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In criminal cases, restitution for victims is typically limited to the losses that the defendant caused in the commission of the crime.1 Title 18, section 2259 of the United States Code requires courts to order restitution for victims of sexual crimes against children in “the full amount of the victim’s losses.” In United States v. Kearney, a case of first impression, the United States Court of Appeals for the First Circuit considered whether a person depicted in child pornography was entitled to restitution under § 2259 from someone who had criminally possessed, distributed, and transported that pornography. The First Circuit concluded that the victim’s injuries were proximately caused by the defendant’s use of the pornography, and upheld the district court’s restitution order. . .
A criminal defendant’s motion to suppress often implicates the Fourth Amendment’s protections against “unreasonable searches and seizures.” Nevertheless, the extent to which government surveillance activities associated with wireless communication and location tracking technology fall within the ambit of the Fourth Amendment is unclear. In United States v. Graham, the United States District Court for the District of Maryland considered whether defendants’ Fourth Amendment rights were violated when the government acquired historical cell site location information (CSLI) without a search warrant. The court found that the defendants’ Fourth Amendment rights were not violated because they did not have a legitimate expectation of privacy—a requisite condition precedent to an unconstitutional search determination—in the CSLI at issue. . .
The First Amendment protects the freedom of speech and press—liberties that include the right to disseminate certain information concerning governmental activities, including police work. A police officer may defend against a claim of violating a citizen’s constitutionally protected right to gather and disseminate information by invoking the doctrine of qualified immunity. Qualified immunity requires the government official to prove the constitutional right allegedly infringed upon was not clearly established at the time of the challenged conduct. In Glik v. Cunniffe, the Court of Appeals for the First Circuit addressed the existence of a constitutional right to film officers discharging their duty in public and assessed whether that right was clearly established at the time Glik did so. The court held that the First Circuit case law clearly establishes a First Amendment right to record public police activity, and therefore the police officers could not invoke the qualified-immunity doctrine.
As he passed the Boston Common—the oldest public park in the country—on October 1, 2007, Simon Glik witnessed three police officers arresting an individual. After hearing one bystander say to the officers, “You are hurting him, stop,” Glik began recording the arrest with his cell phone camera. After the officers handcuffed the suspect, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik responded: “I am recording this. I saw you punch him.” After the officers confirmed with Glik that his recording captured sound, the officers arrested Glik for unlawful audio recording in violation of Massachusetts’s wiretap statute. While detained at the South Boston police station, officers confiscated Glik’s cell phone and a computer flash drive as evidence.
The District Attorney charged Glik with violating the wiretap statute, disturbing the peace, and aiding the escape of a prisoner. After the Commonwealth voluntarily dismissed the charge of aiding in the escape of a prisoner, the Boston Municipal Court, in February 2008, granted Glik’s motion to dismiss the final two charges: disturbing the peace, and violating the wiretap statute. The judge found that Glik’s exercise of his First Amendment right to film police did not disturb the peace, noting the officers’ dislike of Glik’s recording did not make this constitutionally protected activity unlawful. The judge also dismissed the wiretap charge for lack of probable cause because the statute requires a secret recording and the officers admitted Glik had recorded openly and in plain view. . .
Although the First Amendment protects the right of free speech, the Supreme Court of the United States has held that certain types of speech made by students on campus may be restricted in public schools. The Court has not addressed, however, student speech originating off campus on the internet, requiring the circuit courts to develop and apply methods of dealing with this type of speech, including the Second Circuit’s approach, commonly referred to as the Tinker test. In Layshock ex rel. Layshock v. Hermitage School District, the Court of Appeals for the Third Circuit considered whether the Hermitage School District could discipline a student, Justin Layshock, for creating an offensive profile on the social-networking website, MySpace, while off campus. The court held that the school district could not regulate Layshock’s speech because not one of the limited circumstances permitting regulation—as prescribed by the Supreme Court—was present.
In December 2005, Layshock, a Hickory High School student, created a profile that mocked his Principal, Eric Trosch, on MySpace. Layshock created this profile using his grandmother’s computer, at her house, during nonschool hours. Layshock granted access to fellow students, and, not surprisingly, news of the profile “spread like wildfire” spawning at least three copycat profiles. Layshock did access the profile he created twice at school, but school officials took action based on the belief that Layshock’s speech was entirely off campus.
On December 21, school officials learned that Layshock may have created one of the false profiles and decided to call Layshock and his mother to a meeting with the Superintendent. At that meeting, Layshock admitted to creating the profile and, without any prompting, walked to Principal Trosch’s office to apologize. School officials took no disciplinary action at the meeting; however, in January 2006, school officials held a disciplinary hearing concluding Layshock had violated the school’s discipline code and instituted various punishments, including a ten-day suspension and placement in an alternative education program.
On January 27, 2006, the Layshocks filed a three-count complaint alleging that the school district had violated Layshock’s First Amendment right to free speech. The district court granted summary judgment in favor of Layshock because the school district failed to demonstrate a sufficient nexus between the profile Layshock made and a substantial disruption at the school. A three judge panel from the Third Circuit affirmed on appeal; however, the Third Circuit vacated this decision and that of a factually similar, yet differently decided, case, J.S. ex rel Snyder v Blue Mountain School District, opting to rehear both en banc to resolve the apparent intracircuit split. After the rehearings, the court reversed J.S. and reaffirmed the earlier holding in Layshock, that the regulation of Layshock’s speech violated the First Amendment. . .
