The Meaning of Restrained

By John R. Byrne 

It happens enough in real life that we've all seen it playacted on T.V. or in the movies. Man (or woman) walks into a convenience store, pulls a gun on the cashier, demands money, gets money, and walks out. Question: in such a situation, has the cashier been "physically restrained"? Because if the answer is "yes," under the federal guidelines the man (or woman) in this hypothetical should receive a two-level enhancement under USSG § 2B3.1(b)(4)(B). 

Under current Eleventh Circuit precedent, the answer is "yes,” the idea being that the threat with a weapon is sufficient to freeze the person in place. That’s something that Judges Rosenbaum, Newsome, and Abudu think should be revisited by the Eleventh Circuit as a whole. That's what they discussed yesterday in US v. Delon, which we excerpt below. Judge Newsome even turned again to ChatGPT and other AI-powered language models for their thoughts on the phrase "physically restrained." Interesting take. 

Opening weekend for the Dolphins. Let’s go Fins!

Deleon by John Byrne on Scribd

Fort Lauderdale Policing on Trial

By John R. Byrne

The City of Fort Lauderdale is going to stand trial in a high-profile police brutality case. The blog covered this case, which has generated nationwide media coverage, back at the motion to dismiss stage. Now, after Judge Ruiz denied motions for summary judgment filed by Fort Lauderdale, the City will be defending its policies, procedures, and officer conduct in front of a jury. It wasn't a total victory for the Plaintiff, LaToya Ratlieff, as the individual officers were able to prevail on qualified immunity grounds. The Sun Sentinel covers the order, which is excerpted below, here. Wonder if the City will try to settle before trial.

22-61029 - Ratlieff v. FTL Et Al. - Order on Cross Motions for Summary Judgment by John Byrne on Scribd

KBJ has a new book out

It's called "Lovely One" and Justice Jackson is releasing it today.

The Miami native is making the rounds, including this interview on CBS.

She will be speaking at a sold out event at the Arsht this weekend.

From the CBS interview:

The justice who was nominated by President Biden has said she cannot "label" her judicial approach as liberal or conservative. Since being named to the court in 2022 as the 116th associate justice in U.S. history, she has joined the majority in 78% of cases. She told O'Donnell she's working to become a better consensus builder — a skill for which her mentor, retired Justice Stephen Breyer, was known.

"No one can match Justice Breyer in that skill…" Jackson said. "But I think that's aspirational. I would like to be better at forging consensus."

Jackson quickly found her voice on the Bench, issuing several solo dissents in her first term. The court's newest member doesn't shy away from sparring with some of the more senior justices.

She notably tangled with Justice Clarence Thomas over affirmative action last year, when the court struck down race-conscious admissions policies at U.S. colleges in a pair of cases involving the University of North Carolina at Chapel Hill and Harvard College. (Jackson recused herself from the case involving Harvard, her alma mater.)

In a concurring opinion, Thomas wrote that Jackson believes "we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of Black Americans still determining our lives today."

Jackson told O'Donnell she does not agree with Thomas' characterization of her views. Jackson said her dissent pointed "out that we still exist in a society in which the gaps that were initially created as a result of slavery, as a result of Jim Crow, exist and that affirmative action, for example, was really a response. It was remedial to try to do something about the gaps that exist in wealth, in education, in health."

Rest in Peace, Bob Rust

By John R. Byrne

Robert “Bob” Rust passed away over the weekend. He served as US Attorney in our district from 1969 to the mid 1970s (he and Willy Ferrer our are longest serving US Attorneys). Rust had a significant impact on the office, hiring lawyers like Pat Sullivan, who went on to prosecute Noriega in the early '90s.

 

Before becoming US Attorney, Bob was an AUSA. In that role he helped foil the assassination of then President-elect John F. Kennedy on December 15, 1960 in Palm Beach. The story is wild and worth a read. For his efforts, he received the Award of Merit from the Chief of the U.S. Secret Service. 

 

Rest in peace, Bob. You will be missed. 

Substantive Due Process Fight

By John R. Byrne

A little heavy in terms of content for a summer Friday but still notable. In Eknes-Tucker v. Alabama, the Eleventh Circuit declined to rehear en banc the challenge to an Alabama law that bars providing puberty blockers or cross-sex hormones to minors as treatment for gender dysphoria. The order is 170-plus pages. It consists of an opinion from Chief Judge Pryor critiquing the doctrine of substantive due process (noting it "does violence to the text of the Constitution"), an opinion from Judge Lagoa, who issued the panel opinion, recapping specifics of the case as well as recent factual developments, and three dissents (Judge Jordan, Judge Rosenbaum, and Judge Wilson). 

Reading it will take you back to your Con law days.

College football begins in earnest tomorrow. Canes open at the Gators. There’s going to be a lot of trash talking on Monday from one of those fan bases.

Denial of Rehearing by John Byrne on Scribd

David Kendall for President Bill Clinton

FOR THE DEFENSE, SEASON 6, EPISODE 7: David Kendall for President Bill Clinton We have another incredible guest this week -- David Kendall of Williams & Connolly.  David is a friend and one of the best lawyers I know.  We take a deep dive into his defense of President Clinton during the impeachment proceedings back in the late 90s. One of the things we discuss with David on this episode is his cross of independent counsel, Ken Starr. You can read it here. As always, you can catch this and other episodes on the web or on every podcast platform, including Apple and Spotify.  Our thoughts remain with the loved ones of Chris Morvillo, who joined me on the last episode of the podcast.  I said a few words about his tragic loss here. My heart goes out to his daughters and family, his friends, and his colleagues. It's hard to get my head around what happened.  If you'd like to hear more about what an amazing person he was, the video of his interview is here.   One of the great things about this podcast is getting to know truly incredible people.  Chris was one of those.  I hope he, his wife, and the others lost rest in peace.     If you have a friend that would like to receive these updates, please have them sign up here. Thank you! --David   Hosted by David Oscar Markus and produced by rakontur

Life Tenure

John R. Byrne

Federal judges have life tenure. But how long should they serve? In 2023, the average retirement age in the United States was 62 years old. But, according to this recent article from NBC News, the average age of a federal judge is 69. And though federal judges can take senior status starting at age 65, many who are eligible choose not to do so. 

Is there a way to further incentive judges to take senior status when eligible? And is that even necessary? As the article discusses, the average age of those serving in other branches of government has also increased. And in cases where there are concerns about the competency of a federal judge, colleagues have stepped forward to gently (and sometimes not so gently) pressure them to step down. 

What do you think?

Burger King v. Burger King

By John R. Byrne

Know Burger King's connection to Miami? Though the company was originally founded in Jacksonville, it operated there as "Insta-Burger King." In 1954, two Miami-based franchisees bought the company, rebranded it "Burger King," and opened the first location at 3090 Northwest 36th Street in Miami. The rest is history, with Burger King becoming one of the titans of the fast food industry. 

But the company had a recent setback in India when it came up against a formidable opponent: Burger King. An enterprising couple opened an eatery in India in the late '80s and, in 1991, rebranded it "Burger King." When O.G. Burger King caught wind of it, they sued the couple for trademark infringement. An Indian Court just ruled for the couple, noting that they were using the Burger King name before Burger King entered the Indian market. Also, the India Burger King used different imaging, including the picture of a crown between the words "Burger" and "King" (why didn't O.G. Burger King think of that?!).

Maybe McDowell's should consider opening an India location?