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• CONSTITUTIONAL LAW Child porn charge fails in manipulated images case A man who “morphed” images by putting the heads and necks of juveniles onto adult bodies isn’t guilty of possessing child pornography, the New Hampshire Supreme Court held on Jan. 18. New Hampshire v. Zidel, No. 2006-549. Marshall Zidel worked as a photographer at a summer camp for children under age 15. In July 2005, Zidel gave the camp director three discs of photos to be used for an end-of-summer yearbook; one of the discs included images in which the heads and necks of various children, including two from the camp, were superimposed onto the naked bodies of adult females engaged in sexual acts. Zidel was indicted for possession of child pornography. He sought to dismiss the indictment, calling the images his “personal fantasy” and arguing that prosecuting him pursuant to N.H. Rev. Stat. Ann. � 649-A:3, I(e) would violate his First Amendment rights. The trial court denied the motion and convicted Zidel. The New Hampshire Supreme Court reversed, holding that Zidel’s First Amendment rights were violated. The court noted that the U.S. Supreme Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 242 (2002), had declared Section 2256(8)(B) of the Child Pornography Prevention Act of 1996 unconstitutional. The justices said that the section, which prohibited “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, that is, or appears to be, of a minor engaging in sexually explicit conduct,” was not narrowly tailored to advance “the government’s compelling interest in protecting actual children from sexual abuse.” That a certain kind of speech may encourage unlawful acts is not a sufficient reason for banning it. Congress can’t premise legislation on the desirability of controlling a person’s private thoughts. The state high court said that, when no part of an image is the product of sexual abuse, and a person merely possesses the image, no demonstrable harm results to the child whose face is depicted in the image. Moreover, while distribution of these morphed images might implicate the interests of real children, mere possession does not cause harm to the child. Full text of the decision Maine ordinance, state statute are in accord Neither state law nor the U.S. Constitution prevents a municipality from enacting an ordinance that adversely affects the operations of a scrap metal facility that had operated in the city for decades, the Maine Supreme Judicial Court held on Jan. 15. E. Perry Iron & Metal Co. Inc. v. City of Portland, No. 2008 ME 10. E. Perry Iron & Metal had operated a scrap metal facility in the city of Portland, Maine, for decades and had a city permit pursuant to state law since the 1980s, when the city of Portland enacted the Scrap Metal Recycling Facilities ordinance. Perry sued the city, alleging it had enacted the ordinance and had failed to take action on Perry’s license renewal because it wanted to redevelop the area around the Perry facility. Perry argued that the ordinance was pre-empted by the Maine Hazardous Waste, Septage and Solid Waste Management Act, Maine Rev. Stat. tit. 38, �� 1301-1319-Y (2007), and that, as applied to Perry, the ordinance violated the U.S. Constitution’s equal protection, due process and commerce clauses, and amounted to an unlawful taking. A trial court held for the city. Affirming, the Maine Supreme Judicial Court, the state’s highest court, held that Maine’s solid waste law did not pre-empt the ordinance because the city ordinance did not frustrate the purpose of the state statute. In addition, applying a rational basis test, the court held that the statute as applied to Perry did not violate the U.S. Constitution. The court said, “[T]he . . . ordinance bears a rational relationship to a legitimate government end � controlling a source of pollution within the city � and Perry has not shown by clear and irrefutable evidence that the . . . ordinance is arbitrary or irrationally discriminatory.” • CRIMINAL PRACTICE No retroactivity for law denying vote to convicts A statute that deprives convicts of their voting rights cannot be retroactively applied, the Tennessee Supreme Court ruled on Jan. 18. May v. Carlton, No. E2006-00308-SC-R11-HC. In January 1981, a Tennessee state trial court declared Randy May “infamous” as part of its judgment of conviction for first-degree murder, a declaration that stripped May of his citizenship rights, including the right to vote. At the time of May’s offense, murder and assault with intent to commit murder were not listed as infamous