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The Fourth Amendment of the United States Constitution provides protection for individuals from unreasonable searches and seizures. The Supreme Court and circuit courts alike have repeatedly analyzed the definition and applicability of the word “seizure,” along with the requisite amount of force needed to constitute a seizure, in a continued effort to safeguard against violation of the Fourth Amendment. In Brooks v. Gaenzle, the Court of Appeals for the Tenth Circuit considered whether shooting a suspect in the back as he successfully fled from pursuit could be construed as a seizure, and therefore represent a violation of the suspect’s constitutional rights. The court held that no Fourth Amendment violation took place, because a clear restraint of freedom of movement must occur in order for a seizure to result.
Keith Brooks and Nick Acevedo broke into a home on October 17, 2005, with the intent to burglarize it. When neighbors called police, El Paso County Sherriff’s Department deputies, Steve Gaenzle and Paul Smith, responded and found the suspects in the home’s garage. Brooks and Acevedo fled into the house, shut the door, and fired one gunshot through the closed door at the officers. Unharmed by the gunshot, the two officers ran from the garage and witnessed Brooks fleeing from the house and climbing a fence. Gaenzle yelled “stop” and fired a shot at Brooks, striking him in the lower back. Wounded, Brooks continued over the fence and fled the scene, but police captured him three days later after another chase. . .
The Employee Retirement Income Security Act (ERISA) established certain rights and protections for employee benefit plan participants. In Edwards v. A.H. Cornell & Son, Inc., the Court of Appeals for the Third Circuit considered whether Section 510—ERISA’s anti-retaliation, or “whistleblower,” provision—protected from termination employees who make unsolicited internal complaints about their employer’s ERISA violations. In a matter of first impression, the court held that Section 510 does not protect employees who voluntarily complain to their superiors about the employer’s ERISA violations outside the context of an “inquiry” or “proceeding,” and, in so doing, split with several of its sister circuits.
In March 2006, Shirley Edwards began working at A.H. Cornell and Son, Inc. (Cornell), a family-owned construction company, as its Director of Human Resources. She participated in Cornell’s group health plan, which fell under ERISA’s purview. After discovering what she believed to be multiple ERISA violations committed by Cornell, Edwards notified her supervisor of the violations and her objections to them. Cornell terminated Edwards shortly thereafter, an action Edwards believed was a direct result of her complaints about the alleged ERISA violations. . .
Article XVII of the Massachusetts Declaration of Rights guarantees a right to keep and bear arms for the common defense. The Supreme Judicial Court (SJC)—Massachusetts’s highest court—has interpreted article XVII as preserving a right to keep and bear arms in connection with service in the militia. Because the SJC’s interpretation of article XVII does not protect an individual right to keep or bear arms, the court has granted the Massachusetts General Court—the state’s legislative body—wide leeway to craft a broad range of regulations governing gun ownership in Massachusetts. In response, the General Court has enacted a comprehensive regulatory scheme for controlling and licensing firearm ownership in the Commonwealth.
Although many citizens have challenged Massachusetts’s gun laws as infringing upon their Second Amendment right to keep and bear arms, the SJC has consistently upheld the laws because, until recently, the Second Amendment did not apply to the states. The United States Supreme Court’s reticence to incorporate the Second Amendment to apply to the states, coupled with the SJC’s interpretation of article XVII, resulted in the routine failure of challenges to the Massachusetts regulatory scheme. After District of Columbia v. Heller and McDonald v. City of Chicago, however, it appears that “the times they are a changin’.” Because of this new definition of the Second Amendment’s scope of protection, several Massachusetts firearm laws may not survive constitutional challenges in the post-McDonald world. This Note will analyze the impact that these opinions will likely have on the Massachusetts gun regulation landscape. The Note examines a small sampling of laws, including safe-storage requirements, discretionary licensing, and discretionary license restrictions, all of which will almost certainly be subject to constitutional challenges in the near future.
Part II.A of this Note will outline the history of firearm regulation in Massachusetts, beginning with the Massachusetts Declaration of Rights. Part II.B will highlight the laws most vulnerable to challenges after McDonald. Although discussed at length in Part II.B, a brief introduction to some of these vulnerable regulations may be useful at this point. Massachusetts has a discretionary licensing system. A licensing authority—usually the chief of police in each municipality—has the authority to exercise his or her discretion and deny an otherwise qualified applicant if the licensing authority believes that the applicant is not “suitable.” A law allowing the discretionary denial of a fundamental right based on undefined notions of suitability, while passing constitutional muster under article XVII, will not likely survive constitutional scrutiny under the Second Amendment following the amendment’s incorporation after McDonald. . . .
Article XIV of the Massachusetts Constitution, like the Fourth Amendment to the United States Constitution, affords individuals the right to be free from unreasonable searches and seizures. Certain searches and seizures, such as an exit order issued to a passenger in a vehicle, may comport with constitutional protections if there is reasonable suspicion of criminal activity. In Commonwealth v. Cruz, a case of first impression, the Massachusetts Supreme Judicial Court (SJC) considered whether the odor of burnt marijuana alone provides reasonable suspicion of criminal activity in light of the recent decriminalization of marijuana under section 32L of chapter 94C of the Massachusetts General Laws (section 32L). The court held that the odor of burnt marijuana alone is no longer sufficient to establish reasonable suspicion of criminal activity and, accordingly, an exit order is impermissible.
