Justia Weekly Writers’ Picks: One for the Road


Abdouch v. Lopez, Nebraska Supreme Court (4/19/13)
Civil Rights, Constitutional Law, Injury Law

952313_gavelPlaintiff was a resident of Nebraska. In 1963, Plaintiff received a copy of the book “Revolutionary Road,” which was inscribed to her by the late author Richard Yates. Plaintiff’s inscribed copy of the book was later stolen. Ken Lopez and his company, Ken Lopez Bookseller (KLB), bought the book in 2009 from a seller in Georgia and sold it to a customer not in Nebraska. Plaintiff later learned that Lopez had used the inscription in the book for advertising purposes on his website. Plaintiff brought suit against Lopez and KLB for violating her right to privacy. The district court dismissed the case for lack of personal jurisdiction. The Supreme Court affirmed, holding that Plaintiff’s complaint failed to plead facts to demonstrate that Lopez and KLB had sufficient minimum contacts with the state of Nebraska, as (1) the contacts created by the website were unrelated to Plaintiff’s cause of action, and (2) under the Calder v. Jones foreseeable effects test, the pleadings failed to establish that Lopez and KLB expressly aimed their tortious conduct at the state of Nebraska.

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Moncrieff v. Holder, United States Supreme Court (4/23/13)
Criminal Law, Immigration Law

Moncrieffe, a Jamaican citizen legally in the U.S., was found with 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. Under the Immigration and Nationality Act, a noncitizen convicted of an “aggravated felony” is deportable, 8 U.S.C. 227(a)(2)(A)(iii), and ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled substance,” including conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony (by more than one year’s imprisonment). A state conviction is a felony punishable under the CSA only if it involves conduct punishable as a felony under federal law. Possession of marijuana with intent to distribute is a CSA offense, 21 U.S.C. 841(a), punishable by up to five years’ imprisonment. An Immigration Judge ordered Moncrieffe removed. The Board of Immigration Appeals affirmed. The Fifth Circuit denied a petition for review, rejecting reliance on section 841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration. The Supreme Court reversed and remanded. If a noncitizen’s conviction for marijuana distribution fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA. The Court employed the “categorical approach,” examining what the state conviction necessarily involved and not the facts underlying the case, and presuming that the conviction involved the least of the acts criminalized.  Conviction under Georgia’s statute, alone, does not reveal whether either remuneration or more than a small amount was involved, so Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. The Court rejected an argument that section 841(b)(4) was merely a mitigating sentencing factor, not an element of the offense.  The government’s proposal that noncitizens be allowed, during immigration proceedings, to demonstrate that their convictions involved only a small amount of marijuana and no remuneration is inconsistent with the INA’s text and the categorical approach and would burden immigration courts and the noncitizens involved. Escaping aggravated felony treatment does not necessarily mean escaping deportation, because any marijuana distribution offense renders a noncitizen deportable as a controlled substances offender, but with an opportunity seek relief from removal.

Read More: Justices give break to legal immigrants convicted of pot possession

Arnzen, III, et al. v. Palmer, et al., US 8th Cir. (4/22/13)
Civil Rights, Constitutional Law, Criminal Law

Plaintiffs, patients at the Iowa Civil Commitment Unit for Sex Offenders (CCUSO), filed a complaint under 42 U.S.C. 1983 challenging the placement of video cameras in CCUSO restrooms, and moved for a preliminary injunction to stop their use. The district court denied the motion as to cameras in the dormitory style restrooms but granted a preliminary injunction ordering that cameras in the traditional style bathrooms be pointed at the ceiling or covered with a lens cap. The administrators of CCUSO appealed the district court’s grant of the preliminary injunction. The court concluded that by capturing images of patients while they occupy single-user bathrooms, CCUSO violated its patients’ reasonable expectation of privacy, thus conducting a search under the Fourth Amendment, irrespective of whether there was some chance that those images would not be viewed. The court agreed with the district court that plaintiffs showed the requisite probability of success on their Fourth Amendment claim; plaintiffs established a threat of irreparable harm; plaintiffs’ interests in this case outweighed the injuries that the injunction would inflict on other parties; and there was a greater public interest in protecting the Fourth Amendment rights of plaintiffs and their personal privacy and dignity against unwarranted intrusion by the State. Accordingly, the court affirmed the judgment.