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ATTORNEY FEES No fees to prevailing party seeking too much A litigant loses all rights to attorney fees if it requests an unreasonably excessive amount, the 1st U.S. Circuit Court of Appeals held on March 23. First State Ins. Group v. Nationwide Mut. Ins. Co., No. 04-2236. Nationwide Mutual Insurance Co. and another insurer prevailed in bringing emergency motions against First State Insurance Group, enjoining First State from pursuing its requests in a number of arbitrations to have those disputes consolidated. The court ordered that First State pay the other two insurers’ costs and attorney fees in bringing the emergency motions “in a reasonable amount to be determined by the court on the parties’ submissions.” Nationwide sought $89,012.82, while the other insurer sought $46,312.47, which a Massachusetts federal court reduced to $35,101. Viewing Nationwide’s request as grossly excessive for the amount of work involved, the court declined to make any award to Nationwide and denied its motion for reconsideration, which sought a somewhat reduced fee. The 1st Circuit affirmed. Noting that Nationwide’s request included about $60,000 for the creation of about 34 pages of briefs and attendance at a short hearing, the circuit court said that it is within a court’s discretion to deny fees entirely when the amount requested is unreasonably excessive. Full text of the decision BANKRUPTCY Deposit for improving home is exempt Kansas’ homestead exemption applies to a debtor’s deposit on home improvements, the 10th U.S. Circuit Court of Appeals held on March 25. Jenkins v. Hodes, No. 03-3309. Creditors objected to Kansas homeowners’ claim of an exemption in bankruptcy for their contractually binding $225,000 deposit with a builder for a 1,056-square-foot enlargement of their existing home. The bankruptcy court overruled those objections. A Kansas federal court affirmed. The 10th Circuit affirmed, concluding that under the doctrine of equitable conversion, a Kansas debtor who enters into a valid contract with a builder prior to the filing of an involuntary bankruptcy petition against the debtor, secured by a deposit placed with the builder prior to the petition being filed, may claim under the Kansas homestead exemption any amount of the deposit actually spent on improvements to the homestead. Because Kansas has opted out of the federal bankruptcy exemption scheme, the debtor may only claim exemptions available under Kansas law, which exempts a homestead “together with all the improvements” on it from “forced sale under any process of law.” Full text of the decision CIVIL RIGHTS Transsexual cop was victim of discrimination The Cincinnati Police Department discriminated against a transsexual police officer when it demoted him from sergeant following a post-promotion probationary period, the 6th U.S. Circuit Court of Appeals ruled on March 22. Barnes v. City of Cincinnati, nos. 03-4110 and 03-3320. Phillip Barnes (now Philecia) began working for the Cincinnati Police Department in 1981. When he was promoted to sergeant in 1998, Barnes was in the process of becoming a transsexual. Though Barnes lived as a man at work, he came into work wearing makeup and manicured nails. Barnes failed a rigorous post-promotion probationary period and was demoted to lieutenant. Barnes sued the department for sex discrimination. Rejecting the city’s defense that Barnes would have failed anyway, he was awarded more than $800,000 in damages and attorney fees. The 6th Circuit affirmed, finding record evidence to support Barnes’ assertion that the department discriminated against him or demoted him because of his failure to live up to gender stereotypes. Barnes was told that he did not look sufficiently masculine or exhibit “command presence”; his ratings, though low, surpassed at least one other officer who was promoted to sergeant; and he was placed in a more-intense training program than the department had ever used. Full text of the decision CONSTITUTIONAL LAW Anonymous tip doesn’t suffice for ‘Terry’ stop An anonymous tip-without any evidence to support its veracity-was insufficient evidence for police to stop a suspect, the 4th U.S. Circuit Court of Appeals held on March 25. United States v. Brown, No. 04-04353. Responding to an anonymous tip about a man with a gun, two Newport News, Va., police officers stopped Everett Brown because Brown matched the description of the suspect. While talking to Brown, the officers smelled alcohol, and placed him under arrest. They also found a gun. Brown was charged with possession of a firearm by a convicted felon, but a district court granted Brown’s motion to suppress evidence of the gun and his statements, holding that the police had failed to demonstrate a reasonable articulable suspicion in stopping Brown, thus making it illegal under the Fourth Amendment. The district court argued that a reasonable person in Brown’s position during his initial encounter with the police would not have considered himself free to disregard the police and go about his business. The court held that this encounter was a Terry stop-after Terry v. Ohio, 392 U.S. 1 (1968)-in being nonconsensual. The officers thus needed reasonable, articulable suspicion that Brown was armed and dangerous to justify the stop. Affirming, the 4th Circuit held that the tip alone was not sufficient reason to stop Brown. The court said, “Here, Officers Lewis and Petrosky initially approached Brown in response to an anonymous telephone tip that Brown was carrying a firearm. An anonymous telephone tip that alleges illegal possession of a firearm but that merely identifies a suspect and his location does not itself provide reasonable suspicion for a Terry stop. To justify a Terry stop, such a tip must contain sufficient ‘indicia of reliability’ to enable officers to evaluate the veracity of the tip before stopping whomever the tip identifies.” Full text of the decision CRIMINAL PRACTICE Forced collection of DNA is constitutional The government interest in maintaining a DNA database outweighs the minimal intrusion into a criminal offender’s expectation of privacy when he or she is ordered to provide a sample, the 3d U.S. Circuit Court of Appeals ruled on March 21. United States v. Sczubelek, No. 03-2173. After serving a prison term for bank robbery, Paul Sczubelek was placed on supervised release. About a year later, pursuant to the DNA Analysis Backlog Elimination Act, which was