First Circuit Rules Against Government on Issue of Mandatory Detention in Immigration Case

In a very interesting case, the First Circuit Court of Appeals, in Saysana v. Gillen, ruled against the government in an immigration case centered around the denial of bond to detainee and the mandatory detention provision of 8 U.S.C. § 1226(c).  Here’s the introduction of the opinion, written by Judge Kenneth F. Ripple:

In 2007, Houng Saysana was taken into custody by Immigration and Customs Enforcement (“ICE”) and held without bond. After agency proceedings in which bond was again denied, he filed this petition for habeas corpus in the district court, challenging the conclusion of the Board of Immigration Appeals (“BIA” or “Board”) that he is subject to the mandatory detention provision in 8 U.S.C. § 1226(c). The district court concluded that the Board had misinterpreted the statute, and it granted the writ. The Government timely appealed. Because we conclude that the Government has adopted an interpretation contrary to the plain meaning of the statute, we affirm the judgment of the district court. We also hold, in the alternative, that, even if the statute were ambiguous, the position of the Government is not a reasonable one.

Further along, Judge Ripple writes the following:

We conclude that the meaning of the statute is clear on the issue before us; the statute contemplates mandatory detention following release from non-DHS custody for an offense specified in the statute, not merely any release from any non-DHS custody. We further conclude that, even if the statute were ambiguous, the interpretation of the Board is not reasonable. Accordingly, we must affirm the judgment of the district court.

Boston Jury Awards $15 million in Medical Malpractice Verdict for Death of 3-year-old

The Boston Globe reports that a Boston jury awarded $15 million to the parents of a 3-year-old Pennsylvania child whose 2004 death at Children’s Hospital Boston was the focus of a malpractice lawsuit. The jury found that former physician-in-chief at Children’s Dr. James Lock and anesthesiologist Dr. James A. DiNardo were negligent in the death of Jason Fox during treatment him for congenital heart disease. The lawsuit claims that the doctors lied to the Fox family about the treatments Jason was receiving at Children’s. The actual damages received will be less, due to an agreement reached while the jury was deliberating, but the exact number has not been specified.

NYTimes Urges Corrections to Iqbal Ruling

The New York Times correctly editorialized that changes need to be made in the wake of the Supreme Court’s ruling in Ashcroft v. Iqbal ruling:

In a lamentable 5-to-4 decision earlier this year, the Supreme Court discarded 50 years of legal precedent to make it significantly harder for Americans to assert their legal rights in federal court.

The ruling, in the case of Ashcroft v. Iqbal, involved a Muslim man swept up on immigrations charges after the Sept. 11 attacks. The court’s conservative majority decided that he could not sue the high-ranking federal officials he deemed responsible for setting the policies behind the terrible abuse he said he suffered in detention.

But the ruling’s damage went beyond the case or the national security sphere. The court altered the procedural rules for initiating a lawsuit, raising the bar in a fashion destined to make it far harder to bring valid actions and to allow wrongdoers to avoid accountability.

For decades, a plaintiff filing a lawsuit needed to file only a short, clear statement of his claim and its legal grounds. That standard recognized that much of the evidence needed to prove claims may be in the hands of the defendant and not available before the pretrial discovery process. The Iqbal ruling, which followed a similar 2007 ruling applying to antitrust claims, abandoned that approach. Under the court’s new regimen, judges must assess the “plausibility” of the facts of an allegation before allowing the plaintiff to begin collecting evidence. That gives judges excessive latitude to bury cases based on their subjective views before the evidence emerges and can be fairly weighed.

The practical impact in, say, an employment discrimination case, is to disadvantage the wronged employee, who is unlikely to have access at the outset to the records needed to prove wrongful conduct. Testifying at a Senate Judiciary Committee hearing earlier this month, John Payton, the president of the NAACP Legal Defense and Education Fund, expressed doubt that some of the major cases of the civil rights era could have survived the heightened standard. The courts have already applied Iqbal to dismiss numerous lawsuits prematurely.

Representative Jerrold Nadler, a Democrat of New York, has introduced corrective legislation in the House. Senator Arlen Specter, a Pennsylvania Democrat, has introduced another bill targeting the problem. It is the responsibility of Congress to reopen the courthouse doors.