crimes under Tenn. Code Ann. � 40-2712 (1980). However, since May 1981 (four months after May’s convictions), all felonies, regardless of severity, qualified as “infamous crimes.” Tenn. Code Ann. � 40-20-112 (1991). May filed a habeas petition, claiming the trial court lacked statutory authority to declare him infamous. The trial court dismissed the petition. An intermediate appellate court affirmed, ruling that the statute that declared first-degree murder an infamous crime, though enacted after May’s conviction, could be applied retroactively. The Tennessee Supreme Court reversed. While deprivation of the right to vote doesn’t fall under the definition of “imprisonment,” the illegal component of the judgment � the declaration of infamy � qualifies as a restraint on May’s liberty and his freedom to act. “Because the right to vote is fundamental to the concept of liberty in this state,” the court said, “an erroneous label of infamy in a judgment of conviction warrants remedy and should be declared null and void.” Refusing perjury oath, defendant can’t testify A court may refuse to allow a criminal defendant to testify if the defendant refuses to take an oath subjecting his testimony to the penalty of perjury, even if he is representing himself, the Missouri Supreme Court held on Jan. 15. Missouri v. Ward, No. SC88409. William Ward was convicted of drug charges after a Missouri state court had refused to allow him to testify at his trial because he refused to take any form of oath pledging he would tell the truth subject to penalty of perjury. Ward had represented himself at his trial, although he had counsel during the penalty phase. The Missouri Supreme Court affirmed the conviction and sentence. The court said that, although no special language is required in administering an oath, the important feature of the oath is the quickening of the witness’s conscience and the liability it creates for perjury. Here, the judge had made many attempts to find an acceptable form of oath that Ward would take so he could testify, but Ward had rejected all of them. • EVIDENCE Warrantless search for illegal aliens not justified A federal trial judge wrongly ruled that exigent circumstances permitted U.S. Border Patrol agents to conduct a warrantless search of a home in which illegal immigrants slept, the 5th U.S. Circuit Court of Appeals held on Jan. 15. U.S. v. Troop, No. 06-40922. In 2005, Border Patrol agents were tracking five individuals believed to be illegal aliens heading toward Bruni, Texas. The agents were members of the Border Patrol’s Special Response Team and had received training in tracking and rescuing immigrants threatened by dehydration or exposure. The agents followed footprints to a house, knocked on the door and announced their presence. There was no response. With the aid of a flashlight, they saw two men lying on a bed asleep. Agents climbed through the window and arrested four illegal immigrant men, none of whom needed medical assistance. The homeowner, Jerry Ernest Troop, was arrested and charged with conspiring to transport an alien in violation of 8 U.S.C. 1324. Troop filed a motion to suppress, arguing that the agents’ warrantless entry and search violated the Fourth Amendment to the U.S. Constitution. At a hearing, an agent testified that he believed the immigrants may have been in physical distress. The judge denied the suppression motion, holding that the possibility that they were in need of medical attention created exigent circumstances sufficient to justify warrantless entry. Troop was found guilty and sentenced to 20 months in prison. The 5th Circuit reversed the suppression ruling, finding that the evidence didn’t support a finding of exigent circumstances. Absent clear evidence of medical distress “it was unreasonable for the agents to conclude that the suspected aliens likely needed immediate aid based solely on the fact that the aliens showed fatigue,” the court held. • IMMIGRATION LAW No persecution eligibility when applicant aided it The U.S. Board of Immigration Appeals correctly denied asylum to a guard who worked in a facility in China that performed forced abortions, the 11th U.S. Circuit Court of Appeals held on Jan. 17 in a first-impression decision. Chen v. U.S. attorney general, No. 07-11562. In 2003, Su Qing Chen worked voluntarily for six weeks at a Chinese government facility in Changle City, Fujian province, where she guarded pregnant women locked in rooms until they received forced abortions. Chen was provided with a rod to control the women, which, however, she never used. Chen was fired