On February 9, 2012, the United States Nuclear Regulatory Commission (NRC) brought an end to the atomic power industry’s thirty-four-year construction hiatus when it green-lighted the licensing of two state-of-the-art nuclear reactors in eastern Georgia. In In re Southern Nuclear Operating Co. [hereinafter Vogtle 3 & 4], the NRC considered whether Southern Nuclear Operating Company’s (SNC) application for two combined construction and operating licenses satisfied the applicable licensing standards set forth in the Atomic Energy Act of 1954 (AEA), the National Environmental Policy Act of 1969 (NEPA), and the agency’s own rules and regulations. By a 4-1 margin, with Chairman Gregory Jaczko as the lone dissenter, the Commission concluded that SNC fulfilled all statutory and regulatory prerequisites for full licensure and authorized the construction and operation of the third and fourth units (Units 3 and 4) at the company’s existing Vogtle Electric Generating Plant site.
Following two years of preliminary proceedings, on March 31, 2008, SNC formally submitted its license application for Units 3 and 4. In accordance with statutory and regulatory guidelines, SNC’s application included, among other things, general information relating to the proposed plant design, as well as the company’s financial viability and antitrust status. The most voluminous and highly scrutinized portion of the company’s application, however, was its final safety analysis report (FSAR)—an 828-page document describing at length the design basis, security plan, organizational structure, and all other radiological, environmental, and technical aspects of the proposed units. After accepting it for docketing, the NRC Staff (Staff) commenced an exhaustive review of SNC’s application, including a comprehensive FSAR evaluation and environmental-impacts analysis. The Staff’s efforts culminated in the August 2011 publication of its Final Safety Evaluation Report for Combined Licenses for Vogtle Electric Generating Plant, Units 3 and 4—a highly detailed, safetyoriented assessment communicating to the public and five NRC Commissioners (Commission) the Staff’s official approval of SNC’s license application.
Throughout the entire three-year application review and beyond, SNC and the Staff faced multiple legal challenges to both the sufficiency and content of the application and the adequacy of the Staff’s final safety evaluation. On November 17, 2008, in response to publication in the Federal Register of SNC’s pending application review, five nonprofit organizations (Joint Intervenors) petitioned to intervene as parties seeking to contest the combined license (COL) application for Units 3 and 4. In granting the petition, the Commission established a panel of the Atomic Safety and Licensing Board (Board), giving it jurisdiction to preside over the now-contested portion of the application proceeding. Joint Intervenors immediately filed three contentions alleging that the FSAR for Units 3 and 4 omitted critical safety information. Over the ensuing eighteen months, the Board heard oral arguments, allowed limited discovery, accepted written submissions, and entertained two additional safety-related contentions. After dismissing two of the three original contentions for failure to state a claim, on May 19, 2010, the Board granted SNC’s motion for summary disposition and dismissed as overly broad the Joint Intervenors’ sole remaining contention. . .
The Supreme Court of the United States has established that general personal jurisdiction allows a forum to exercise authority over a defendant to adjudicate claims that do not arise from the defendant’s contacts within the forum state. Since the advent of the modern corporation, plaintiffs have attempted to establish jurisdiction over a foreign corporation because of its subsidiary’s contacts with a forum state. In Bauman v. DaimlerChrysler Corp., the Court of Appeals for the Ninth Circuit considered whether a state may exercise general jurisdiction over a foreign corporation because it has a subsidiary with extensive contacts in the United States. The Ninth Circuit held that a subsidiary is a foreign corporation’s agent for jurisdictional purposes if the subsidiary’s services are sufficiently important to the parent corporation and the parent has the right to substantially control the subsidiary’s activities.
In 2004, twenty-three persons (Plaintiffs) filed a lawsuit against DaimlerChrysler Aktiengesellschaft (DCAG) in the United States District Court for the Northern District of California. Plaintiffs alleged that DCAG’s wholly owned subsidiary, Mercedes-Benz Argentina, collaborated with the Argentinean government to kidnap, torture, or kill the Plaintiffs or their relatives during Argentina’s “Dirty War.” In response to the Plaintiffs’ complaint, DCAG moved to dismiss for insufficient service of process and lack of personal jurisdiction. . .
When analyzing a claim under 42 U.S.C § 1983 that the government withheld exculpatory evidence from a criminal defendant, courts typically use the Fifth or Fourteenth Amendment’s due process standard as articulated in the iconic 1963 case of Brady v. Maryland. In Smith v. Almada, the Court of Appeals for the Ninth Circuit considered whether a police officer’s failure to disclose exculpatory evidence violated the plaintiff’s due process right to a fair trial—thereby exposing the officer to civil liability under Brady—where the plaintiff had spent over seventeen months in jail but had never been convicted. The Ninth Circuit initially answered that question very broadly, holding that relief under Brady is unavailable entirely in the absence of a conviction. On plaintiff’s motion for rehearing, however, the court superseded its original decision, transcribing the former majority’s opinion into a special concurrence, which, because of the court’s maneuverings, effectively remains as Smith’s de facto holding. . .
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 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. . .