Another Rhode Island Police Officer Accused of Brutality

In the wake of a Woonsocket police officer arraigned and arrested by the FBI for allegedly brutalizing a 16 year old boy and a videotape showing a Providence police officer striking a handcuffed suspect, the Associated Press reports that a Lincoln police officer has been charged by the RI State Police with assault with a deadly weapon.

The department says the alleged assault occurred May 31 while the officer, identified as Edward Krawetz, was working a uniformed police detail.

The department says it did its own internal investigation and forwarded it to the Rhode Island State Police for a criminal probe.

Capt. Raymond Bousquet says Krawetz has been with the department for 12 1/2 years.

More from the AP via the Journal blog:

A Rhode Island police officer has been charged with assaulting a woman after she was taken out of a slot parlor for being disorderly, authorities said Friday.

Officer Edward Krawetz has been suspended without pay and faces administrative charges as well, Lincoln police Capt. Raymond Bousquet said.

A person with knowledge of the May 31 incident tells The Associated Press a videotape shows Krawetz kicking the handcuffed woman in the head as the two waited outside for a patrol car to arrive. The person is not authorized to publicly discuss the case and spoke on condition of anonymity.

AG Patrick Lynch Launches Campaign Website for Gubernatorial Campaign

Earlier this week, Rhode Island Attorney General Patrick Lynch launched a new campaign web site, www.lynch2010.com.

“I am committed to running a modern campaign and using the Internet to inform voters and to recruit and mobilize supporters and potential supporters,” Lynch said. “Most importantly, it’s a great resource for supporters and potential supporters to learn about me and my campaign. I hope everyone visits often.”

The new site solidifies his entrance into the race for Governor: a field that currently includes General Treasurer Frank Caprio (D) as well as former US Senator Lincoln Chafee (I) and perennial candidate Bob Healey (I).  Former Cranston Mayor Steve Laffey is also rumored to be building a campaign.  The newly formed Moderate Party is also expected to field a candidate.

One of the features of the new campaign website is a lengthy campaign video outlining Lynch’s message and his approach to the gubernatorial race:

Alabama Lawsuit Alleges CT Scanners Use Too Much Radiation

A class-action lawsuit was filed against G.E. Healthcare Tuesday in Huntsville, Ala., on behalf of 16 people who allegedly received high doses of radiation from the company’s CT perfusion scanners. According to the lawsuit, G. E. Healthcare “carelessly researched the design and failed to adequately test its products, and that the scanners lacked safety features to warn of overdoses.” The suit is seeking a minimum of $5 million to cover future healthcare costs and payments. The U.S. Food and Drug Administration recently found that that CT perfusion scans provided hundreds of patients with roughly eight times the recommended radiation levels.

Hillary Swank to play RWU Law Grad in Betty Anne Waters

One of the films to watch out for in 2010 is Betty Anne Waters. The film tells the story of how Betty Ann Waters (Hilary Swank), an unemployed single mother of two, saw her brother begin serving a life sentence in 1983 for murder and robbery.

Convinced that he was innocent, she spent the next 12 years taking steps to earn a law degree at Roger Williams University School of Law. After graduating, Waters challenged her brother’s conviction with DNA evidence, proved his innocence, and Kenneth Waters walked out a free man in March 2001. The film also stars Minnie Driver, Sam Rockwell and Juliette Lewis.

You can read more about the inspiring tale of Betty Anne and her brother Kenny here.

Eighteen years ago, he watched his relatives cry when he was sentenced to life in prison for a murder they were sure he didn’t commit. Yesterday, they shed tears again in the very same courthouse as he was set free, his murder conviction vacated by newly tested DNA evidence.

As he emerged from a Middlesex Superior courtroom yesterday into a crush of reporters, Kenneth Waters, 47, hugged exuberant family members, some of whom he’d never met. Soon after, he ate his first corned beef sandwich in nearly two decades, saw his first cellphone, and drank his first Starbucks coffee.

”It’s great to be free,” he said, thanking his sister, Betty Anne Waters, who earned a law degree so she could wage the extraordinary legal battle that led to his release.

”I think it’s absolutely amazing that she’s dedicated her life to this.”

