Throwback Thursday: en banc edition

Let’s first throw back to Freddy’s post on the Wollschlaeger v. Florida decision, which held constitutional a law restricting what doctors can say to their patients about guns. Yesterday First Amendment scholar Eugene Volokh wrote a lengthy post about the Eleventh Circuit’s 2-to-1 decision on his influential blog. Volokh concludes that “the court is mistaken, and the law should have been held to violate the First Amendment.” He goes on:

[E]ven intermediate scrutiny—if that’s the right test—requires some serious justification for a speech restriction. Among other things, it requires that there be a “reasonable fit” between the speech restriction and the supposedly important reasons justifying the restriction. And here … there’s no such fit.

In the comments to Freddy’s post, someone expressed displeasure with the decision, writing that this is “another important case” where—and I’m editorializing slightly—the deciding vote on appeal was made by a district judge sitting by designation. This raises a question, irrespective of the merits of this undoubtedly important case: Should the fact that there was only one active Eleventh Circuit judge in the majority be considered in deciding whether to rehear the case en banc?

My initial inclination is that it shouldn’t be. Federal Rule of Appellate Procedure 35, which sets forth the standard for when rehearing en banc should be had, says nothing about it. Considering the composition of the judges in the majority may lead to more rehearings en banc. And treating differently decisions in which visiting judges are in the majority just doesn’t seem appropriate.

But it’s an interesting question, and others think that where a dispositive vote is made by a district judge sitting by designation, “experience teaches that the case has a better than average chance of rehearing en banc.”

***

Remember United States v. Davis, the en banc decision on the constitutionality of obtaining without a warrant cell-site information that we covered a few months ago?

Yesterday, Judge Koh of the U.S. District Court for the Northern District of California issued a lengthy order affirming the denial of the government’s application for historical cell-site location information, stating that where “an individual has not voluntarily conveyed information to a third party, her expectation of privacy in that information is not defeated under the third-party doctrine.” Judge Koh said her decision was “not at odds” with Davis, which she said, citing Judge Jordan’s concurrence, was “limited by its facts.” Judge Koh also quoted Judge Martin’s dissent in concluding that the government must “secure a warrant supported by probable cause in order to obtain a cell phone user’s historical [cell-site location information].”

Docs v. Glocks Redux

Nearly a year to the day after issuing its original decision, a panel of Judges Tjoflat, Wilson, and Coogler vacated and substituted its opinion in Wollschlaeger v. Governor of the State of Florida. The ACLU reacted (as a disclaimer, my firm represents the ACLU as amicus curiae):

 MIAMI, FL – Today, a three-judge panel of the 11^th Circuit Court of Appeals issued an opinion reaffirming its July 2014 decision upholding the constitutionality of a Florida law banning doctors from discussing the safe storage of guns in their patients’ homes.  The three-judge panel’s decision comes in the case of Wollschlaeger v. Florida – often referred to as the “docs v. glocks” case – in which doctors had challenged the 2011 law as a violation of free speech.
The American Civil Liberties Union (ACLU) of Florida, along with leading medical and child welfare organizations, had filed a friend-of-the court brief in the case, co-authored by attorneys Tom Julin and Gerald Greenberg, arguing that the law unconstitutionally restricts the free speech rights of medical personnel and hampers their ability to protect the health and safety of their patients.
A district court had previously found the law to be unconstitutional, but the same three-judge panel that issued today’s ruling had overturned the district court’s ruling in July 2014. Today’s order reaffirms that 2014 decision and also vacates an injunction that the district court had put on enforcement of the law, meaning the law now goes into effect.
Responding to today’s news, Howard Simon, Executive Director of the ACLU of Florida, stated:

“This is a sad day for Florida doctors, their patients, and for free speech as this unconstitutional law now goes into effect. Doctors and medical personnel throughout Florida are – today – under new orders: talk to your patients about gun safety and risk losing your right to practice medicine in Florida.

