U.S. Second Circuit: June 2012 Archives
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June 2012 Archives

NYC Challenges Judge Garaufis: Judicial Bias in the FDNY Lawsuit?

Less than 10 percent of New York City firefighters are black or Hispanic, but more than half of the city's 8 million residents identify with a racial minority group, reports CNBC. Those numbers may have weighed on U.S. District Judge Nicholas Garaufis, when he dubbed FDNY "a stubborn bastion of white male privilege" and wrote that the rampant discrimination in the department was a "shameful blight on the records of the six mayors of this city who failed to take responsibility for doing what was necessary to end it."

According to city attorney Deborah Brenner, those comments belie bias. Tuesday, Brenner asked the Second Circuit Court of Appeals to vacate Garaufis' order in an FDNY lawsuit and appoint a new judge to the case.

Shinnecock Tribe to Gamble on State Court Casino Approval

Could Southampton get a casino after all?

The Second Circuit Court of Appeals ruled on Monday that the battle over a new Native American casino should be handled in state court, not federal court, reports The Wall Street Journal.

SCOTUS Vacates Second Circuit in FCC v. Fox

For the second time this week, the Supreme Court has overruled the Second Circuit Court of Appeals. First, it was on the issue of overtime pay for pharmaceutical sales reps. Now, it's on a test of the Federal Communications Commission (FCC) indecency policy.

Thursday, the Supreme Court tossed multiple penalties against ABC and Fox, which were accused of violating FCC indecency rules by broadcasting profanity and nudity. The Court, in an opinion written by Justice Anthony Kennedy, held that, because the FCC failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the indecency policy as applied to these broadcasts was vague.

SCOTUS Overrules 2nd Cir on Pharmaceutical Sales Rep Overtime Pay

Monday, the Supreme Court overturned the Second Circuit Court of Appeals on the issue of overtime pay for pharmaceutical sales representatives (PSRs).

In what has become an increasingly rare occurrence in cases involving circuit splits, the Court sided with the Ninth Circuit, finding that a PSR is an “outside salesperson,” exempt from the Fair Labor Standards Act’s overtime pay requirements.

Conn. Cop Loses Malicious Prosecution Appeal

The Second Circuit Court of Appeals ruled this week that absolute immunity bars a former Connecticut cop from suing a former state prosecutor for allegedly withholding exculpatory evidence from a grand jury, reports MyFoxNY.com.

Former Waterbury State's Attorney John Connelly prosecuted former cop Robert Lawlor for the 2005 shooting death of Jashon Bryant. Lawlor claimed he opened fire when he saw Bryant reaching for a gun, but no weapon was found on Bryant. A Hartford jury acquitted Lawlor of manslaughter and assault charges in 2009, according to the Journal Inquirer.

Nobody Puts the Second Circuit in the Debarment Appeals Corner

The Second Circuit Court of Appeals highlighted the occasional absurdity of the federal appellate process this week when it dismissed an administrative appeal because the appeal wasn't originally filed with the appellate court.

The short version of the ruling: If you get hit with Securities and Exchange Commission (SEC) debarment, appeal directly to a federal appellate court.

The long version, of course, is more interesting because it covers allegations of attorney misconduct.

Ongoing Conspiracy Can Result in Sentence Enhancement

Here’s a defense theory you never want to assert: Your honor, the district court erred in applying an enhancement to my client’s sentence for committing a crime while released because he only conspired to commit a crime.

We hope you avoid this argument for two reasons:

  1. It's embarrassing when your client commits a crime while out on bail.
  2. The Second Circuit Court of Appeals recently ruled that conspiracy qualifies for a sentence enhancement.

You're Up, Second Circuit: NYC Judge Strikes DOMA

Everybody who’s anybody is taking a swipe at the Defense of Marriage Act (DOMA) these days.

It’s like marriage equality is the new black, or DOMA is the new Affordable Care Act.

Now, a federal judge in New York City has given the Second Circuit Court of Appeals an opportunity to get in on the action. Wednesday, District Judge Barbara Jones ruled that DOMA is unconstitutional because it improperly interferes with states’ rights to regulate marriage, reports Reuters.

SCOTUS to Consider Detention Incident to Search Warrant

The Supreme Court announced Monday morning that it will review a Second Circuit Court of Appeals decision regarding whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.

The Second Circuit previously ruled that the detention incident to the search warrant was legal.

Court Rules Against Gun Owner in Second Amendment Test Case

The Second Circuit Court of Appeals sided with the government on Friday in a case that questioned that constitutionality of federal and state laws restricting the purchase and transportation of handguns across state lines.

Federal law prohibits anyone who is not a licensed importer, manufacturer, dealer, or collector to transport or receive in his home state a gun purchased or obtained outside of the state. New York resident Angel Decastro intentionally violated that law when he bought a pistol in Florida in 2005 and took it back to New York, reports Courthouse News.