The Law Office of Tom Norrid
SAMARITAN PROJECTS LLC
P.O. Box 9244
Springfield, MO 65801-9244
417-236-1179
The SAMARITAN-PROJECTS prepares post-conviction and compassionate release motions along with appeals under the direction of Attorney Tom Norrid. The Samaritan-Projects’ newsletter reports every winning published district court and court of appeals case for the week in review. Rusty – 417 901 3000 – Eddie 417 818 1938.
APPEAL/CR.RIS/REVERSAL. The Fourth Circuit reversed the grant of a CR.RIS motion in United States v. Abdi Osman, 2024 U.S. App. LEXIS 19328 (4th Cir. Aug. 2, 2024). Abdi Razaq Abshir Osman — a Somali national was convicted of piracy and sentenced to a mandatory life term — sought relief by way of compassionate release in the Eastern District of Virginia pursuant to 18 USC 3582(c)(1)(A). The district court granted Osman such relief in June 2023, reducing his life sentence to time served. The Government appealed the Release Order maintaining the court abused its discretion in granting Osman’s request for compassionate release. The court agreed and vacated the Release Order and remanded. In early 2010, Osman and six other Somali nationals acquired various weapons of war including at least three AK-47 assault rifles and a rocket-propelled grenade launcher (an “RPG”). They intended to use a small wooden skiff and their weapons arsenal to violently seize and hold for ransom a merchant ship in the Gulf of Aden which lies between the Arabian Peninsula and the Horn of Africa. In the early hours of April 10, 2010, the Somalis approached in their skiff what they believed to be a merchant ship. They closed on the ship and began firing their AK-47s at it. They also sought to load and use the RPG but were stymied by incompatible ammunition. The targeted ship was in fact the USS Ashland, a U.S. Navy ship, which was then transporting Marines and military equipment. Navy personnel aboard the Ashland returned fire with two shots from a 25-mm machine gun loaded with armor-piercing incendiary shells. Those shots resulted in a fire on the skiff, killed one Somali, and grievously injured another. The six that survived — including Osman — suffered serious burns and abandoned the skiff. They were rescued and apprehended by the Ashland and its Navy personnel. The compassionate release request underlying this appeal was filed in the district court in Jan. 2023, with the assistance of Osman’s court-appointed counsel. The relevant statute, 18 USC 3582(c)(1)(A), authorizes a sentencing court to reduce a sentence that has already been imposed, if it (1) finds that “extraordinary and compelling reasons warrant such a reduction,” and (2) “consider[s] the factors set forth in [18 USC 3553(a).” The district court granted Osman’s compassionate release motion and reduced his sentence to time served — approximately 13 years. In so ruling, the court described Osman’s argument as being that the 3553(a) factors of “his personal history and the nature of the offense present extraordinary and compelling reasons to reduce his sentence.” The court then endorsed that theory and awarded the requested relief. The district court began its analysis by addressing the 3553(a) factor of the nature and circumstances of the offense. According to the Order, that factor “weigh[s] in favor of compassionate release,” in that “[n]ot only did [Osman] and his co-conspirators cause no physical harm . . . but also the geo-political circumstances in Somalia that engendered piracy have shifted dramatically.” The Order then turned to “the remaining 3553(a) factors” and credited Osman’s “need for medical attention” for “kidney and other related medical issues”; his rehabilitative efforts while incarcerated, including beginning to learn English, maintaining a cleaning job, and incurring no disciplinary infractions; and his plans to return to Somalia and support his ailing mother and his four children there. Osman’s release plans also convinced the district court “that he is unlikely to recidivate and that the public will be protected.” The Order then turned to “the remaining 3553(a) factors” and credited Osman’s “need for medical attention” for “kidney and other related medical issues”; his rehabilitative efforts while incarcerated, including beginning to learn English, maintaining a cleaning job, and incurring no disciplinary infractions; and his plans to return to Somalia and support his ailing mother and his four children there. Osman’s release plans convinced the district court “that he is unlikely to recidivate and that the public will be protected.” In a concluding paragraph, the Order ruled that “the 3553(a) factors strongly weigh in [Osman’s] favor and his release would not undermine the respect for law or provide inadequate deterrence.” Finally, that ruling was followed by the district court’s identification of the same favorable 3553(a) factors — specifically, “the dramatic shift in geo-politics, the fact that the underlying crime caused no physical harm to the occupants of the USS Ashland [and] nothing was seized from the ship, [Osman’s] evident rehabilitation, and [his] release plan to provide for his family” — as the “extraordinary and compelling reasons” to award the relief sought. The court impermissibly collapsed the threshold “extraordinary and compelling reasons” inquiry into its consideration of the 3553(a) factors. The court reversed and remanded.