after she released a woman without authorization. In 2005, she came to the United States, and sought asylum and withholding of removal, claiming she would be persecuted if she returned to China. An immigration judge denied her application, finding that getting fired by family planning officials did not constitute persecution. Also, because Chen herself had assisted in persecution, she was ineligible for relief. The Board of Immigration Appeals affirmed. The 11th Circuit affirmed. Under the Immigration and Nationality Act, the U.S. government may grant asylum to a refugee unable or unwilling to return to his or her country of origin because of past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group or political opinion. Persecution for resisting a coercive population control program can constitute persecution based on political opinion. However, a provision of the law, 8 U.S.C. 1158(b)(2)(A)(I), prohibits asylum or withholding of removal to a petitioner who “ordered, incited, assisted, or otherwise participated” in persecuting others. The court held that the standard for determining whether an asylum applicant is ineligible for relief for assisting in persecution requires the conduct to be active, direct and integral to the underlying persecution. “Chen’s conduct � voluntarily overseeing the confinement of women scheduled for forced abortions � clearly was direct and integral to the ultimate acts of persecution.” • TORTS Qualified immunity for high-speed chase police Police officers involved in any kind of high-speed chase are entitled to qualified immunity under 42 U.S.C. 1983 unless they acted with a deliberate intent to harm, the 9th U.S. Circuit Court of Appeals held on Jan. 15. Bingue v. Prunchak, No. 05-16388. Eli Prunchak, a Las Vegas police officer, heard reports of a high-speed chase on his police radio. Joining the chase and � while driving through a curve at approximately 100 miles per hour � he “sideswiped” a vehicle operated by Edwige and Marjorie Bingue. Pursuant to 42 U.S.C. 1983, the Bingues sued Prunchak and the Las Vegas Metropolitan Police Department in a Nevada federal court, alleging violations of the Fifth and 14th amendments to the U.S. Constitution. Prunchak moved for partial judgment on the pleadings based on qualified immunity. The court denied the motion. Reversing, the 9th Circuit expanded its holding in Onossian v. Block, 175 F.3d 1169, 1171 (9th Cir. 1999), which provided qualified immunity to police officers involved in emergency high-speed chases. The court held that police officers who injured bystanders during all high-speed chases were entitled to qualified immunity unless they acted with deliberate intent to harm. The court said, “Trying to sort high-speed chases into the neat categories of ‘emergency’ and ‘non-emergency’ situations is much like trying to bake a cake and having to distinguish between salt and sugar by sight alone: it is a nearly impossible task that has a high likelihood of producing an unpleasant result.” S.C. doesn’t recognize tort of medical battery There is no tort of medical battery in South Carolina, the South Carolina Supreme Court ruled on Jan. 14. Linog v. Yampolsky, No. 26419. Nitus Linog underwent what was to be a four-hour dental procedure under full anesthesia with Dr. Mark Yampolsky. Linog never went all the way under the anesthesia, however, turning her head and mumbling during the procedure. After 3 1/2 hours, and with only one-quarter of the procedure completed, Yampolsky stopped the surgery. Linog sued Yampolsky, saying she had suffered a herniated disc during the procedure. She then added a cause of action for medical battery, claiming that she had revoked her consent to the procedure while under anesthesia. The trial court found no South Carolina precedent recognizing medical battery based on withdrawal of consent, but ruled that, even if state law did permit such a cause of action, Liong had failed to provide any expert testimony. The South Carolina Supreme Court affirmed. In light of the availability of a medical malpractice claim or a civil battery claim to any patient injured by a physician, the court ruled that medical battery would constitute an “unnecessary and superfluous cause of action.” The court also held that an injury occasioned by a physician’s touch after a patient had revoked consent should properly be pursued as a medical malpractice claim, and a patient must show through expert testimony that the physician deviated from the relevant standard of care in failing to obtain proper consent.

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