records show.

More importantly, like the bank customer in Miller and the phone customer in Smith, Davis has no subjective or objective reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls at or near the time of six of the seven robberies.

Judge Hull’s opinion also concluded that even if obtaining the cell-tower records had constituted a search under the Fourth Amendment, the search was nonetheless reasonable:

Davis had at most a diminished expectation of privacy in business records made, kept, and owned by MetroPCS; the production of those records did not entail a serious invasion of any such privacy interest, particularly in light of the privacy-protecting provisions of the SCA; the disclosure of such records pursuant to a court order authorized by Congress served substantial governmental interests; and, given the strong presumption of constitutionality applicable here, any residual doubts concerning the reasonableness of any arguable “search” should be resolved in favor of the government. Hence, the § 2703(d) order permitting government access to MetroPCS’s records comports with applicable Fourth Amendment principles and is not constitutionally unreasonable.

There were other opinions.

Concurring in full, Judge William Pryor wrote “to explain that a court order compelling a telephone company to disclose cell tower location information would not violate a cell phone user’s rights under the Fourth Amendment even in the absence of the protections afforded by the Stored Communications Act.”

Concurring in the judgment, Judge Jordan, joined by Judge Wilson, expressed “concerns about the government being able to conduct 24/7 electronic tracking (live or historical) in the years to come without an appropriate judicial order.” Judge Jordan would’ve ruled on narrower grounds—assuming that Mr. Davis had a reasonable expectation of privacy but holding “that the government satisfied the Fourth Amendment’s reasonableness requirement by using the procedures set forth in 18 U.S.C. § 2703(d) to obtain a court order for Mr. Davis’ cell site records.”

Judge Rosenbaum, concurring in the majority opinion, wrote separately because she thought “that the third-party doctrine, as it relates to modern technology, warrants additional consideration and discussion.”

And Judge Martin, joined by Judge Jill Pryor—the newest member of the Court—dissented:

In this case, the government got 67 days of cell site location data disclosing

Quartavious Davis’s location every time he made or received a call on his cell

phone. It got all this without obtaining a warrant. During that time, Mr. Davis

made or received 5,803 phone calls, so the prosecution had 11,606 data points

about Mr. Davis’s location. We are asked to decide whether the government’s

actions violated Mr. Davis’s Fourth Amendment rights. The majority says our

analysis is dictated by the third-party doctrine, a rule the Supreme Court developed almost forty years ago in the context of bank records and telephone numbers. But such an expansive application of the third-party doctrine would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas.

Decades ago, the Supreme Court observed that “[i]f times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, . . . the values served by the Fourth Amendment [are] more, not less, important.” Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 2032 (1971). This is even truer today. The judiciary must not allow the ubiquity of technology—which threatens to cause greater and greater intrusions into our private lives—to erode our constitutional protections. With that in mind, and given the striking scope of the search in this case, I would hold that the Fourth Amendment requires the government to get a warrant before accessing 67 days of the near-constant cell site location data transmitted from Mr. Davis’s phone. I respectfully dissent.

All told, the five opinions making up this decision span 102 pages. Fortunately, footnote 21 of the majority opinion summarizes the result.

 

May the 4th be with you

Nerd out!

Okay, now that that's out of the way, check out this front page article from the Washington Post about the aging prison population:

Harsh sentencing policies, including mandatory minimums, continue to have lasting consequences for inmates and the nation’s prison system. Today, prisoners 50 and older represent the fastest-growing population in crowded federal correctional facilities, their ranks having swelled by 25 percent to nearly 31,000 from 2009 to 2013.

Some prisons have needed to set up geriatric wards, while others have effectively been turned into convalescent homes.

The aging of the prison population is driving health-care costs being borne by American taxpayers. The Bureau of Prisons saw health-care expenses for inmates increase 55 percent from 2006 to 2013, when it spent more than $1 billion. That figure is nearly equal to the entire budget of the U.S. Marshals Service or the Bureau of Alcohol, Tobacco, Firearms and Explosives, according to the Justice Department’s inspector general, who is conducting a review of the impact of the aging inmate population on prison activities, housing and costs.

“Our federal prisons are starting to resemble nursing homes surrounded with razor wire,” said Julie Stewart, president and founder of Families Against Mandatory Minimums. “It makes no sense fiscally, or from the perspective of human compassion, to incarcerate men and women who pose no threat to public safety and have long since paid for their crime. We need to repeal the absurd mandatory minimum sentences that keep them there.”

The Obama administration is trying to overhaul the criminal justice system by allowing prisoners who meet certain criteria to be released early through clemency and urging prosecutors to reserve the most severe drug charges for serious, high-level offenders.

At the same time, the U.S. Sentencing Commission, an independent agency, has made tens of thousands of incarcerated drug offenders eligible for reduced sentences.

But until more elderly prisoners are discharged — either through compassionate release programs or the clemency initiative started by then-attorney general Eric H. Holder Jr. last year — the government will be forced to spend more to serve the population. Among other expenditures, that means hiring additional nurses and redesigning prisons — installing showers that can be used by the elderly, for instance, or ensuring that entryways are wheelchair-accessible.

 I'm hopeful that judges will take note and start ordering alternative sentences -- especially for first-time non-violent offenders -- that will help society instead of just warehousing people.  May the force be with you!