CR.RIS/REHABILITATION/MEDICAL/DISPARITY. The Southern District of Indiana granted a CR.RIS motion in United States v. Dannye McIntosh, 2024 U.S. Dist. LEXIS 136229 (S.D. Ind. Aug. 1, 2024). In 2005, a jury found McIntosh guilty of one count of conspiracy to possess with intent to distribute 100 kilograms or more of marijuana in violation of 21 USC 841(a)(1) and 846, and one count of possession with intent to distribute 100 kilograms or more of marijuana in violation of 21 USC 841 (a)(1)(b)(1)(viii), 846, and 851. The Court sentenced him to 360 months imprisonment. The United States argues that USSG 1B1.13(b)(5) of the Sentencing Guidelines is invalid because the Sentencing Commission exceeded its authority in promulgating this subsection. On the contrary rather than functioning outside the authority provided by Congress, 1B1.13(b)(5) fits squarely within the authority provided by Congress. First, 1B1.13(b)(5) was itself approved by Congress. All amendments or modifications to the sentencing guidelines must be submitted to Congress and do not go into effect until at least 180 days have passed without modification or disapproval by Congress. 28 USC 994(p). For that reason, Congress's tacit approval is required for any modification to the sentencing guidelines. Section 1B1.13(b)(5) was submitted to Congress on April 27, 2023. https://www.ussc.gov/guidelines/amendments/adopted-amendments-effective-november-1-2023. Congress took no action to modify or disapprove of the amendment, and 1B1.13(b)(5) went into effect on Nov. 1, 2023. Congress's tacit approval relieves any concerns that this subsection exceeds the authority Congress granted to the sentencing commission. Other Courts have relied on 1B1.13(b)(5) in finding that extraordinary and compelling reasons for release exist and granting a motion for compassionate release. The defendant argued that a combination of sentencing disparities between the sentence for his marijuana-related conviction and the sentences given for violent crimes, sentencing disparities between him and his co-defendant, the conditions of his confinement given his prior diagnosis of prostate cancer and his extraordinary rehabilitation combine to demonstrate that extraordinary and compelling reasons for his release exist. The Court found that McIntosh's prostate cancer diagnosis and the accompanying fears that his cancer may return and potentially result in his death may not alone constitute an extraordinary and compelling reason for release but may be similar in magnitude to a diagnosis of a terminal illness if combined with other reasons and strongly tips the scales towards a finding that extraordinary and compelling reasons for release exist. McIntosh's efforts towards rehabilitation were commendable. He had engaged in a substantial amount of programming focusing on both academic and practical topics. The Court concluded McIntosh had substantially rehabilitated himself while in the BOP and will likely enjoy a law-abiding and productive life post-incarceration. His rehabilitation, alongside other reasons, contributes strongly to finding that extraordinary and compelling reasons for his release exist. The Court found that McIntosh had established that extraordinary and compelling reasons for release under 1B1.13(b)(5) because a combination of his cancer diagnosis, the sentencing disparities between McIntosh and his co-defendant, and his rehabilitation presented circumstances similar in gravity to reasons detailed by the sentencing commission in 1B1.13(b)(1) through 1B1.13(b)(4). Sentence reduced to time served.