“We cannot be surprised that the same two judges who determined that ‘patient-privacy’ trumps constitutionally protected free speech would reiterate that view,.Their doing so in this way has allowed this unconstitutional law to go into effect and reset the clock on appeals. Because of today’s ruling, this pointless restriction on free speech will go into effect – for now.”

 “The Legislature’s unconstitutional effort to stop doctors from talking to their patients about measures to keep kids safe when there are guns in the home is not simply a violation of doctor’s free speech, it is also dangerous policy. Needing to score political points with those who believe the government is ‘coming for our guns’ is not a good enough reason to ban conversations between doctors and their patients– especially when those conversations are important for public health and could save lives.

“With the ongoing crisis of gun violence plaguing our country, it should not be a crime for public health professionals to ask parents questions about gun storage and offer common-sense advice about firearm safety in the home. The First Amendment and the Second Amendment are not at odds; encouraging parents to safely store their guns so they stay out of the hands of children does not threaten the right to own a gun. Gagging these conversations not only advances no public policy goal, but could be destructive for our society.”

“This dangerous policy needs to be stopped here in Florida before, like a cancer, it spreads to other states. Just as they had asked the full court to review last summer’s ruling, we expect that the plaintiffs will likely appeal this order, and we are hopeful that freedom of speech – and common sense – will prevail.”

The ACLU of Florida’s amicus brief in the case, filed with Alachua County Medical Society, Broward County Medical Association, Broward County Pediatric Society, Palm Beach County Medical Society, Florida Public Health Association, University of Miami School of Law Children and Youth Clinic, Children’s Healthcare Is a Legal Duty, Inc., and Early Childhood Initiative Foundation, is available here:
http://aclufl.org/resources/amicus-brief-in-wollenschlaeger-v-florida/

When dealing with shotgun pleadings, are we following the law?

Every so often—as our friend South Florida Lawyers has pointed out—the Eleventh Circuit tells us something about “shotgun pleadings,” which, roughly, are pleadings that don’t conform to the federal pleading standards found in Federal Rules of Civil Procedure 8 and 10. In a pair of decisions issued this month, the Eleventh Circuit told us how properly to respond to or deal with shotgun pleadings. But do we—lawyers and judges of the Southern District of Florida—follow the Eleventh Circuit’s advice?

In Weiland v. Palm Beach County Sheriff’sOffice, the court, per Chief Judge Carnes, “examined more than sixty published decisions since” Judge Tjoflat used the term “shotgun pleading” in a 1985 dissenting opinion, and “identified four rough types or categories of shotgun pleadings.” Chief Judge Carnes also restated the procedure on dealing with shotgun pleadings, thus:

While plaintiffs have the responsibility of drafting complaints, defendants are not without a duty of their own in this area. We have said that a defendant faced with a shotgun pleading should “move the court, pursuant to Rule 12(e), to require the plaintiff to file a more definite statement.” But we have also advised that when a defendant fails to do so, the district court ought to take the initiative to dismiss or strike the shotgun pleading and give the plaintiff an opportunity to replead. Where a plaintiff fails to make meaningful modifications to her complaint, a district court may dismiss the case under the authority of either Rule 41(b) or the court’s inherent power to manage its docket.

The second decision (unpublished) gave similar instructions.

My sense is that lawyers and judges of the Southern District of Florida rarely, if ever, follow these instructions, however well-established they may be. If my sense is correct, I suspect that there are a few reasons for this.

First, the instructions don’t fit with practice. It’s not uncommon to encounter the “most common type” of shotgun pleading (especially if the complaint is written by an out-of-circuit lawyer). Per Chief Judge Carnes, “[t]he most common type—by a long shot—is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint.” But Rule 12(e), which is designed for pleadings that are “so vague or ambiguous that the party cannot reasonably prepare a response,” is often ill-suited for this kind of shotgun pleading. After all, just because one count’s allegations are incorporated into another doesn’t necessarily render the complaint unreasonably difficult to respond to. So you move to dismiss, instead.

A second reason is timing. Our judges, as they often say, are busy. And it can take months—even for relatively straightforward threshold motions—to be fully briefed and decided. Meanwhile, the parties are off and running with discovery. So even if you might otherwise be inclined to seek a more definite statement, you’ll more likely seek a dismissal.