On June 24, 2009, in a high-crime area of Boston, two patrolling police officers pulled up beside a vehicle parked in front of a fire hydrant. The defendant, Benjamin Cruz, was seated on the passenger side of the vehicle, and an unidentified person was in the driver’s seat. When the officers approached the vehicle, they could smell a “faint odor” of burnt marijuana. The officers testified that both occupants appeared nervous, and the driver admitted he had smoked marijuana “earlier in the day.” The officers ordered the occupants out of the vehicle and asked Cruz if he had anything in his possession; Cruz replied he had “a little rock for [him]self” in his pocket, which the officers retrieved. . .
Approximately eighty-two years after Justice Brandeis’s dissent in Olmstead v. United States, the United States Court of Appeals for the Ninth Circuit held that the warrantless placement of a global positioning system (GPS) on a criminal suspect’s vehicle did not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures. The court, relying on precedent established by the United States Supreme Court, concluded that Drug Enforcement Agency (DEA) officials did not invade any area in which the appellant possessed a reasonable expectation of privacy. Furthermore, the court upheld the constitutionality of the GPS technology used by the DEA to track the appellant’s movements to and from suspected marijuana “grow houses.”
The Ninth Circuit’s holding in United States v. Pineda-Moreno does not constitute an outlier, but rather the latest in a growing body of federal jurisprudence in which courts have permitted advances in technology to restrict the privacy rights of citizens. When faced with privacy issues stemming from advances in technology over the last decade, federal courts have continued to rely upon precedent established twenty-seven years ago, rather than issuing decisions that recognize the implications created by new technology. Even as technology evolves to become more pervasive, courts continue to rely on an outdated application of the Fourth Amendment, thereby jeopardizing citizens’ privacy rights. . .
Since the emergence of “modern” medicine in America at the turn of the twentieth century, political debate has raged over reforming and expanding access to the healthcare system. While the movement enjoyed limited victories over the years, the Patient Protection and Affordable Care Act of 2010 (PPACA or the Act) represents the first successful attempt at comprehensive healthcare reform. On March 23, 2010, the day President Obama signed the bill into law, the attorneys general of thirteen states filed suit in United States District Court challenging the constitutionality of various provisions of the Act. While many prior failed attempts at healthcare reform have included some version of an “individual mandate,” the PPACA represents the first time Congress enacted a general requirement that all Americans obtain health insurance or pay a penalty. It is this provision—which one author called “health care reform’s most controversial element”—that lies at the heart of the constitutional challenges. . .
The Federal Tort Claims Act (FTCA) affords private parties the opportunity to bring suit against the United States for certain types of tortious harm caused by government employees. An FTCA claim generally accrues at the time of injury, but in circumstances where either the injury or its cause is not immediately apparent, federal courts employ a discovery rule that delays accrual until the plaintiff knows or reasonably should know the factual basis of his claim. In Donahue v. United States, the United States Court of Appeals for the First Circuit considered whether publicity regarding the government’s role in causing the plaintiffs’ injuries was sufficient to start the running of the FTCA claim-accrual period. The court held that the two-year statute of limitations time barred the plaintiffs’ FTCA claims because widespread media coverage should have made them aware of the causal link between the government’s actions and the deaths of their loved ones. . .
Since the so-called conflicts revolution, choice-of-law theory continues to reject the vested rights approach of the First Restatement of Conflicts without fully criticizing the failures of the governmental interest theory in the Second Restatement of Conflicts. At the same time, neither approach adequately examines the question of what constitutes a legitimate resolution to a conflict between states. This Article suggests that the choice between the rights language of the First Restatement and the governmental interest language of the Second Restatement is actually a debate between legal formalism and legal realism. Both choices lead to a legitimacy deficit for theorists and judges who attempt to resolve conflicts. This Article applies liberal and republican political theory to the debate between vested rights and governmental interest, suggesting an approach to resolving conflicts that is grounded in the legitimate exercise of judicial discretion. . .
In August 2010, Deadspin.com, a sports and entertainment website, published leaked financial records for a number of Major League Baseball (MLB) clubs, including the Pittsburgh Pirates, Florida Marlins, Tampa Bay Rays, and Los Angeles Angels of Anaheim. According to these documents, the Pirates, one of the league’s worst teams, raked in an operating profit upwards of $14.4 million in 2008. MLB’s current revenue-sharing system aided in the Pirates’ accumulation of such a robust profit margin. These leaked financial statements served to demonstrate what many baseball commentators have bemoaned for years: the current MLB revenue-sharing system is clearly dysfunctional, as evidenced by the fact that smaller market teams are realizing substantial profits while remaining consistently uncompetitive. Parties on both sides of the collective-bargaining process believe that the Pirates embody the “core problem” with a system that has been implemented over the last two decades, “step by arduous step.” In other words, the revenue-sharing structure that MLB ostensibly created to increase parity has simply produced “a welfare class of teams that can turn significant profits by keeping payroll down.” . . .
Residents of the states bordering the Gulf of Mexico have more in common with their part of the sea than only salt content. Affecting the well-being of Gulf residents, the Deepwater Horizon oil spill was the largest in United States history, and efforts to respond to the disaster were similar in scale. Neither the United States government nor the responsible party was prepared to mitigate the risks present in deep-sea oil exploration. The lack of preparation and size of the spill forced responders to consider and implement untested strategies.
Private actors must consider the potential liability of their actions. Government, shielded by sovereign immunity, does not need to utilize the same calculations. This Note will suggest that government should waive its sovereign immunity during oil spill response actions in light of the controversies surrounding the Macondo Well blowout. This Note argues that United States government response efforts were detrimental to the national welfare and, although a similarly situated private party would be liable for the citizens’ injuries, the United States will not be held accountable. . .