The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Its kinda odd to have the defendant in HawaiivTrump acting as our co-counsel.We don't need the help but will take it! pic.twitter.com/8ehqkLkOY2
— Neal Katyal (@neal_katyal) June 5, 2017
Imagine an incoming president of the United States announcing that he or she would take advice on criminal justice matters exclusively from a Federal Defender’s office. Moreover, the new chief executive intends to put the defenders in charge of federal prisons, forensic science, and the clemency process. After all, the president might argue, the defenders understand federal criminal law from the ground up, have a rich understanding of the social conditions that lead to criminal behavior, and are the federal attorneys most responsible for ensuring individual Constitutional protections.We need you, Judges, to check DOJ. More than ever.
People would be outraged. Critics would complain that the defenders represent only one part of the justice system, and are inherently biased because their work in the courts is always on behalf of the accused.
Yet, somehow, the mirror image of that situation is our reality and goes largely unchallenged.
Despite an obvious conflict of interest, the Department of Justice evaluates clemency petitions, runs federal prisons, decides what forensic evidence to introduce in federal cases, and advises the president on criminal justice reform. And make no mistake — prosecutors dominate the agency, with the 93 United States Attorneys playing the leading role in setting policies across a range of issues and career prosecutors running most of the divisions.
Although many things about this case are troubling, perhaps most worrisome is that Mr. Hernandez might never have received this sentence if he had been sentenced in another part of the country. The Sentencing Commission also reported to Congress that the practice of "stacking" § 924(c) charges happens in very few districts. The Commission's data showed "no evidence that those offenses occur more frequently in those districts than in others." Id at 361. The Sentencing Commission thus concluded that "this geographic concentration is attributable to inconsistences in the charging of multiple violations of § 924(c)." Id. at 361-62. As it happens, the Southern District of Florida, where Mr. Hernandez was sentenced, is one of the districts recognized as exceptionally prolific in charging § 924(c) crimes. In fiscal year 2010, at least one in thirty-five of our entire nation's § 924(c) sentences came from the Southern District of Florida. Id at 276. The Southern District of Florida was one of only twelve districts in the country that reported having over 50 of these cases that year. Id. For the same period, 38 districts reported having ten or fewer. Id.Another local practice that may come under fire in the near future is the shackling of all defendants in magistrate court. The 9th Circuit just found the practice unconstitutional, which is in direct conflict with the 11th Circuit. The Supreme Court may get the issue, but it's hard to disagree with the 9th's conclusion:
We must treat people with respect and dignity even though they are suspected of a crime. * * * The Constitution enshrines a fundamental right to be free of unwarranted restraints. Thus, we hold that if the government seeks to shackle a defendant, it must first justify the infringement with specific security needs as to that particular defendant. Courts must decide whether the stated need for security outweighs the infringement on a defendant’s right. This decision cannot be deferred to security providers or presumptively answered by routine policies. All of these requirements apply regardless of a jury’s presence or whether it’s a pretrial, trial or sentencing proceeding. Criminal defendants, like any other party appearing in court, are entitled to enter the courtroom with their heads held high. The policy that defendants challenged here isn’t presently in effect. Thus, although we hold that policy to be unconstitutional, we withhold the issuance of a formal writ of mandamus at this time.
Kevin Newsom, President Trump’s first nominee to the Eleventh Circuit, is a seasoned appellate litigator, seemingly universally respected, with extensive experience in diverse areas of law. A longtime member of the Federalist Society, his confirmation would cement the somewhat evenly balanced Eleventh Circuit back onto a firm conservative footing.
In history and literature, the name “Draco” has been associated with some notorious characters. Draco of ancient Greece is perhaps best known for the harsh legal code he composed, which inspired the word “draconian.” Antonios Loizides, Draco’s Law Code, ANCIENT HISTORY ENCYCLOPEDIA http://www.ancient.eu/ Dracos_Law_Code/ (last visited May 12, 2017). Draco Lucius Malfoy, of course, is Harry Potter’s perpetually maleficent rival in the Harry Potter literary series.*
And to the list of infamous Dracos, add Defendant-Appellant Draco. Draco is a police canine who was involved in the apprehension of Plaintiff Randall Kevin Jones. Unfortunately, Draco inflicted some serious damage on Jones when Draco refused to release his bite. Jones sued Draco, among others, for negligence. Georgia law by its terms, however, does not provide for negligence actions directly against dogs. We therefore hold as much today and reverse the district court’s denial of Defendant-Appellants’ motion to dismiss Draco.
But while Georgia law does not allow for a negligence suit against a dog, it does permit negligence claims against a state officer who is not entitled to official immunity. Title 42, United States Code, Section 1983 likewise authorizes an action against a police officer who employs a dog in an exercise of excessive force. And Jones also sued the officers responsible for Draco’s encounter with Jones. In response, Defendant-Appellant Officers invoked official and qualified immunity and moved to dismiss. The district court summarily denied Defendant-Appellant Officers’ motion. Today we must reverse that denial and dismiss the claims. Jones has failed to allege facts establishing that the officer acted with malice, so the officers are entitled to official immunity. Nor does binding precedent allow for the conclusion that Defendant Officers’ employment of Draco in the circumstances of this case violated Jones’s clearly established rights, so the officers have qualified immunity.
*See J.K. Rowling, Harry Potter and the Sorcerer’s Stone (1997); J.K. Rowling, Harry Potter and the Chamber of Secrets (1998); J.K. Rowling, Harry Potter and the Prisoner of Azkaban (1999); J.K. Rowling, Harry Potter and the Goblet of Fire (2000); J.K. Rowling, Harry Potter and the Order of the Phoenix (2003); J.K. Rowling, Harry Potter and the Half-Blood Prince (2005); J.K. Rowling, Harry Potter and the Deathly Hallows (2007).