Finally, I suspect that our judges, given their large case loads, can’t usually devote their resources to scanning new cases for shotgun pleadings and to ordering re-dos. True, many of our judges will order a new complaint (or throw you out of court entirely) if you fail, say, to properly plead diversity of citizenship. But if jurisdiction isn’t obviously a problem, judges might simply prefer to leave it to the litigants to point out a complaint’s deficiencies, which is in keeping with what judges usually do. In an albeit different context, Judge Tjoflat, in an important decision, once cautioned district courts not to do the work that litigants should do: “Our adversarial system requires it; district courts cannot concoct or resurrect arguments neither made nor advanced by the parties.”

To be sure, I’m not advocating that we should intentionally disregard the Eleventh Circuit’s well-established procedures on dealing with shotgun pleadings. I do suspect, however, that they’re not being followed, or being followed only rarely. 

John Oliver on Minimum Mandatory Sentences!

Does this resonate with any of you?

Day 1 for guest bloggers: FAIL

Well, that was a bust. Sorry readers. Hopefully more content will come through soon. In the meantime, here's Paula McMahon on a new fraud case:

Eight more South Florida residents have been indicted on federal charges they were involved in a fraud conspiracy that pressured seniors to invest in what they thought was valuable technology the NFL was going to use, prosecutors said Monday.

Guest Bloggers Unite!

I'm taking a little blog sabbatical (two weeks) ... so please enjoy the roster of guest bloggers while I'm gone (I still may pop in from time to time).  --dm

KHAN!!!!!!!!

The 11th Circuit affirmed the conviction for Hafiz Khan today. He was the one defendant who was convicted at trial (Judge Scola dismissed the case against the son).  From the intro of Judge Tjoflat's opinion:

This appeal concerns the challenging twenty-nine day trial of Hafiz Muhammad Sher Ali Khan. A federal grand jury indicted Khan in 2011 on terrorism-related charges. At trial, the Government presented evidence demonstrating Khan’s involvement in the transfer of money to members of the Tehrik-e Taliban Pakistan, a foreign terrorist organization also known as the Pakistani Taliban. The jury convicted Khan on all counts: conspiring to provide (Count 1), and providing or attempting to provide (Count 3), material support to terrorists, in violation of 18 U.S.C. § 2339A; and conspiring to provide (Count 2), and providing or attempting to provide (Count 4), material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B. Khan now appeals his convictions. After careful review, we affirm.

 And of course, Khan!:

"Obama Got To Visit Federal Prisoners. The Family Of This Inmate Who Had Brain Surgery Can't."

That's the headline of this HuffPost article in which Marc Seitles is fighting BOP for his client's family to have the right to see him while he is in the hospital:

On July 1, a doctor went to conduct that evaluation, but found that Pierre was no longer at the prison. Seitles was soon informed that Pierre had been hospitalized full-time nine days earlier because of high fever and headaches, and that he was having brain surgery the following day to remove a pituitary tumor.
Seitles wasn't told about this major development, which involved the removal of a tumor about the size of a golf ball that the physician treating Pierre reportedly said was one of the largest he'd ever seen. Pierre's family, it turned out, was also kept in the dark.
"At no time was Mr. Pierre's counsel notified nor was his immediate family all of whom reside in Broward County. Three of his brothers and sisters have already been approved by the FDC for visitation purposes," Seitles wrote in a motion asking the federal judge handling the case to order BOP to allow one family member to visit Pierre for up to two hours a day. The government did not initially oppose the motion, apparently seeing no reason that a man recovering from brain surgery should be denied the right to see family.
The judge granted the request, ordering BOP to allow visitation. Pierre's sister Marie Blot went to visit him on Monday, court order in hand. But the guard wouldn't let her see him, and instead allegedly threatened the sister with arrest.
"She explained to the guard that the district court approved family visitation of one person per day for two hours. The guard told her that she would have her arrested if she persisted," Seitles told the court in a filing Tuesday. "Ms. Blot requested the that guard review the order. The guard reviewed the order and then stated that the 'Judges don’t tell us what to do.'" Blot was escorted out of the hospital.
***
With President Barack Obama visiting a federal prison in El Reno, Oklahoma, earlier this month and asking the Justice Department to study BOP's use of solitary confinement, those familiar with the bureau's practices say there's plenty the federal government could be doing to improve the conditions of those who are behind bars.
“Obama sent a strong message about prison reform and what can no longer be tolerated in a civilized society. Being chained to a hospital bed for 30 days after undergoing brain surgery and then being told you can’t have your loved ones visit is not civilized," Seitles said in an email. “The BOP knows very well the difference between a first-time offender, low-security risk detainee and a violent habitual offender. The only security risk Mr. Pierre poses is being another casualty of the BOP’s archaic policies.”

