Pa. Cases

New Statute Prohibiting Text-Based Communications

noreply@blogger.com (Larkin) — Tue, 13 Mar 2012 12:16:00 +0000

On March 8, 2012, Pennsylvania's new anti-texting legislation went into effect. 75 Pa.C.S. § 3316. I've been getting a fair number of questions about the new law—the full text of which is included after the jump—so I thought I'd put down a few thoughts.

First off, the bill does exactly what it sounds like: it prohibits texting. That doesn't include fiddling with your radio, dialing a phone number to make a call, or using your GPS.

If you get stopped, the police aren't permitted to take your phone under this statute, although they are not prohibited from doing so for some other appropriate purpose. The ticket is for $50 and carries no points for non-commercial drivers, nor will it appear on your driving record. There are no enhanced penalties for second or subsequent offenses.

One of the most interesting facets of this statute is that it expressly " supersedes and preempts all ordinances of any municipality with regard to the use of an interactive wireless communications device by the driver of a motor vehicle." That strongly suggests that the Philadelphia ban on voice calls while driving is no longer good law.

Another implication of the statute is that it gives rise to greater civil liability for drivers by exposing them to suit under a theory of negligence per se. Consider, for instance, the relative liability of a driver who stops suddenly while texting, and is then struck from behind. Under prior Pennsylvania law, fault for the rear-end accident is (nearly) always placed on the rear vehicle, on the theory that all drivers should be prepared to stop when necessary. With the aid of the new texting statute, the rear vehicle could argue that the other driver was negligent per se by breaking the new texting law.

The theory hasn't been tested yet—after all, the law is just a few days old—but it'd be worth requesting texting records during discovery in auto-accident cases all the same.

75 Pa.C.S. § 3316

(a) Prohibition.--No driver shall operate a motor vehicle on a highway or trafficway in this Commonwealth while using an interactive wireless communications device to send, read or write a text-based communication while the vehicle is in motion. A person does not send, read or write a text-based communication when the person reads, selects or enters a telephone number or name in an interactive wireless communications device for the purpose of activating or deactivating a voice communication or a telephone call.

(b) (Reserved).

(c) Seizure.--The provisions of this section shall not be construed as authorizing the seizure or forfeiture of an interactive wireless communications device, unless otherwise provided by law.

(d) Penalty.--A person who violates subsection (a) commits a summary offense and shall, upon conviction, be sentenced to pay a fine of $50.

(e) Preemption of local ordinances.--In accordance with section 6101 (relating to applicability and uniformity of title), this section supersedes and preempts all ordinances of any municipality with regard to the use of an interactive wireless communications device by the driver of a motor vehicle.

(f) Definition.--As used in this section, the term “text-based communication” means a text message, instant message, electronic mail or other written communication composed or received on an interactive wireless communications device.

HRA5RJAGWV8H

DNC v. RNC 09-4615 (3d Cir. 2012)

noreply@blogger.com (Larkin) — Fri, 09 Mar 2012 14:25:00 +0000

Read the Full Text of the Opinion.

During the 1981 New Jersey gubernatorial election, the DNC, the New Jersey Democratic State Committee (“DSC”), Virginia L. Peggins, and Lynette Monroe brought an action against the RNC, the New Jersey Republican State Committee (“RSC”), John A. Kelly, Ronald Kaufman, and Alex Hurtado, alleging that the RNC and RSC targeted minority voters in an effort to intimidate them in violation of the Voting Rights Act of 1965 (“VRA”), 42 U.S.C. §§ 1971, 1973, and the Fourteenth and Fifteenth Amendments to the Constitution of the United States. The RNC allegedly created a voter challenge list by mailing sample ballots to individuals in precincts with a high percentage of racial or ethnic minority registered voters and, then, including individuals whose postcards were returned as undeliverable on a list of voters to challenge at the polls. The RNC also allegedly enlisted the help of off-duty sheriffs and police officers to intimidate voters by standing at polling places in minority precincts during voting with “National Ballot Security Task Force” armbands. Some of the officers allegedly wore firearms in a visible manner.

To settle the lawsuit, the RNC and RSC entered into a consent decree. Therein, both committees agreed to abide by all local and national election laws, not to communicate and, fundamentally, to not be racists.*

In 1987, the RNC initiated a second vote-fraud prevention campaign that, according to the RNC's Midwest Political Director, was designed to "keep the black vote down considerably." The individuals who were targeted for vote-challenges sued the Republican National Committee to enforce the consent decree and, as a result, the DNC and RNC agreed to even stricter language for the consent decree. Subsequent challenges were brought in the 1990s, in 2004, and 2008, with mixed results.

