Appeals

Oregon law makes it a crime to surreptitiously record conversations with another person without their knowledge . . . unless you're a cop performing official duties, in which case, record away! Project Veritas—which has something of a history of secretly recording conversations—challenges the recording ban as a violation of the First Amendment. Ninth Circuit: And they're right. The ban is unconstitutional. Dissent: We should just sever the exceptions for law enforcement and then the ban is fine.

It is obviously unreasonable for an off-duty, out-of-uniform police officer to lose his temper on the road, follow another motorist home, box him in his driveway, scream profanities, all before identifying himself as law enforcement, and point a gun at the nonthreatening motorist. At least so says the Tenth Circuit, reversing a grant of qualified immunity to a (now-former) Chaves County, N.M. sheriff's deputy David Bradshaw.

In en banc news, the Ninth Circuit will not reconsider its decision that the Cruel and Unusual Punishment Clause prevents Grants Pass, Oregon officials from ticketing people  experiencing homelessness for, among other things, sleeping in public parks or in their cars.

Grants Pass, Ore. has more homeless residents than shelter beds, forcing some homeless to sleep in public spaces. Easy fix, says the town, we'll just make that illegal. Ninth Circuit: You can't ticket the involuntarily homeless just for being homeless.

Connecticut prisoner has an "intolerable" scalp condition consisting of painful scabs and oozing sores. Prison officials allegedly deny treatment for years. District court: there are no binding cases holding that a scalp condition is a serious medical need requiring treatment. Second Circuit: Qualified immunity is specific, but it's not that specific. The guy said his head felt like it was on fire. Reversed and remanded.

The case is Collymore v. Myers, Collymore v. Comm’r of D.O.C., No. 21-02292 (2d Cir. July 14, 2023).

If prosecutors don't turn over potentially exculpatory evidence and a person on death row finds out about it (by accident) years later, does that mean he gets a new trial? Well, explains the Fourth Circuit over the course of 102 pages, it depends.

The case is Juniper v. Davis, No. 21-00009 (4th Cir. July 19, 2023).

Kannapolis, N.C. police officer Jeremy Page catches drug dealer/informant selling crack but says he won't arrest drug dealer if he hands over any other drugs he has and does more to help the police. He agrees, hands over more drugs, and helps police find a fugitive. Officer then decides that's not enough, swears out arrest warrants, and more drugs are found during arrest. Is cop's non-arrest-for-cooperation deal enforceable?

Remember that "it depends" about prosecutors not turning over potentially exculpatory evidence from the Fourth Circuit? Well, that also applies for evidence useful for impeaching government witnesses.

After Illinois man withdraws a plea that exposed him to a likely 35-year sentence for, among other things, distributing heroin, the government returns a superseding indictment including additional charges that expose him to a likely 60-year sentence. He goes to trial, is convicted, and is sentenced to 65 years' imprisonment. But wait! Three weeks after the trial, it comes to light that the man's defense lawyer is addicted to heroin and has struggled with substance abuse for quite some time.

A black man charged in a drug case appears before a white Detroit federal judge. Judge, frustrated with the many delays in the case, declared: “This guy looks like a criminal to me.” Black man: not cool. White judge two years later: I was mad at the time, “I regret it,” and "just because I got mad does not mean I'm biased." Imposes 10 ½ years imprisonment. Prosecutor: Judge's remark was a reference to the crime, not the man's appearance. Sixth Circuit: Whatever.