CR.RIS/REHABILITATION/YOUTH/DISPARITY. The District of Maryland granted a CR.RIS motion in United States v. Demetrius Smith, 2024 U.S. Dist. LEXIS 133950 (D. Md. July 30, 2024). Demetrius Smith is serving a 500-month sentence filed a renewed motion seeking compassionate release as invited by this Court in its opinion of July 15, 2022, denying Smith's previous motion without prejudice. Smith received his sentence in 1996 following his guilty plea to murder in aid of racketeering. He argued the extended length of his sentence in comparison with the likely sentence for the same offense today, in combination with his young age at the time of the offense and his evident rehabilitation over his almost twenty-nine years in custody, constitute extraordinary and compelling reasons supporting a reduction in his sentence from 500 to 360 months. The Government opposed Smith's petition in 2022 and stands on its earlier arguments. This Court afforded the Government an additional opportunity to supplement its submission with victim impact statements in accordance with the Crime Victims' Rights Act, 18 USC 3771, but no statements have been submitted. The Court granted Smith's renewed motion and reduced his sentence to 360 months, without altering the period of supervised release to follow. The Sentencing Commission report shows that in fiscal year 2023, the average sentence for murder was 285 months. In the last five fiscal years, 83.6 percent of defendants convicted of murder received sentences of 30 years or less. In the unique circumstances of this case the Court agreed that the unusually long length of Smith's sentence in combination with the gross disparity with the sentence he would receive today and his strong evidence of rehabilitation, constitutes an extraordinary and compelling reason to consider whether the 18 USC 3553(a) factors warranted reduction of his sentence to 360 months which was the low end of his guidelines range at the time of his sentencing.
CR.RIS/SEXUAL ABUSE. The Eastern District of California granted in part a CR.RIS motion in United States v. Jermila McCoy, 2024 U.S. Dist. LEXIS 136812 (E.D. Calif. Aug. 1, 2024). On Oct. 13, 2016, the defendant plead guilty to conspiracy to commit mail fraud in violation of 18 USC 1349. On Feb. 9, 2017, the court sentenced the defendant to a 110-month term of imprisonment. Since Feb. 2021, the defendant has been serving her sentence on home confinement with ankle monitoring. The defendant argued that the sexual abuse she suffered by a correctional officer at FCI Dublin constituted an extraordinary and compelling reason for release. The Government acknowledged that defendant's allegations about sexual assault at FCI Dublin have been verified and does not oppose defendant's request for a reduction of her term of imprisonment on those grounds. The Court concluded defendant had shown extraordinary and compelling reasons to reduce her sentence of imprisonment to time served and the 3553(a) factors support such a reduction. Accordingly, the Court granted that aspect of defendant's motion and reduced her sentence to time served. However, the Court agreed with the Government that a motion for compassionate release is not the proper vehicle for reducing defendant's term of supervised release.
AMENDMENT 821. The Southern District of New York granted an 821 motion in United States v. Andrew Badolato, 2024 U.S. Dist. LEXIS 135824 (S.D. N.Y. July 30, 2024). On April 26, 2023, after pleading guilty to conspiracy to commit wire fraud Andrew Badolato was sentenced to a term of imprisonment of 36 months. Part B of Amendment 821 inserts a new USSG 4C1.1 which provides a two-level offense level reduction for offenders with zero criminal history points who meet certain eligibility criteria. Sentence reduced to 33-months.
AMENDMENT 821, The Southern District of New York granted an 821 motion in United States v. Ruvin Krupkin, 2024 U.S. Dist. LEXIS 136305 (S.D. N.Y. Aug. 1, 2024). On Sept. 20, 2021 Ruvim Krupkin was sentenced to a term of 120 months after pleading guilty to conspiracy to distribute and possess with intent to distribute oxycodone in violation of 21 USC 841(b)(1) and 846. The Government agreed that the two-level reduction pursuant to Amendment 821 applied but objected to any further reduction. Sentence reduced to 95-months.