Rhode Island Supreme Court Affirms Judgment for the City of Cranston in Suit Brought by School Committee

In a 32-page opinion, written by Chief Justice Paul A. Suttell, the Supreme Court of Rhode Island affirmed the judgment of the lower court (Superior Court Associate Justice Jeffrey A. Lanphear Judith C. Savage) in favor of the defendants, the members of the Cranston City Council, the Mayor, and the Director of Finance and against the plaintiffs – the School Committee of the City of Cranston and the Superintendent of Schools – who had brought this “Caruolo action” seeking additional city funds for city schools for the fiscal year (FY) 2007-2008.

The plaintiffs contended that the trial justice erred in concluding that the school committee did not meet the statutory prerequisites for filing a Caruolo action under R.I.G.L. 1956 § 16-2-21.4, as well as alleging a number of other errors.

The Court concluded that, in light of the language of the Caruolo Act itself, as well as the other pertinent provisions of G.L. 1956 chapter 2 of title 6, it was clearly the General Assembly’s intent to encourage expeditious action in instances of potential school deficit spending.  The Court therefore affirmed the trial justice’s application of the doctrine of laches in the instant case. The Court further held that the trial justice did not abuse her discretion in discussing the plaintiffs’ failure to conform to other statutory requirements prior to bringing the Caruolo action.

How to Obtain Your FBI and Homeland Security File

Ever wonder whether if the FBI or the Department of Homeland Security keeps a file of you?

Here’s how to find out.

• FBI File – In order to get a copy of your Federal Bureau of Investigation file, click here to view instructions for filing a request (which must be notarized) pursuant to the Freedom of Information Act.  If the file is under 50 pages, there is no charge to send it to you.
• Your Homeland Security File : Since the Department of Homeland Security has files on many frequent international travelers, you may want to request a copy of your file.  Click here to find out how.

Update on Judicial Nominees and Confirmations

President Barack Obama has nominated 30 people to federal judgeships thus far in his presidency.  Here’s the breakdown.

11 Confirmations

• 1 SCOTUS:  (Sotomayor)
• 3 CIRCUIT COURTS of APPEAL:  (Lynch, Davis, Hamilton)
• 7 DISTRICT COURTS:  (Viken, Lange, Berger, Honeywell, Reiss, Kallon, Nguyen)

19 Nominees Pending:

• 9 CIRCUIT COURTS of APPEAL:  (Thompson, Chin, Vanaskie, Greenaway, Keenan, Diaz, Wynn, Stranch, Martin)
• 10 DISTRICT COURTS:  (Jackson, Butler, Conley, Seeborg, Gee, Chen, Peterson, Freudenthal, Marshall, Pearson)

Overall, there are 97 total Federal Court vacancies: 20 in the Circuits and 77 in the District Courts.

Rory Smith Quits Rhode Island Gubernatorial Race

Rory Smith was very briefly the Republican candidate for Governor in Rhode Island.  No more.

“After spending the last few months considering a run for Governor, I have decided to suspend my campaign and return all campaign contributions. While I am deeply appreciative of the support of those who know me well, I have come to the conclusion that as a newcomer to politics, my limited political experience and political network in Rhode Island will keep me from running a fully competitive campaign. I am still concerned about the critical issues facing our State and hope to use my knowledge and experience to make Rhode Island a better place both now and in the future.

I would like to especially thank Republican Party Chairman Giovanni Cicione for his encouragement and leadership. He has been a strong and skilled voice for the Rhode Island Republican Party, and he will have my support as he continues to grow and strengthen the Party in the years ahead.”

What does this mean?  Where will conservatives now go?  Does this signal a Laffey candidacy?  Will Smith voters move to Caprio (as this poll shows)?

PS. It must have been my searing comparison between Rory Smith and Rory the Racecar that forced him out! 

FBI Arrests & Arraigns Woonsocket Police Officer, John H. Douglas

According to the Providence Journal, a Woonsocket police officer – John H. Douglas, 34, of Blackstone, Mass. – was arrested by the FBI and arraigned Thursday in RI Federal Court on charges that he violated the civil rights of a 16 year old in his custody by assaulting him and on charges of obstructing justice. As a result of the assault, the 16 year old boy had the socket around his left eye fractured in three places and he also suffered a broken nose.

