Monday, February 20, 2017

Judge William Zloch takes senior status

Thanks to a tipster, I see that Judge William Zloch took senior status on January 31, 2017.  That means that our District now has 3 open seats.  Judge Zloch was the Chief Judge of our District from 2000-2007.  Here's his wiki entry:
William J. "Bill" Zloch (born 1944 in Fort Lauderdale, Florida) is a Senior United States District Judge, as well as a former American football quarterback and wide receiver for the University of Notre Dame.
Following the departure of Heisman Trophy winner John Huarte in 1965, Notre Dame football coach Ara Parseghian was faced with a wide-open competition for the quarterback position. He opted to move senior Bill Zloch from wide receiver to quarterback for the 1965 season.[1] Directing a team that was heavily run-oriented, Zloch finished the season completing 36 of 88 passes for 558 yards and three touchdowns.[2] The team finished 7-2-1 and ranked 8th nationally.
After graduation, Zloch spent three years in the United States Navy, achieving the rank of lieutenant, then returned to Notre Dame Law School, completing a Juris Doctor in 1974. He returned to Fort Lauderdale to begin a private law practice.[3]
On October 9, 1985, President Ronald Reagan nominated Zloch to a newly created seat on the United States District Court for the Southern District of Florida. He was confirmed by the United States Senate on November 1, 1985, and received his commission on November 4, 1985. On July 1, 2000, he began a seven-year term as Chief Judge of the district, ending on June 30, 2007. He was succeeded as Chief Judge by Judge Federico A. Moreno.[4] He assumed senior status on January 31, 2017.
Judge Zloch on August 21, 2009 sentenced UBS whistleblower Bradley Birkenfeld to 40 months in prison with 3 years probation and a $30,000 fine, a term that was harsher than the prosecutors wanted. "Assistant U.S. attorney Jeffrey A. Neiman recommended that Birkenfeld get 30 months in prison for his conviction on one count of conspiracy to defraud the government -- down from the 60-month maximum sentence he is exposed to -- because of his extensive cooperation," the Miami Herald reported.[5][6]

Thursday, February 16, 2017

En banc 11th Circuit rules in "Docs v. Glocks" case

The en banc 11th Circuit opinion in the "Docs v. Glocks" case is here.  There are two majority opinions for the en banc Court, one by Judge Jordan and one by Judge Marcus. Judge Jordan’s opinion is joined by Chief Judge Ed Carnes and Judges Hull, Marcus, William Pryor, Martin, Rosenbaum, Julie Carnes, and Jill Pryor. Judge Marcus’ opinion is joined by Judges Hull, Wilson, Martin, Jordan, Rosenbaum, and Jill Pryor.

Judge Jordan's opinion starts this way:
Despite its majestic brevity—or maybe because of it—the freedom of speech clause of the First Amendment sometimes proves difficult to apply. See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment 5 (2015) (“Reading the First Amendment isn’t easy.”); Saxe v. State College Area Sch. Dist., 240 F.3d 200, 218 (3d Cir. 2001) (Rendell, J., concurring) (“[T]here are no easy ways in the complex area of First Amendment jurisprudence.”). Yet certain First Amendment principles can be applied with reasonable consistency, and one of them is that, subject to limited exceptions, “[c]ontent-based regulations [of speech] are presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
This particular principle looms large in this case, which concerns certain provisions of Florida’s Firearms Owners’ Privacy Act, Chapter 2011–112, Laws of Florida (codified at Fla. Stat. §§ 790.338, 456.072, 395.1055, & 381.026). And that is because some of FOPA’s provisions regulate speech on the basis of content, restricting (and providing disciplinary sanctions for) speech by doctors and medical professionals on the subject of firearm ownership.
Shortly after FOPA was enacted in 2011, a number of doctors and medical organizations filed suit in federal court against various Florida officials, challenging some of the Act’s provisions as unconstitutional. Ruling on cross-motions for summary judgment, the district court held that FOPA’s record-keeping, inquiry, anti-discrimination, and anti-harassment provisions violated the First and Fourteenth Amendments, and permanently enjoined their enforcement. See Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012) (Wollschlaeger I). The state officials appealed, and a divided panel of this court issued three opinions—each using a different First Amendment standard of review—upholding the challenged provisions of FOPA. See Wollschlaeger v. Governor of Fla., 760 F.3d 1195 (11th Cir. 2014) (Wollschlaeger II); Wollschlaeger v. Governor of Fla., 797 F.3d 859 (11th Cir. 2015) (Wollschlaeger III); Wollschlaeger v. Governor of Fla., 814 F.3d 1159 (11th Cir. 2015) (Wollschlaeger IV). We voted to rehear the case en banc and heard oral argument in June of 2016.
Exercising plenary review, see ACLU of Fla., Inc. v. Miami-Dade County Sch. Bd., 557 F.3d 1177, 1206 (11th Cir. 2009), and applying heightened scrutiny as articulated in Sorrell v. IMS Health, Inc., 564 U.S. 552, 563–67, 571–72 (2011), we agree with the district court that FOPA’s content-based restrictions—the record-keeping, inquiry, and anti-harassment provisions—violate the First Amendment as it applies to the states. See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech[.]”); Stromberg v. California, 283 U.S. 359, 368 (1931) (“[T]he conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech.”). And because these three provisions do not survive heightened scrutiny under Sorrell, we need not address whether strict scrutiny should apply to them. We also conclude, this time contrary to the district court, that FOPA’s anti-discrimination provision—as construed to apply to certain conduct by doctors and medical professionals—is not unconstitutional. Finally, we concur with the district court’s assessment that the unconstitutional provisions of FOPA can be severed from the rest of the Act.
 And Judge Marcus starts this way:

The Court has correctly determined that the record-keeping, inquiry, and anti-harassment provisions of Florida’s Firearm Owners’ Privacy Act (FOPA), Fla. Stat. § 790.338(1)–(2), (6), plainly target core First Amendment speech. Because the State has failed to demonstrate that these provisions are narrowly drawn to directly and materially advance a substantial government interest, they cannot withstand heightened scrutiny. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995).

Judge Tjoflat dissented.

Alex Acosta to be named Secretary of Labor

Congrats to former U.S. Attorney and current Dean of FIU law school, Alex Acosta, for being named as the nominee for Secretary of Labor.

Alex is a wonderful choice.  He's smart and ethical.  More importantly, he's a really good guy.


https://law.fiu.edu/wp-content/uploads/sites/21/2014/09/alexacosta-web-small1-e1410460904176.jpg

Wednesday, February 15, 2017

Breaking news-- U.S. Attorney Wifredo Ferrer resigns (UPDATED WITH QUOTE FROM FERRER)

Multiple sources have emailed me that Willy Ferrer has resigned today as U.S. Attorney for the Southern District of a Florida. Ben Greenberg is acting. More to follow.

UPDATE -- I have it confirmed that Ferrer has stepped down.

UPDATE 2 (1:15pm) -- Willy was kind enough to speak with me and confirm the news. He is a very good guy and we should all wish him the best. His resignation is effective on March 3, and Ben Greenberg already has been approved to be the acting U.S. Attorney starting March 4.  Willy announced the news at an office-wide meeting today after serving our community for 7 years as U.S. Attorney.  He previously worked as an AUSA for 6 years.  He had this to say:

There has been no greater honor than to serve and protect the same community that opened its arms to my parents when they immigrated to this country.  For almost seven years, I have been blessed to work alongside remarkable men and women in the U.S. Attorney’s Office, community leaders, and our federal, state and local law enforcement partners who strive tirelessly to combat crime and promote a safer, stronger and more united district.  I am incredibly proud of all that we have been able to accomplish together, in and out of the courtroom, including building meaningful bonds of trust with the diverse community we serve.
 I really like the sentiment, especially the opening line about his parents coming to this country, which welcomed them with open arms.  

Tuesday, February 14, 2017

This is a real press release from the SDFLA U.S. Attorney's Office: "NEWS RELEASE: TWO MIAMI-DADE WOMEN CHARGED IN CONNECTION WITH THEIR OPERATION OF A SPA PERFORMING ILLICIT SILICONE INJECTIONS"

Oh boy...  From the release:


        Maribel Jimenez, with assistance from Magaly Del Rosario, a manager of Bella Beauty, administered deep tissue buttock injections of substantial quantities of silicone, an adulterated medical device when used and intended to be used in this manner, to hundreds of Bella Beauty clients.

        The silicone which was unlawfully injected into Bella Beauty clients was clandestinely smuggled into the United States by Jimenez and co-conspirators by means of approximately 170 separate DHL air carrier shipments.  To avoid the scrutiny of Customs and Border Protection, upon importation into the United States, each bottle contained false labelling stating in Spanish that the contents consisted of “Depilatory Wax” and alleged instructions on how to apply this purported rosin-based substance in a manner consistent with hair removal.

After the injections, Jimenez had been informed by a number of Bella Beauty Spa clients that they were experiencing adverse health related symptoms.  Jimenez and Del Rosario failed to advise the clients that silicone had been injected into their bodies. The defendants also intentionally concealed the potential health consequences arising from the injection of silicone into their clients’ bodies.
The email address that the government set up might be my favorite part:

Individual clients of Bella Beauty Spa who have undergone buttocks injection procedures, regardless of how far in the past, are urged to contact bellabeautyinjections@fda.hhs.gov in order to receive additional information, address individual concerns, and to receive information concerning their status and rights as potential victims.