In 2008 the RNC petitioned the United States District Court for the District of New Jersey for permission to be released from its obligations under the consent decree. They claimed that (1) the need for the consent decree vanished with the passage of several federal statutes aimed at rooting out discrimination; (2) the consent decree overbroad given the context in which it was drafted; and (3) the consent decree violates the First Amendment by requiring the RNC to provide the text of the consent decree along with any information about vote-fraud it gives to state republican committees. The district court declined to vacate the decree and, instead, made administrative revisions to its terms, and the RNC appealed.

The Third Circuit Court of Appeals viewed the RNC's claims as legal shenanigans.** It rejected the First Amendment challenge as unsupported by state action, and found the remaining arguments to be frivolous. As such, the decision of the district court was affirmed.

________________________________________

* The actual language of the relevant portion of the consent decree is that both parties must "refrain from undertaking any ballot security activities in polling places or election districts where the racial or ethnic composition of such districts is a factor in the decision to conduct, or the actual conduct of, such activities there and where a purpose or significant effect of such activities is to deter qualified voters from voting." I'm sticking with my paraphrase.

** Specifically, the Court noted that "When, as here, a party voluntarily enters into a consent decree not once, but twice, and then waits over a quarter of a century before filing a motion to vacate or modify the decree, such action gives us pause." The Court also rejected "The RNC’s argument that the fact that President Obama, Attorney General Eric Holder, RNC Chairman Michael Steele, and another RNC leader are minorities justifies vacatur or modification of the Decree hardly requires a serious response. The RNC posits that a minority President and Attorney General of the United States increase the likelihood of prosecution for violations of the Voting Rights Act (“VRA”), such as intimidation of minority voters. Are we to conclude that all issues that affect African-Americans will now get greater funding, greater attention, and more focus because of President Obama? Our jurisprudence cannot depend on such assumptions."

Commonwealth v. Burwell, 2012 Pa. Super. 55

noreply@blogger.com (Larkin) — Fri, 02 Mar 2012 13:42:00 +0000

Read the Full-Text of the Opinion.

Ronald Burwell appeals from his judgment of sentence imposed after a jury found him guilty of aggravated assault for twice striking the victim, a caretaker at the Erie County Amtrak station, in the face and wrist with an electric guitar. The victim suffered a broken wrist and cracked eye socket; he required seven stitches as a result of the incident and suffered numbness on the left side of his face for two months following the assault. At the time of trial he was still suffering facial tenderness.

The Honorable Shad Connelly applied the deadly weapon enhancement and sentenced Burwell to a high-end standard-range sentence of 120-240 months’ imprisonment, with costs and restitution to the victim in the amount of $2,800 for lost wages. Burwell filed a postsentence motion asking the court to reconsider/reduce his sentence. Burwell filed post-sentence motions which were denied on June 8, 2009, without a hearing or accompanying Rule 1925(a) opinion, by the trial court.

Burwell filed a notice of appeal, and trial counsel then filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967). Although the usual procedure in Pennsylvania is for the trial court to issue an opinion following receipt of a notice of appeal, it chose not to do so in this case. The Superior Court took exception to this failure, and remanded the case for a trial court opinion.

Instead, the Public Defender petitioned the Supreme Court of Pennsylvania for permission to withdraw from the matter without either merits briefing or a trial court opinion. The Supreme Court denied the petition and the matter was remanded to the trial court, which issued a one-paragraph opinion. The Superior Court found this insufficient, and remanded the matter for an additional opinion; the trial court then issued a second one-paragraph opinion adopting the previously filed no-merit brief.

In a published opinion, the Superior Court scolded the trial court for its failure:

Judge Connelly’s reliance, after our second remand, on the arguments set forth in counsel’s Anders brief suggests nothing less than an unacceptable shirking of his judicial obligations. The rules of appellate procedure do not direct trial courts to submit opinions simply as an exercise in expository writing. Rather, the trial court opinion is a necessary component of appellate review, providing the reviewing court with a reasoned basis for the lower court’s decisions and enabling it to engage in a thorough consideration of the issues raised by an appellant.

Ultimately, the Court found that two of the defendant's issues were not wholly frivolous, and—for a third time—remanded the matter for briefing.

Commonwealth v. Rivera-Rodriguez 2012 Pa. Super. 43

noreply@blogger.com (Larkin) — Wed, 29 Feb 2012 17:24:00 +0000

Read the Full-Text of the Opinion.