APPEAL/2255/IAC. The Fourth Circuit vacated and remanded United States v. Ahmad Hashimi, 2024 U.S. App. LEXIS 19330 (4th Cir. Aug. 2, 2024). Ahmad Hashimi was indicted on four counts, including drug-related charges and charges involving violence against his ex-girlfriend. Hashimi and his court-appointed lawyer, Bruce Johnson, had a contentious relationship with Hashimi repeatedly complaining about poor communication and the lack of a plea deal. Despite these issues the district court did not replace Johnson. During the trial, Johnson attempted to negotiate a plea deal for the violence charges but the court rejected it, and the case proceeded to the jury. In his closing argument, Johnson conceded Hashimi's guilt on the violence charges without Hashimi's explicit consent, focusing his defense on the drug charges. The jury found Hashimi guilty on all counts, and he was sentenced to 300 months. Hashimi appealed his conviction arguing that Johnson's concession of guilt without his consent violated his Sixth Amendment rights. The Fourth Circuit initially affirmed the conviction but reconsidered after the Supreme Court's decision in McCoy v. Louisiana, which established a defendant's right to maintain innocence. On remand, the Fourth Circuit again affirmed but allowed Hashimi to raise his claim in a 28 USC 2255 motion. Hashimi filed the motion, presenting evidence that he did not consent to the concession and highlighting his poor communication with Johnson. The Eastern District of Virginia denied Hashimi's 2255 motion without an evidentiary hearing reasoning that Hashimi did not explicitly object to the concession. The Fourth Circuit reviewed the case and found that the district court erred in denying the motion without a hearing. The appellate court held that the record did not conclusively show that Hashimi was informed of and consented to the concession as required by McCoy. The Fourth Circuit vacated the district court's decision and remanded the case for further factual development.
APPEAL/2254/EYEWITNESS IDENTIFICATION. The Sixth Circuit reversed and remanded David Smith v. Cynthia Davis, 2024 U.S. App. LEXIS 19253 (6th Cir. July 31, 2024). While investigating the beating and robbery of Quortney Tolliver, a law enforcement officer presented her with a single photograph of Petitioner David Smith and told her that he committed the crime and that he had been previously convicted for attempted murder, and he wanted her dead. Although Tolliver did not identify Smith as her assailant at the time she did positively identify him several months later. Based on the corruptive influence of law enforcement’s unduly suggestive procedures on Tolliver, Smith filed a motion to suppress Tolliver’s identification of him as her assailant. The trial court denied Smith’s motion. After being presented with Tolliver’s eyewitness identification during trial, a jury convicted Smith of attempted murder, felonious assault, aggravated robbery, and aggravated burglary. Following a direct appeal of the trial court’s suppression ruling and exhaustion of his state court options, Smith filed a petition for a writ of habeas corpus in federal court, pursuant to 28 USC 2254. Smith appealed from the district court’s denial of his habeas petition. Smith is entitled to relief on his claim that his due process rights were violated by the admission of Tolliver’s identification. The identification was obtained through unduly suggestive means conducive to irreparable mistaken identification, and lacked any strong indicia of reliability. Because the Ohio Court of Appeals unreasonably applied Supreme Court precedent related to eyewitness identifications, the court reversed the judgment of the district court and granted Smith’s federal habeas petition, meaning that Smith is entitled to a new trial. At the change-of-plea hearing, Faison indicated her belief that her plea was “contingent” on her “retaining the right to appeal the motion to suppress and [her] sentence.” The magistrate judge noted that there was no written plea agreement and confirmed this with both Faison’s counsel and the Government. However, the
magistrate judge mistakenly stated that a conditional guilty plea was not required “because there [wa]s no plea agreement.” The magistrate judge asked Faison if she understood that she did not “have to reserve anything” and would “continue to have” all of her rights to appeal “because she did not give anything up by agreeing to any document or contract or promise with the Government,” to which Faison replied, “[y]es.” The Government did not object to that statement. The Government did not, however, provide express consent for Faison to enter a conditional guilty plea in writing as was necessary for her to preserve her right to appeal the denial of her motion to suppress. Faison’s guilty plea was premised on a reasonable but mistaken belief that she had preserved her appellate rights and her plea was not knowing and voluntary as a matter of law.