passed shortly after his release from prison, Sczubelek’s probation officer directed him to give a DNA sample. Following his refusal, the Delaware district court ordered him to do so. Sczubelek appealed, arguing that forced collection of DNA was an unconstitutional violation of the Fourth Amendment. A divided 3d Circuit affirmed, ruling that the collection of the sample was a minimal intrusion, and that Sczubelek, as an individual on supervised release, had a reduced right of privacy. Moreover, there is a significant government interest in creating a DNA database because it promotes increased accuracy in the investigation and prosecution of criminal cases, and also provides a resource to prisoners seeking to exculpate themselves. The dissent argued that forced collection of DNA was a Fourth Amendment violation. Full text of the decision GOVERNMENT Post-9/11 NYC Fire Dept. records must be released With limited exceptions, dispatch calls, oral histories and calls to the New York City Fire Department (NYFD) on and immediately after Sept. 11, 2001, must be released as public records under the New York Freedom of Information Law, the New York Court of Appeals ruled on March 24. In the Matter of The New York Times Co. v. City of New York Fire Dept., No. 13. Four months after the terrorist attacks on the World Trade Center, a New York Times reporter requested records from the NYFD for certain tapes and transcripts. Eight families of WTC victims intervened on the newspaper’s side, all seeking access to dispatch calls within the NYFD, calls made to the NYFD through the 911 systems, and transcripts of interviews the NYFD carried out with its members. The trial court allowed access to 911 calls made by public employees and the men whose survivors joined the suit. The dispatch calls and the “oral history” interviews were to be redacted to delete personal opinions and recommendations of department employees. The intermediate appellate court affirmed, and ordered the disclosure of personal expressions and feelings contained in the oral histories. A divided New York high court affirmed, but modified the ruling in two ways. First, it ordered that the entire oral histories had to be disclosed, other than specifically identified portions that can be shown to be likely to cause serious pain or embarrassment. Second, the U.S. Department of Justice was ordered to make a showing that six discrete passages would interfere with the case against Zacarias Moussaoui, as the NYFD argued. The dissent would reverse the appellate court’s rulings so that the 911 calls be made public in their entirety. Full text of the decision Failure to protect murder witness is not actionable A state’s failure to protect a murder witness who was threatened with death if she testified, and was indeed killed, did not give rise to a constitutional suit by her mother, the 1st U.S. Circuit Court of Appeals held on March 22. Rivera v. State of R.I., No. 04-1568. Fifteen-year-old Jennifer Rivera told the police she saw Charles Pona fleeing from the scene of a murder in Providence, R.I. After Pona was arrested, Jennifer was continually threatened with death if she testified against him. She told the Providence Police Department, which repeatedly assured her she would be safe. She testified before the grand jury, received more death threats and again reported them to the police. On Pona’s orders, Jennifer was shot to death. He was convicted of her murder. Jennifer’s mother brought a suit alleging that the police violated Jennifer’s substantive due process right to life by failing to fulfill their promise to protect her from the danger Pona posed. The Rhode Island federal court ruled for the defendants. The 1st Circuit affirmed, noting that the Supreme Court has said only in very rare situations is a state’s failure to protect someone a constitutional violation, even if the state is grossly negligent. Based on the complained-of facts here, the 1st Circuit found “this is not one of those rare cases.” Rivera did not show the necessary duty. At least three circuit courts have recognized a constitutional violation when the state fails to protect against private violence under a state-created-danger theory. One has rejected the theory. The 1st Circuit says, under that theory, the state’s actions must shock the court’s conscience. Here, they did not. Full text of the decision IMMIGRATION LAW Blood tie not needed to confer U.S. citizenship A child born to two Mexican nationals was the son of the Mexican national’s U.S.-citizen wife because the U.S. citizen had, from the time of the child’s birth, taken care of the child as her own, and because a blood relationship was not necessary to legitimate a child born during a marriage, the 9th U.S. Circuit Court of Appeals held on March 23. Solis-Espinoza v. Gonzales, No. 03-70625. Eduardo Solis-Espinoza was born in Tijuana, Mexico, in 1967 to two Mexican nationals, but his mother abandoned him. He was raised in the United States by his biological father, Refugio Solis, a Mexican citizen and lawful permanent resident of the United States, and his father’s wife, Stella Cruz-Dominguez, a natural-born United States citizen. Solis and Cruz-Dominguez were married at the time of his birth. Cruz-Dominguez accepted him as her own, even having herself listed on his birth certificate. After Solis-Espinoza was convicted of felony sale of methamphetamine, the United States began removal proceedings. Solis-Espinoza claimed derivative U.S. citizenship through his father’s wife, and an immigration judge (IJ) agreed. However, the United States appealed to the Board of Immigration Appeals, which reversed. On remand, the IJ ordered Solis-Espinoza removed and the BIA affirmed. Reversing, the 9th Circuit held that Solis-Espinoza was not subject to removal because he was a U.S. citizen based on his relationship to his father’s wife. The court said, “There appears to be no dispute that petitioner was acknowledged by Solis and was accepted into and raised as a member of the Solis family, with the consent of Cruz-Dominguez. Under the law of California at the relevant time, therefore, Solis-Espinoza was ‘for all purposes legitimate’ from the time of his birth. Since he was not ‘born out of wedlock,’ under our decision in Scales the blood relationship requirement of � 1409 does not apply to him and he is entitled to be recognized as a citizen under � 1401.” Full text of the decision

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