These charges are clearly disturbing; the police are supposed to be defenders of the law and the public trust and not perpetrators of needless violence and law-breakers.  Indeed, the allegations of obstructing justice provide credence to the long-held belief that the police operate with impunity behind a blue wall of silence.

Courtesy of the Journal, you can read a copy of the indictment in .pdf format.  The indictment alleges that Douglas did “punch, strike, and otherwise assault” the victim, resulting in bodily injury.  And the second count of the indictment alleges that Douglas obstructed justice when he allegedly tried to persuade other Woonsocket officers to provide false information to FBI agents who were investigating the matter.

In an unusual move for the judiciary demonstrating the severity of the boy’s injuries, this case first made the news when Chief Family Court Judge Jeremiah S. Jeremiah Jr. called the Providence Journal in September with the news that the boy had appeared in his court with severe injuries.

The maximum penalty for the civil rights allegation is 10 years in federal prison and a $250,000 fine. The maximum penalty for obstruction of justice is 20 years in federal prison and a $250,000 fine.

Martha Coakley Wins Democratic Nomination for US Senate in Massachusetts

Via Boston.com:

Democratic Primary

• Martha Coakley – 47%
• Michael Capuano – 28%
• Alan Khazei – 13%
• Stephen Pagliuca – 12%

100% Reporting of Precincts Reporting.

Judge O. Rogeriee Thompson Sails Through the Senate Judiciary Committee

Superior Court Associate Justice O. Rogeriee Thompson came a step closer to making history as the first African-American woman to serve on the U.S. Court of Appeals for the First Circuit after sailing through her Senate Judiciary Committee hearing earlier this week, according to the Providence Journal.

“I hope that smooth sailing … continues on the floor,” said Sen. Sheldon Whitehouse, who chaired the 25-minute hearing. “So far, so good,” Whitehouse later added, saying it would be difficult for Republicans to question her nomination before the full Senate, since they had failed to appear at the hearing.

…“I am amazed as to the historic significance of this day,” said Clifford Monteiro, president of the Providence branch of the NAACP. It was Monteiro’s first Senate Judiciary hearing. “To see someone who came from such humble beginnings, and establish such precedent. I think she’s an inspiration to all women, to all minorities and all Americans.”

Sen. Jack Reed introduced Thompson to the committee, with only Whitehouse and one other member in attendance. Reed, with Whitehouse, recommended Thompson to replace Senior Circuit Judge Bruce M. Selya for what is traditionally known as the “Rhode Island seat” on the appeals court.

Reed, who is not a member of the Judiciary Committee, praised Thompson’s temperament, integrity and impartiality. She was chosen, he said, from among 30 applicants, in part, after an examination of what motivated the candidates’ choices in life. “We came to the conclusion Judge Thompson was uniquely qualified to serve on the First Circuit,” Reed said.

Whitehouse noted that she was the first African-American woman appointed to Rhode Island’s District Court and Superior Court. “It is fitting that she is the one to make another piece of long-overdue history,” he said. “She is a worthy nominee for this historic occasion.”

He questioned Thompson about her experience with constitutional and federal law. She responded that often, as a state court judge, she had to study federal court precedent and “make a judgment how it should be applied.” Federal and state laws frequently overlap, she said.

I agree with another attorney blogger – Brassband at RIFuture.org – that Judge Thompson’s two decades of experience as a state trial court judge will greatly benefit the First Circuit.  I join him in hoping that the Senate goes about its business quickly and confirms Judge Thompson’s nomination.

Cranston Council Overrides Veto; Implements New Foreclosure Laws

With a unanimous vote, the Cranston City Council overrode two vetoes from Mayor Allan Fung regarding residential foreclosures.  The Providence Journal has the story and also reports that these measures were necessary after more than 450 residential homes were foreclosed on in the last two years in Cranston.

“As the council, we’re there to represent all the people of Cranston, not just the people who are up on their mortgages, not just the people who are employed,” said Council President John E. Lanni Jr. “I think we’ve done a good thing.”

Lanni, alluding to figures that show the foreclosure crisis is affecting greater numbers of people who have lost their jobs, said the measures might give some people breathing room and allow them to stay in their homes.

The measures require lenders to set up third-party mediation with borrowers before foreclosing on owner-occupied homes. They also require lenders to give renters a written notice before initiating a foreclosure.