APPEAL/RESENTENCE. The Second Circuit remanded United States v. Carlos Martinez, 2024 U.S. App. LEXIS 18779 (2d Cir. July 30, 2024). Carlos Martinez is a former federal prison guard who was convicted of multiple charges related to the repeated rape of an inmate, referred to as "Maria," at the Metropolitan Detention Center in Brooklyn, New York. Maria testified that Martinez raped her on five occasions using both physical force and threats to coerce her. The jury found Martinez guilty of several counts including sexual abuse by threats or fear, deprivation of civil rights, and aggravated sexual abuse for one of the rapes. The Eastern District of New York sentenced Martinez to 10-years. Martinez challenged the sufficiency of the evidence for two counts, arguing that the jury's acquittals on other counts indicated they did not believe Maria's testimony. The Government cross-appealed arguing that the 10-year sentence was procedurally and substantively unreasonable. The Second Circuit reviewed the case. The court rejected Martinez's sufficiency challenge, affirming that the jury was entitled to credit Maria's testimony that Martinez physically restrained her during one of the rapes. The court also noted that inconsistent verdicts do not undermine a conviction. The court found the district court's sentence procedurally unreasonable due to several errors: relying on clearly erroneous factual findings, misapprehending the law, and failing to sentence Martinez based on all his convictions. The district court improperly treated the convictions for sexual abuse by threats or fear as equivalent to sexual abuse of a ward and it had given undue weight to its doubts about the jury's guilty verdicts. The Second Circuit held that the 10-year sentence was also substantively unreasonable because it did not adequately reflect the seriousness of Martinez's offenses. The court affirmed the judgment of conviction, ordered that a specific paragraph in the Presentence Investigation Report be stricken, and remanded the case for resentencing consistent with the opinion.
APPEAL/RESTITUTION/FORFEITURE. The Second Circuit vacated and remanded United States v. Rainford, 2024 U.S. App. LEXIS 19305 (2d Cir. Aug. 2, 2024). The defendants were involved in a fraudulent slip-and-fall scheme in which they recruited poor and homeless individuals to stage accidents and seek unnecessary medical treatment. The scheme involved doctors and lawyers who would then sue property owners or their insurance companies for damages with the proceeds being divided among the conspirators. The recruits received minimal compensation compared to the organizers. The Southern District of New York convicted the defendants of conspiracy to commit mail and wire fraud. The jury found them guilty and the court sentenced them based on guidelines calculations, including enhancements for the number of victims and the amount of loss. The defendants appealed their convictions and sentences arguing various errors in the trial and sentencing process. The Second Circuit reviewed the case. The court affirmed the convictions, finding no persuasive arguments to overturn them. However, it remanded for factfinding regarding the number of fraudulent accidents orchestrated by the conspiracy during the defendants involvement to accurately compute the loss enhancement under USSG 2B1.1. The court vacated and remanded Duncan’s forfeiture order concluding it was based on Government allegations without factual support. The restitution order for Rainford and Locust was affirmed but modified by $120,000. Rainford’s sentence was affirmed but remanded for reconsideration in the interest of justice. The main holdings were: affirming the convictions, remanding for factfinding on the loss enhancement, vacating and remanding Duncan’s forfeiture order, modifying the restitution order, and remanding Rainford’s sentence for reconsideration.
APPEAL/MISADVICE. The Eleventh Circuit vacated and remanded United States v Shalonda Faison, 2024 U.S. App. LEXIS 19006 (11th Cir. July 31, 2024). Shalonda Faison appealed her convictions and 28-month sentence following her guilty plea to charges of conspiracy to make a false statement during the purchase of a firearm, 18 USC 371, 922(a)(6); engaging in the sale or transfer of a firearm to a prohibited person, 18 USC 922(d)(1); and knowingly making a false statement during the purchase of a firearm, 18 USC 922(a)(6). Faison and the Government agreed that the magistrate judge who accepted her plea misadvised her and that as a consequence her plea was not knowing and voluntary. They jointly moved the court to vacate Faison’s convictions and sentence and remand for further proceedings. After careful review, the court agreed with the parties and granted the joint motion.