 Fight the good fight Marc!

Meantime, there is a new call to fix the bail problem in the U.S.  It's absurd how many people are denied bail.  From the Washington Post:

Studies indicate that courts are more likely to view African Americans and Latinos as flight risks or public threats; these groups more often receive higher bail or mandatory pretrial detention. And because African Americans, Latinos and persons with disabilities are disproportionately poor, setting higher bail for them increases the likelihood that they will be unable to pay for release.
One study found that in 2008, 39 percent of all pretrial detainees in New York City were in custody because they could not afford bail. A 2013 study found that 50 percent of the city’s pretrial detainees could not afford bail of less than $2,500. In county courts across the nation, an average of 30 percent of pretrial detainees who are given bail less than $5,000 cannot afford the payment.
The inability to pay bail, however, does not explain prolonged detention. Trial delays primarily occur due to overly burdened criminal courts, prosecutors and defense lawyers. Clogged criminal-court dockets, in turn, are a direct result of the dramatic rise in the use of incarceration as method of social control in the United States — the outgrowth of the “tough on crime” mindset that pervaded the U.S. criminal justice system from the mid-1970s through the 1990s.
The U.S. prison population increased by 400 percent between 1973 and 2013; we incarcerate more people than any other nation. And while the United States is home to just  five percent of the world population, our prisons house 25 percent of the world’s incarcerated population. The explosion of incarceration has substantially burdened the criminal process and slowed the pace of prosecution in many jurisdictions.
Prolonged pretrial tradition is inconsistent with U.S. legal norms because it infringes one of the most fundamental rights secured by the Constitution: the right to liberty. The government can detain defendants before trial, but pretrial detention must not constitute punishment, which can only occur upon conviction. When unreasonable and excessive delay occurs between arrest and trial, the distinction between pretrial detention and punishment is merely a facade.

In local news, Dr. Melgen (who is now out on bond... finally!) has filed a motion to suppress, which is covered by the Herald:

When federal agents raided the South Florida clinic of a wealthy eye doctor in 2013, their warrant only allowed them to gather evidence about his prolific Medicare billing for a fraud investigation.
But according to Dr. Salomon Melgen's defense attorneys, FBI agents illegally collected their client's handwritten notebook of personal contacts for a parallel corruption probe targeting the physician's close friend, U.S. Sen. Bob Menendez, the influential New Jersey Democrat.
The attorneys claim that the day after the January raid in West Palm Beach, an FBI agent went to a federal magistrate judge to obtain a follow-up warrant to justify the seizure of Melgen's notebook, which they say was mischaracterized as a “ledger of prostitution activities” in an affidavit.
Now, Melgen and Menendez — both charged in an influence-peddling corruption case in New Jersey — are aggressively fighting to dismiss their indictment, saying FBI and Justice Department prosecutors conducted an illegal search and misled a federal grand jury involving other evidence.
“Instead of complying with the [initial] warrant, the agents launched a broad and intrusive room-to-room search for materials related to Dr. Melgen’s friendship with Senator Menendez and the outlandish and untrue allegations of sexual misconduct made by the anonymous ‘Peter Williams,’’’ according to court papers filed this week by the physician’s lawyers, Matthew Menchel and Kirk Ogrosky.