On the night of January 17, 2004, Rivera Rodriguez was walking alone when Mr. Gardina stopped his car beside him and asked if he knew where to purchase a small amount of marijuana. Rivera Rodriguez told the victim he could obtain marijuana for him and, after entering the victim’s vehicle, directed him to a friend named Sanchez. After Sanchez entered the car, Rivera Rodriguez told him, in Spanish, that he wanted to take Mr. Gardina to the lot behind Sanchez’s residence, rob him, and kill him. When they arrived at their destination, Rivera-Rodriguez held down the victim while Sanchez stabbed him to death. The two men then robbed the victim's body, and fled.

Rivera-Rodriguez was asked to come to the police station where he gave a signed confession to the foregoing. He was charged with capital murder, and the District Attorney of Lancaster County began proceedings to impose the death penalty. In exchange for foregoing imposition of the death penalty in the event of a conviction, Rivera-Rodriguez waived his right to a jury trial. He was convicted of first degree murder, robbery, and related offenses, and sentenced to an aggregate term of imprisonment of life plus 23-to-46 years. At the time of the murder and throughout the trial both the Commonwealth and the defense agreed that Rivera-Rodriguez' IQ was 58.

On collateral appeal, Rivera-Rodriguez argued that he was mentally retarded and, therefore, not subject to execution under Atkins v. Virginia, 536 U.S. 304 (2002). In that case, the Supreme Court of the United States held that imposition of the death penalty upon individuals who are mentally retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Thus, Rivera-Rodriguez argued, his waiver of a jury trial was made without consideration, because the Commonwealth could not have executed him regardless. He argued that trial counsel was ineffective for counseling him to accept the Commonwealth's valueless offer, and demanded retrial.

Judge Bowes, writing for a unanimous panel of the Superior Court of Pennsylvania, observed that in Atkins, the Supreme Court adopted the "clinical definition" of mental retardation, which required more than mere "subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18." Based on this, Rivera-Rodriguez' IQ—which was lower than Atkins' IQ of 59—was not disposative of the Commonwealth's ability to execute him.

Instead, Judge Bowes focused on Rivera-Rodriguez' adaptive skills, which had been the subject of extensive pre-trial examination in order to determine whether he was able to stand trial. She observed that he had a girlfriend, had maintained steady employment and, in the words of one expert, "appeared to be functioning at a higher IQ than he tests." On this basis, the Court held that Rivera-Rodriguez' attorneys fear that he could be executed was not unreasonable, and their counsel that he waive his right to a jury was not ineffective assistance.

U.S. v. Saferstein, 10-4092 (3d Cir, 2012)

noreply@blogger.com (Larkin) — Mon, 27 Feb 2012 23:13:00 +0000

Read the Full-Text of the Opinion.

From 1997 until 2004, Saferstein was President, Chief Executive Officer, and majority owner of GoInternet, a telemarketing company based in Philadelphia. Beginning in 1997, GoInternet's telemarketers cold-called businesses around the country in an attempt to sell them an internet services package, including a web page, dial-up web access, and an email account. GoInternet began charging each business that agreed to receive a “welcome packet” $29.95 per month for these services, a fee which was added to its telephone bill. By the end of 2003, more than 350,000 businesses were “customers” of GoInternet, yielding annual gross revenue in excess of $49 million.

GoInternet's implementation of this business model had several fraudulent aspects. First, the telemarketers frequently failed to disclose the full terms of the agreement, including the fact that consenting to receive a welcome packet would result in the $29.95 monthly charge unless the business called GoInternet within fifteen days to cancel services. Second, the welcome packet looked like unsolicited junk mail, so that it was often discarded unopened. Even if a customer did open and read the welcome packet, disclosures related to billing were hidden, so that most customers remained unaware that they were required to cancel services in order to avoid being charged. Third, because the charges appeared only within telephone bills, many customers did not notice the GoInternet charges. Fourth, GoInternet lacked the personnel to handle incoming calls from customers, making it extremely difficult for customers who attempted to cancel to do so successfully.

In addition to these fraudulent practices, the web pages provided to GoInternet customers were not accurate or useful to potential customers. The websites were generic, filled with mistakes, and often appeared at web addresses that were impossible to locate using major search engines.

The Government has estimated the losses to customers associated with the scheme to be approximately $74 million.

Saferstein and GoInternet were sued by the FTC and, by agreement, were ordered to inform their "customers" that they were being billed. Saferstein apparently prepared mailings but, before they were sent, had them destroyed. When the FTC demanded he be held in contempt, Saferstein convinced a co-executive to present perjurious testimony that GoInternet's services were used by a significant fraction of its customers.

