Tuesday, November 28, 2017

Racial profiling is illegal in Kansas: now what?

Kansas law prohibits law-enforcement officers from using race or other prohibited factors when deciding whether to conduct a stop, arrest, or search. K.S.A. 22-4606, et seq.

Last month, the Kansas Supreme Court held in State v. Gray, 403 P.3d 1220 (Kan. 2017), that suppression is an appopriate remedy in state court for an officer's violation of this law. This is a must-read case for all Kansas state practitioners.

But how can this state law help our federal clients? The Supreme Court has held that violations of state law do not by themselves render a search or seizure unreasonable for Fourth Amendment purposes. See Virginia v. Moore, 553 U.S. 164 (2008). But a violation of Kansas's anti-profiling law might be decent fodder for cross-examining an officer who claims to be well trained and respectful of a client's legal rights.

Even better, violations of Kansas's anti-profiling law might render an officer's conduct flagrant for purposes of an attenuation analysis under Utah v. Strieff, 136 S.Ct. 2056 (2016). As we recently blogged, the discovery of an arrest warrant after an illegal stop will not remove the taint of a stop that resulted from racial profiling.

How else can we call upon this law to help our clients? Let us know your thoughts. The Kansas legislature did a righteous thing by adopting an anti-profiling law. Let's do our part to see that the law is enforced.

Sunday, November 26, 2017

Risk of flight must be volitional under Bail Reform Act: "A defendant is not barred from release because he is a deportable alien."

An immigration "detainer" in effect at the time of an initial appearance in federal court is not enough, standing alone, to justify detention under the Bail Reform Act, according to a ground-breaking Tenth Circuit decision published last week. In United States v. Ailon-Ailon, the Court held that the risk of removal by ICE is not the same as a risk that the defendant will flee. This was an issue of first impression in this circuit.

Mr. Ailon-Ailon is charged with an immigration offense in the District of Kansas. The government moved to keep him in custody because an immigration detainer had been filed with the U.S. Marshal. That detainer was actually a form from ICE asking to take custody of the defendant if he were released from federal custody because he was (allegedly) subject to a reinstated deportation order.

The district court detained Mr. Ailon-Ailon based on a risk of flight. That is, the court determined that removal by immigration posed "a serious risk that such person will flee," a determinative factor under 18 U.S.C. § 3142(f)(2).


The Tenth Circuit reversed. "We conclude that the plain meaning of 'flee' refers to a volitional act rather than involuntary removal, and that the structure of the Bail Reform Act supports this plain-text reading." The Court observed, "As Ailon-Ailon noted at oral argument, one would not describe an individual who has been arrested at a crime scene and involuntarily transported to a police station as having fled the  scene." The government argued, unconvincingly, that it had no control over whether or when ICE would deport; the Court held that any fight over which federal agency has priority is for the Executive Branch to resolve.
Image result for tug-of-war cartoon federal agency
The remedy was not a remand for further hearing on whether Mr. Ailon-Ailon should be released, but a directive to the lower court "to set appropriate conditions for Ailon-Ailon’s release pending trial. When the conditions of release have been met, the United States Marshals shall release Ailon-Ailon to ICE custody, pursuant to the detainer."

-- Melody





Sunday, November 19, 2017

Cert Grant Series: Partying with the Justices

District of Columbia v. Wesby presents two Fourth Amendment issues arising from a fun and possibly wild party at an apparently vacant house. Police arrived (who invited them?) finding, among other entertainment, “scantily clad women with money tucked into garter belts” and "used contraceptives strewn about." Some attendees indicated the host, "Peaches", was not present. Police eventually identified the lawful property owner (Peaches' landlord, as luck would have it) who disowned the partygoers.

All attendees, including Mr. Wesby, were arrested for trespassing. They then sued the police for wrongful arrest (no probable cause) and lack of qualified immunity.

The questions presented are:

Do officers have probable cause to arrest for unlawful entry under D.C. law despite a claim of good-faith entry? and 

Was the law sufficiently clearly established to justify the denial of immunity to the officers?