APPEAL/1983/DISCOVERY/APPOINT COUNSEL. The Fourth Circuit vacated and remanded Kenneth Jenkins v. Sheriff Wayne Woodard, 2024 U.S. App. LEXIS 17920 (4th Cir. July 22, 2024). Jenkins was a pretrial detainee at Wilson County Detention Center (WCDC) in 2018, and he alleged he was subjected to unsanitary living conditions, including confinement in cells infested with feces, which led to a bacterial illness. Jenkins suffers from mental health disorders and claimed he was denied his medication, placed in solitary confinement, and later moved to an unsanitary "Rubber Room." He further alleged he was denied medical attention for severe rectal bleeding for several months which resulted in a diagnosis of multiple medical conditions. Jenkins filed a pro se complaint under 42 USC 1983 asserting violations of his Fourteenth Amendment rights. The Eastern District of North Carolina dismissed most of his claims but allowed his conditions-of-confinement and deliberate-indifference claims against Sheriff Calvin Woodard to proceed. Jenkins requested additional time for discovery and appointment of counsel both of which were denied by the district court. The court granted summary judgment in favor of Sheriff Woodard finding that Jenkins failed to demonstrate a material factual dispute. The Fourth Circuit reviewed the case and found that the district court abused its discretion in denying Jenkins’s requests for counsel and additional time for discovery. The appellate court noted Jenkins’s severe mental illness, lack of legal knowledge, and inability to access legal materials and evidence while incarcerated demonstrated he lacked the capacity to present his claims. The Fourth Circuit reversed the district court’s denials of Jenkins’s requests for discovery and counsel, vacated the summary judgment decision, and remanded the case for further proceedings, directing the district court to appoint counsel for Jenkins.
APPEAL/1983/UNLAWFUL DETENTION. The Eighth Circuit remanded Jason Storrs v. Travis Rozeboom, 2024 U.S. App. LEXIS 18313 (8th Cir. July 25, 2024). On Dec. 26, 2019, Officers Rozeboom and Malone responded to a shoplifting report at Dick’s Sporting Goods in Papillion, Nebraska. The suspects were described as a black male and black female in a silver four-door sedan. Malone spotted a similar vehicle and conducted a traffic stop. Storrs, a black male, was driving, and Smith, a white female, was the passenger. Despite the discrepancy in the suspect description, the officers detained Storrs and Smith. During the encounter, Storrs and Smith were uncooperative leading to their arrest and a search of their vehicle which allegedly smelled of marijuana. The District of Nebraska granted summary judgment in favor of the officers, finding they were entitled to qualified immunity on all claims. The court determined that the officers had reasonable suspicion for the initial stop and probable cause for the continued detention and search based on the alleged odor of marijuana. The court also found no evidence of excessive force or First Amendment retaliation. The Eighth Circuit reviewed the case. The court affirmed the district court's decision in part, agreeing that the officers had probable cause to arrest Storrs and Smith for obstructing a peace officer and that there was no evidence of excessive force or First Amendment retaliation. However, the court reversed the summary judgment on the claim of unlawful continued detention, finding that the officers lacked reasonable suspicion once they saw Smith was white. The court also found a genuine dispute of fact regarding the alleged odor of marijuana, precluding summary judgment on the illegal search claim. The case was remanded for further proceedings consistent with these findings.
APPEAL/1983/EXCESSIVE FORCE. The Fourth Circuit reversed and remanded Taylor Quinn v. Zerkle, 2024 U.S. App. LEXIS 19154 (4th Cir. Aug. 1, 2024). In Aug. 2019, Eric Toon led Lieutenant Christopher Zerkle on a high-speed chase before returning to his home, where his girlfriend, Taylor Quinn, was sleeping. Zerkle and other officers, including Sergeants Paxton Lively and Rick Keglor, and Deputies Brandon Kay and Jamie Miller, arrived at Toon’s residence. The officers knocked on the door, which eventually opened outward, leading them to enter the home. Toon then broke a window, jumped out with an AR-15, and was fatally shot by Zerkle and another officer. Quinn, who followed Toon out of the window was also injured. The Southern District of West Virginia dismissed some claims and granted summary judgment in favor of the officers on the remaining claims. The court found that the officers reasonably believed they had consent to enter the home when the door opened and that Zerkle’s use of deadly force against Toon was justified. The court also concluded that Quinn’s injuries were accidental and not the result of intentional excessive force. The Fourth Circuit reviewed the case and found that factual disputes precluded summary judgment on the warrantless entry claims and Quinn’s excessive force, battery, and trespass claims. The court held that the officers could not assume consent to enter the home merely because the door opened. The court also determined that there was sufficient evidence for a jury to find that Zerkle intentionally shot Quinn. The court affirmed the district court’s decision on the remaining claims including the excessive force claim related to Toon and the failure to intervene claim against Zerkle. The case was reversed in part, affirmed in part, and remanded for further proceedings.