Ultimately, Saferstein was charged with failing to report more than $1.8M in personal income, and failing to pay more than $2.8M in payroll taxes. He was also charged with sixteen counts of mail and wire fraud, conspiracy to commit perjury; four counts of submitting false tax returns, and six counts of failure to pay over payroll taxes. He pleaded guilty to mail fraud, wire fraud, and submitting false tax returns, and waived his rights to appeal.

Prior to sentencing, the trial judge indicated on the record that Saferstein would be permitted to raise constitutional issues on appeal. The plain language of the plea agreement, however, unambiguously indicated that Saferstein would only be permitted to raise "constitutional claims that the relevant case law holds cannot be waived.” Saferstein appealed, raising a constitutional claim that has not heretofore been deemed to be one that cannot be waived, and relied on the trial judge's explanation of his plea agreement to void the provision that would have barred his appeal.

The Third Circuit noted that plea agreements are considered under contract law. However, the Court noted, the plea colloquy has no analogue in contract law. Given that, and the Court's recognition that plea agreements must be construed to protect the defendant as the weaker bargaining party, it held that a statement made by the sentencing court during the colloquy can create ambiguity where none exists in the plain text of the plea agreement. This ambiguity is to be resolved in favor of the defendant and, as such, Saferstein was permitted to raise his issue.

Wetzel v. Lambert, 565 U.S. ___ (2012)

noreply@blogger.com (Larkin) — Wed, 22 Feb 2012 13:31:00 +0000

Read the Opinion
James Lambert was convicted and sentenced to death in 1984 for the murder of two patrons during a robbery of Prince’s Lounge in Philadelphia, Pennsylvania. One of the Commonwealth’s primary witnesses at Lambert’s trial was Bernard Jackson, who admitted to being involved in the robbery, as well as 15 other unrelated armed robberies, and identified Bruce Reese and Lambert as his accomplices. Almost 20 years later, Lambert's attorneys—the federal defenders—discovered a cryptic handwritten notation on a police activity sheet that "Woodlock is named as a co-defendant by Jackson." Based on this note, without more, the Third Circuit overturned Lambert's death sentence, and ordered the Philadelphia District Attorney's Office to retry Lambert within 120 days or, alternatively, to release him. The Commonwealth petitioned for certiorari.

Prior to reaching the Third Circuit, Lambert presented the note to the Pennsylvania state courts on post-conviction collateral appeal. There, the Commonwealth argued that the note only appeared once in Lambert's police file and, therefore, it was reasonable to assume that Woodlock was named by Jackson as a co-defendant in one of his fifteen other robberies. At most, the Commonwealth argued, Woodlock's involvement in Lambert's crime was speculation. The Court of Common Pleas, Superior Court, and Supreme Court of Pennsylvania agreed and, also, they pointed out that Jackson had been impeached thoroughly based on his extensive criminal record; one additional ambiguous piece of evidence would not have made a difference. Based on this conclusion, each of the state courts denied Lambert relief.

Lambert then petitioned for habeas corpus in the District Court where, again, he was denied relief. The Third Circuit, on the other hand, concluded that it was “patently unreasonable” for the Pennsylvania Supreme Court to presume that whenever a witness is impeached in one manner, any other impeachment evidence would be immaterial. According to the Third Circuit, the notation that Jackson had identified Woodlock as a co-defendant would have “opened an entirely new line of impeachment” because the prosecutor at trial had relied on the fact that Jackson had consistently named Lambert as the third participant in the robbery.

The Supreme Court of the United States granted writ of certiorari. That Court observed that the state court rulings were two-fold: that the notation was ambiguous and therefore immaterial and, also, that additional impeachment would have been redundant. The Supreme Court then pointed out that the Third Circuit had only addressed the state courts' redundancy argument and, therefore, had not appropriately decided whether there was any reasonable basis on which to affirm the state courts' decision. As such, it remanded the matter for reconsideration on that issue by the Third Circuit. Justices Breyer, Ginsburg, and Kagan dissented.

This case perfectly illustrates the predominant fact about the application of the death penalty in Pennsylvania: it isn't carried out. Lambert was convicted and sentenced to death in 1984. He first raised this frivolous issue in the early 2000s and, only now, a decade later, has reached the Supreme Court. Far from finally resolving the question, the Court remanded the matter for further consideration by the Third Circuit, a process that will last for two years at least while the Commonwealth and the federal defenders brief the issue. Thereafter, no matter the outcome, there will be another petition for certiorari to the Supreme Court which will delay the execution for another year. And, no doubt, more issues will surface during the investigation of this issue that will launch new decades long appeals of their own.