Image result for image Justice Kagan
Going to a different kind of party. 
So far, the lower courts have been partiers, ruling in Mr. Wesby's favor on both questions. And it appears that SCOTUS wants to be invited to the party, too. At oral argument, Justice Sotomayor jumped right in, noting that when she is invited to a party, "I don't ask to look at their lease." And it appears that Justice Kagan may feel protective of "reasonable partygoers," noting, "there are these parties that, once long ago, I used to be invited to -- -- where you didn't -- don't know the host, but you know Joe is having a party." And then, "And can I say that long, long ago, marijuana was maybe present at those parties? And, you know, so -- and, you know, it just is not obvious that the reasonable partygoer is supposed to walk into this apartment and say: Got to get out of here. And -- and it seems a little bit hard that they're subject to arrest."

Justice Sotomayor closed by asking Petitioner's counsel, "Twenty one people en masse arrested for trespassing for going to a party. Does that feel right?"

Party on, Mr. Wesby? We will see.

Thanks to Oyez for the transcript.

Decision below at 765 F.3d 13 (8th Cir. 2016).
Cert. granted Jan. 19, 2017

Tuesday, November 14, 2017

Tenth Circuit in session this week

The Tenth Circuit is hearing arguments this week in a host of criminal cases. For details, follow the November 2017 Argument Calendar link on our website.

In addition to, you guessed it, quite a few predicate-offense issues, the Court is hearing arguments on other sentencing issues, trial issues, and quite a few interesting Fourth Amendment issues as well. Check out our Issues Pending link if you want to follow any or all of the issues currently pending in the Circuit; use the case numbers to find the briefs on PACER and learn what others are arguing in cases like yours. And let us know if you find this resource useful.
Image result for tenth circuit oral argument

Tuesday, November 7, 2017

Brady: Not just a jury trial right

Looking for persuasive authority that the district court can grant your Brady motion for information related to a motion to suppress or dismiss? Check out footnote 10, buried deeply within United States v. Wells, a Tenth Circuit case decided last month.

Mr. Wells and his codefendant were convicted of misdemeanor trespassing for operating ATVs on federal land closed by the Bureau of Land Management for that purpose during a land-use protest. On appeal, they argued (among other things) that the district court should have granted them a new trial based on their Brady claim that the government failed to disclose a right-of-way map that they could have used to negate the legality of BLM's closure order.

The Tenth Circuit rejected this argument, holding that the evidence was not material to the claimed defense. On the way to that holding, the Court declined to adopt the government's position "that evidence relevant to a ruling made by a judge—as opposed to a factual finding made by a jury—cannot, as a categorical matter, constitute Brady material":

"Under the circumstances of this case, we are not persuaded by the government's argument, though we need not definitively opine on the matter. . . . [T]he government . . . offers no legal authority to support its underlying premise—viz., that a Brady claim cannot be based on a piece of evidence that could only affect a question to be decided by the court rather than the jury—and we have not unearthed any. For example, can it truly be said that such evidence can never, as a categorical matter, engender 'a reasonable probability that the result of the proceeding would have been different'? Reese, 745 F.3d at 1083. It is enough for us to note that, in light of the government's scant presentation here, we may assume that Defendants-Appellants could make a Brady argument based on the suppression of evidence pertinent to an R.S. 2477 defense in a criminal prosecution."

Thursday, November 2, 2017

Hobbs Act robbery is not a crime of violence under Career Offender Guideline

Remember when we kept blogging about robbery and crimes of violence? Well, we are back to that again. Earlier this week in United States v. O'Connor, the 10th Circuit held that a robbery conviction that can be committed through threats to property is: (1) not generic robbery, and (2) not the new guideline definition of extortion. As the Court explained:
In both instances, we conclude that because Hobbs Act robbery includes threats to property, it is broader than both generic robbery and Guidelines extortion, which are limited to threats to a person. Hobbs Act robbery is therefore not categorically a crime of violence under the enumerated offense clause. 
The case is a good reminder to always read the commentary to the Guidelines. In the August 1, 2016 changes to the Career Offender Guideline (which also removes the residual clause and moved some enumerated offenses from the commentary to the Guideline itself) the commission created a new, narrow definition of extortion. If the generic definition of extortion would have remained instead of the narrower definition, most likely Mr. O'Connor's conviction would have been affirmed (see: United States v. Castillo).