APPEAL/1983/SEIZURE. The Fifth Circuit vacated and remanded Bilal Hankins v. Wheeler, 2024 U.S. App. LEXIS 19205 (5th Cir. Aug. 1, 2024). Bilal Hankins was a passenger in a car with two other youths was driving slowly at night looking for a neighbor’s lost dog. Hankins asked Officer Kevin Wheeler, who was on patrol for a local private security district, for assistance in finding the dog. Later, Officer Wheeler and another officer, Officer Ramon Pierre, stopped the car without reasonable suspicion and approached it with guns drawn. Hankins brought claims under 42 USC 1983 for unreasonable seizure, excessive force, constitutional conspiracy, supervisory liability, and Monell claims, along with related state-law claims. The Eastern District of Louisiana limited discovery to the issue of qualified immunity. The district court concluded that there was no question of material fact as to whether there was an underlying constitutional violation of either Hankins’ right to be free from an unlawful seizure or his right to be free from excessive, unlawful force. Consequently, the district court granted summary judgment to the defendants on all federal claims, as each federal claim relied on an underlying constitutional violation. The court also declined supplemental jurisdiction over the state-law claims and dismissed those without prejudice. The Fifth Circuit reviewed the case and found that material fact disputes precluded summary judgment on the seizure claim. The court held that the factors relied upon by the district court, such as the car’s registration information, the time of night, and the car driving slowly, did not amount to reasonable suspicion when considered in the totality of the circumstances. The court also noted that Hankins’ testimony that Officer Wheeler said, “you know, three young men, in a nice car, in this neighborhood,” if credited, would undermine the officers’ justification for the stop. The Fifth Circuit reversed the summary judgment on the seizure claim, vacated the summary judgment on the other federal claims, and remanded for further proceedings.
APPEAL/IMMIGRATION. The Ninth Circuit remanded Peng Shen v. Garland, 2024 U.S. App. LEXIS 18210 (9th Cir. July 24, 2024). Peng Shen is a Chinese citizen, applied for asylum, withholding of removal, and relief under the Convention Against Torture, claiming she was subjected to a forced abortion in China in 2003. Shen testified that a mandatory premarital health exam revealed her pregnancy, leading to the forced abortion. During cross-examination, DHS counsel suggested that the Chinese government had eliminated the premarital health check-up requirement by Jan. 2003, causing Shen to become flustered and change her testimony. The Immigration Judge (IJ) denied Shen's application, finding her not credible based on her demeanor and inconsistencies in her testimony. The IJ noted Shen's initial confusion about the abortion date, her inconsistent statements about the premarital check-up, and discrepancies in her documentary evidence. The Board of Immigration Appeals (BIA) upheld the IJ's decision, focusing on Shen's inconsistent testimony about the premarital check-up and the notarial certificate's incorrect date. The Ninth Circuit reviewed the case. The court determined that DHS counsel had misstated Chinese law regarding the premarital check-up requirement, which was repealed effective Oct. 1, 2003. This misstatement likely affected the IJ's adverse credibility determination. The court concluded that Shen's flustered response to the incorrect information could have been due to the pressure of the situation rather than dishonesty. The Ninth Circuit granted Shen's petition for review and remanded the case for further proceedings, instructing the agency to reassess Shen's credibility without the influence of the incorrect legal information provided during cross-examination. The court emphasized the need to consider the totality of the circumstances in making credibility determinations.
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