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

August 2014 Archives

2nd Cir: No Qualified Immunity for SWAT Team Raid

Recent in events in Ferguson, Missouri have prompted questions about the militarization of police: why do SWAT teams need to be armed like they're going into Kandahar? Last week, the Second Circuit Court of Appeals criticized this militant response in an appeal over police conduct during a drug raid -- although "drug raid" is a loose term.

In order to serve a search warrant on Ronald Terebesi, who was alleged to possess a small quantity of crack cocaine, "police planned to smash Terebesi's windows, detonate at least three stun grenades (or "flash bangs") inside the home, break down the front door with a battering ram, and storm the house with weapons drawn."

Conn. Bar Association Won't Back Gun Law Defense After All

Ah, a bar association which doesn't take divisive stances that are likely to irk its members.

Connecticut lawmakers passed some pretty strict gun laws after the Newton tragedy. In Shew v. Malloy, a federal district court upheld the constitutionality of these new gun laws, and an appeal is working its way through the Second Circuit.

Connecticut's bar association initially voted to join the defense of the laws, but after a wee bit of backlash and a referendum, that's not happening any longer.

'Occupy Wall Street' Lawsuit Against NYC Can March On, 2nd Cir. Rules

A class action lawsuit against the City of New York can proceed, the Second Circuit ruled today. The lawsuit began when hundreds of Occupy Wall Street protesters marched across the Brooklyn Bridge on October 1, 2011. Halfway across the bridge, they were trapped and arrested by police.

Police claimed the protesters were arrested for impeding traffic, but the protesters claimed that they were lured onto the bridge by police, who they say escorted them onto the bridge, only to arrest them once they were there. Though the police were actually announcing over a megaphone that protesters who entered the roadway would be arrested, the plaintiffs in this claim that they couldn't hear them.

Direct Oral Suction During Circumcision Needs More Scrutiny: 2nd Cir.

Question: How do you know when you've been blogging way too long?

Answer: When the topic of rabbis providing orally assisted circumcisions crosses your desk twice -- first as a deceased baby case, then as a Second Circuit case addressing a New York City regulation passed in the wake of the tragedy.

The practice at issue is called metzizah b'peh, which involves removing blood from the circumcision wound with the rabbi's mouth. The ritual continues to be widespread in Orthodox communities in New York City, despite previous cases of babies contracting or dying from herpes after the ritual, including three cases tied to a single rabbi who has since been banned from performing the procedure.

Questioning of Defendant by CPS Worker Violated Miranda: 2nd Cir.

It's a rare occasion indeed when a federal court upholds a state prisoner's federal habeas corpus claim. The procedural bar to getting relief -- showing that a state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" -- is quite high.

But Shawn Jackson made it over the hurdle.

In 2000, police arrested Jackson after they received a 911 call from three women at his home -- including his 14-year-old daughter -- alleging that he raped them several times that night. Once arrested, Jackson invoked Miranda and clammed up. Then, Kathy Bonisteel, a Child Protective Services worker, came by to investigate the child abuse charges. Instead of staying silent again, he willingly talked to her, essentially giving the prosecution everything it could have hoped for during the interview.

In June, we blogged about the Second Circuit's opinion reversing Judge Rakoff's denial of a consent decree between the Securities and Exchange Commission ("SEC") and Citigroup.

Last week, on remand, Judge Rakoff reluctantly approved the consent decree stating, "That Court [the Second Circuit] has not fixed the menu, leaving this Court with nothing but sour grapes." Ouch.

Let's take a look at the settlement, the opinion, and how we got here.

In 2008, before the Great Recession was in full swing, Bank of America bought Countrywide Financial, in efforts to solidify its position in commercial banking, according to NPR. Thinking it got a great deal, instead what Bank of America bought was lots of liability.

As we continue to witness the fallout of the Great Recession, and bailout of banks deemed "too big to fail," Bank of America is dealing with punches from all sides, when not coincidentally, in the space of a week it's nearing settlement terms with the Department of Justice, and was ordered by a federal judge to pay $1.27 billion in damages.

Police Unions Can't Block Stop and Frisk Settlement, Plan to Appeal

"Stop and frisk" just got one step closer to becoming a sad, unconstitutional footnote in the annals of New York City, though it seems my fellow blogger's predictions proved prescient:

"Well, we're of the opinion that no matter what decision the district court comes to regarding whether law enforcement associations can intervene, someone's going to have a problem with it. If the district court does not allow them to intervene, they [the police unions] will appeal.

Yep. U.S. District Court Judge Analisa Torres denied the police unions' attempt to intervene and block the "stop and frisk" settlement last week. As predicted, Patrick Lynch, president of the city Patrolmen's Benevolent Association, one of five unions that sought to intervene, said the union would ask the Second Circuit to overturn Torres' ruling, reports Reuters.