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Opinions

Tuesday, November 1, 2022

[PUBLISHED] [Benton, Author, with Loken and Arnold, Circuit Judges] Criminal case - Sentencing. The district court was familiar with the record, including defendant's sentencing letter, and the court's level of familiarity with the record did not constitute plain error; the revocation sentence imposed was not substantively unreasonable.

Author:
Judge Duane Benton
Dissent:
Tuesday, November 1, 2022

[UNPUBLISHED] [Per Curiam - Before Gruender, Melloy, and Erickson, Circuit Judges] Criminal case - Sentencing. The sentence imposed upon the revocation of defendant's supervised release was not substantively unreasonable; in reaching its sentencing determination, the court may consider new law violations it finds by a preponderance of the evidence.

Author:
Dissent:
Tuesday, November 1, 2022

[PUBLISHED] [Grasz, Author, with Stras and Kobes, Circuit Judges] Civil case - Election law. In a suit challenging the provisions in Senate Bill 180 governing paid petition circulators in South Dakota and specifying penalties for failure to comply with those requirements, the district court did not err in preliminarily enjoining South Dakota officials from enforcing the requirements; plaintiffs had standing to bring the action as the record at this point in the proceedings showed that it was faced with a concrete, particularized, and actual injury from Senate Bill 180 because the act directly impacted plaintiff's ability to reach its audience and gather sufficient signatures to place initiatives on the ballot; the statute fails under the exacting scrutiny standard because the state has not shown that paid petition circulators posed a greater risk of fraud than volunteer circulators; further the process for making the information paid circulators must provide public is likely to subject them to harassment and is intrusive and burdensome; finally, the statute is not narrowly tailored to advance the state's interest in election integrity; as a result, plaintiff showed they were likely to succeed on the merits of their claim that the statute is facially invalid as overbroad and violative of the First Amendment; the other preliminary injunction factors favor the issuance of injunctive relief; court would not second guess the scope of the district court's injunction, and the district court can determine in further proceedings whether some portions of Senate Bill 180 can survive scrutiny and whether they are severable.

Author:
Judge L. Steven Grasz
Dissent:
Tuesday, November 1, 2022

[PUBLISHED] [Melloy, Author, with Gruender and Erickson, Circuit Judges] Civil case - Civil rights. In action alleging St. Louis police officers violated plaintiff's civil rights when they fired tear gas in her direction during the protests surrounding the acquittal of St. Louis police officer Jason Stockley, the district court did not err in denying the motion for summary judgment based on qualified immunity filed by four officers who allegedly tear-gassed plaintiff from an armored vehicle, as plaintiff's allegation that she was not committing any crime when she was tear-gassed was enough to plausibly allege the tear-gassing was in retaliation for her First Amendment activities; the district court erred in denying eight other officers' motion for summary judgment based on qualified immunity as the complaint did not plausibly allege they were personally involved in the alleged violation of clearly established constitutional rights; with respect to plaintiff's conspiracy claims, it was not clearly established at the time of the incident that officers could conspire with one another to violate a First Amendment right, and the district court erred by not dismissing this claim; the district court did not err in denying defendants official immunity on plaintiff's state law claims.

Author:
Judge Michael J. Melloy
Dissent:
Tuesday, November 1, 2022

[UNPUBLISHED] [Per Curiam - Before Gruender, Melloy, and Erickson, Circuit Judges] Criminal case - Sentencing. The district court did not clearly err in finding possession of cocaine by a preponderance of the evidence; the sentence imposed upon the revocation of defendant's supervised release was not substantively unreasonable.

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Dissent:
Tuesday, November 1, 2022

[PUBLISHED] [Erickson, Author, with Shepherd and Stras, Circuit Judges] Civil case - Civil rights. In this challenge to St. Louis County Missouri's system allowing police officers to issue electronic "wanted" notices authorizing any other officer to seize a person and take him into custody for questioning without any review by a neutral magistrate before issuance, the district court granted the defendants' motion for summary judgment and denied the plaintiffs' motion for class certification. Plaintiffs, who were arrested on wanteds, appeal. Held: Because circumstances may exist under which the Wanteds System is constitutional, plaintiff's facial challenge to the system fails; defendant officers Partin and Walsh were entitled to qualified immunity for plaintiff's arrest because there was doubt that the officers' actions violated clearly established law; however, with respect to the actions of defendant Clements, even a minimal investigation on her part would have shown that any probable cause for the arrest had vanished, and she was not entitled to qualified immunity; defendant Walsh was entitled to qualified immunity for the arrest of plaintiff Furlow because there was arguable probable cause he had committed a domestic assault; the evidence does not show a persistent pattern of unconstitutional arrests so pervasive that it can be said to constitute a custom or usage with the force of law, and the district court did not err in dismissing the plaintiffs' municipal liability claim; the district court did not err in dismissing plaintiffs' substantive due process claim where plaintiffs stated a Fourth Amendment claim; on remand, the district court can reconsider whether class certification is appropriate in light of this decision. Judge Shepherd, concurring in part and dissenting in part. Judge Stras, concurring in part and concurring in the judgment.

Author:
Judge Ralph R. Erickson
Dissent:
Tuesday, November 1, 2022

[UNPUBLISHED] [Per Curiam - Before Erickson, Grasz, and Stras, Circuit Judges] Prisoner case - Prisoner civil rights. The district court did not err in granting defendants' motion for summary judgment for failure to exhaust administrative remedies.

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Dissent:
Tuesday, November 1, 2022

[PUBLISHED] [Shepherd, Author, with Gruender and Erickson, Circuit Judges] Petition for Review - Immigration. The BIA found, in denying petitioners' motion to reconsider, that they had not persuasively shown any error of law or fact in the BIA's prior decision to establish that the Salvadoran government would be unable or unwilling to control the individuals they fear; in their petition for review, the petitioners do not meaningfully argue that the BIA erred in reaching his conclusion and have waived any challenge to the finding, as a result they cannot show they suffered persecution and their claims for relief necessarily fail.

Author:
Judge Bobby E. Shepherd
Dissent:
Tuesday, November 1, 2022

[PUBLISHED] [Shepherd, Author, with Gruender and Erickson, Circuit Judges] Civil case - Social Security. The ALJ did not improperly evaluate the medical evidence in reaching the decision to deny benefits as the ALJ adequately evaluated the persuasiveness of the doctor's opinion and had sufficient grounds to conclude the opinion was unpersuasive; the ALJ also properly evaluated the persuasiveness of a second doctor's opinion; substantial evidence supported the ALJ's residual functional capacity assessment.

Author:
Judge Bobby E. Shepherd
Dissent:
Monday, October 31, 2022

[PUBLISHED] [Arnold, Author, with Loken and Kobes, Circuit Judges] Civil case - Civil rights. Police department guidelines and policies concerning use of a PIT maneuver did not create rights that give rise to a Section 1983 action, and an officer's knowing violation of the guidelines and policies does not transform his actions into unconstitutional behavior; moreover, the Supreme Court has already deemed materially identical behavior constitutional - see Scott v. Harris, 550 U.S. 372, 374-75 (2007); the district court did not err in finding plaintiff had not plausibly pleaded that defendant used excessive force or violated plaintiff's substantive-due-process rights; in the absence of a constitutional violation, plaintiff's claims against the officer's supervisor in his official capacity and against the city necessarily fail as well.

Author:
Judge Morris S. Arnold
Dissent:

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