U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

May 2013 Archives

FDCPA No Written Requirement for Debt Validity Dispute

Quick primer on disputing a debt under the Fair Debt Collection Practices Act:

Debt collector sends a notice containing the familiar admonition that "this is an attempt to collect a debt. Any information collected will be used for that purpose." It also tells the debtor that if they believe the debt to be invalid, they must dispute the debt within thirty days. If they do so, the debt collector is required to "verify" the debt before continuing collection efforts.

There's one small ambiguity in the statute, however. Note the difference between the following two provisions, § 1692g(a)(3) and (4):

Felon Gets 15 Years for Inoperable Gun; Still Can't Catch a Break

The NYPD was investigating an unrelated matter in Brooklyn when they happened upon John Rivera, a.k.a. Hubert Coleman (“Rivera”). Not wanting to interact with the officers, Rivera took off running, leading the officers to chase him down, search him, and find what would graciously be described as a gun (it was an inoperable pistol frame, sans serial number or cylinder … basically, a lump of metal).

The operability of the pistol didn’t seem to matter, however, as the three-time felon pled guilty to a firearm possession charge, with an Armed Career Criminals Act (ACCA) sentencing enhancement. His final sentence was 15 years (or 180 months). As part of the plea, he agreed not to appeal the sentence if it was 235 months or less.

He apparently lied.

2 for 2: 2nd Amendment for Felons; Catch-22 Fire Insurance Question

After a few days of a barren bench issuing no decisions of note, today we were graced with a handful. We're so excited by the ending of the drought, that today, we're giving you a double dose of Second Circuit fun: felons with firearms and insurance company windfalls.

Second Circuit Talks Second Amendment - For Felons

A felon is caught with both body armor and firearms. This is obviously a problem. Yet, Gary Bogle argued, with a straight face, that the Supreme Court's recent jurisprudence in the Second Amendment arena, namely District of Columbia v. Heller and McDonald v. City of Chicago developed a more expansive interpretation of the Amendment and by extension, gave the right to firearm possession back to felons.

Remorse Means Never Having to Say Sorry for Drug Dealing Again

You’re all familiar with the “acceptance of responsibility” sentence reduction. Someone cops to the crime and shows remorse, then they get a few levels knocked off their guidelines. Simple enough, right?

Robert Chu pleaded guilty to a drug conspiracy charge in a timely fashion. Ordinarily, we’d call that “acceptance of responsibility.” Except, throughout his detention, including the period after his plea, but before sentencing, he made “persistent” attempts to sneak drugs into prison. Oddly enough, each attempt involved hiding drugs in potato chip bags.

Court Certifies Question on Smoker Medical Monitoring Claims

If you spent 20 years smoking a pack of cigarettes each day, you would probably want someone to keep an eye on your lungs.

But should tobacco companies be forced to foot the bill for that type of medical monitoring when the smoker has yet to show signs of cancer? The Second Circuit Court of Appeals isn't sure, so it's asking the New York Court of Appeals to weigh in on the matter by responding to two certified questions.