In the meanwhile, Pennsylvania citizens are paying for the full-time services of appellate attorneys in the Philadelphia District Attorney's office to work on Lambert's case. They're also paying a team of federal defenders—literally, it's not just one lawyer, it's a team of attorneys and paralegals, all paid on the inflated federal payscale—to raise one pointless issue after another to keep Lambert away from the needle. And of course the courts, court staff, judges, and justices aren't cheap either.

Whatever your position on the death penalty, this is not an effective use of our resources.

Commonwealth v. George (2012 PA Super 32)

noreply@blogger.com (LPHW) — Thu, 16 Feb 2012 01:36:00 +0000

Link to the full text of the Opinion.

SUMMARY: The Commonwealth appeals the trial court's order dismissing two counts of criminal organization and one count of conspiracy to deliver cocaine, which came after George had pleaded guilty to a charge arising from related conduct. The Superior Court found that the trial court had not erred in disposing of the case pursuant to the compulsory joinder statute, 18 Pa.C.S. § 110.

George was arrested in 2007 and charged with three counts of delivery of a controlled substance (cocaine). In exchange for leniency and the promise that no new charges would be filed, George cooperated with investigators in identifying his suppliers. George ultimately pleaded guilty to one count of possession with intent to deliver. George provided information to investigators as part of his cooperation, but invoked his Fifth Amendment rights to avoid testifying before a state-wide investigating grand jury that was looking into the drug ring.

The grand jury eventually recommended charges against twenty-two defendants, including George, and George was subsequently charged in 2010 with criminal organization and conspiracy to deliver for his contact prior to his 2007 arrest. George filed a writ of habeas corpus claiming that the charges violated the compulsory joinder statute. The trial court granted relief. In its appeal to the Superior Court, the Commonwealth argued that the compulsory joinder requirement had not been triggered, focusing on 18 Pa.C.S. § 110(1)(ii). The Court held this statute contains four elements that must be met to bar prosecution:

(1) the former prosecution must have resulted in an acquittal or conviction;
(2) the current prosecution is based upon the same criminal conduct or arose from the same criminal episode as the former prosecution;
(3) the prosecutor was aware of the instant charges before the commencement of the trial on the former charges; and
(4) the current offense occurred within the same judicial district as the former prosecution.

The Court found that only prongs (2) and (3) were at issue. In reviewing the merits, the Court found that there was a sufficient logical and temporal link between the two sets of charges--including that the information provided to the grand jury that formed the basis for George's indictment was drawn directly from George's statement while cooperating--and that the Commonwealth was aware of the facts underlying the charges when George plead guilty in 2007. Unsurprisingly, the Superior Court rejected the Commonwealth's appeal.

RESULT: Order Affirmed (Commonwealth's appeal fails), 3-0.
JUDGES: Bowes, Colville, and Fitzgerald, JJ.

Read the opinion by Bowes, J.

Commonwealth v. McKee (2012 PA Super 30)

noreply@blogger.com (LPHW) — Wed, 15 Feb 2012 23:16:00 +0000

Link to the full text of the opinion.

SUMMARY: McKee successfully challenged his conviction for burglary, conspiracy to commit burglary and theft by unlawful taking, with the Superior Court holding that the evidence was insufficient for a conviction. The Commonwealth did not pursue a further appeal. McKee filed a motion asking that he be reimbursed for court costs, fees and the monies he had paid in restitution. The trial court found that it did not have jurisdiction over this motion and this appeal by McKee followed.

The Superior Court has the power to review restitution in the same way it reviews the legality of the sentence: with discretion to the trial court unless there has been an error of law committed by the trial court.

The trial court argued that it was bound by Section 5505 of the PA Judicial Code, which allows modification of an order issued by the trial court only within 30 days of issuance, if no appeal has been undertaken. The trial court looked to an Idaho Supreme Court case in which the trial court did not have jurisdiction over the return of restitution. The Superior Court rejected the guidance of the Idaho case, and suggested that Section 5505 is not controlling in this situation.

The Superior Court found that while there was no Pennsylvania case on point, similar cases had shown that the trial court could order the return of restitution paid to an ineligible recipient or restitution that had been subject to an illegal order of open-ended restitution. Also, the Pennsylvania Supreme Court had held that Section 1106(c)(3) of the Crimes Code "authorizes a sentencing court to modify restitution orders at any time provided the court states its reasons as a matter of record" (Opinion at p.5), and the Rules of Appellate Procedure allowed the trial court to do so as soon as the Commonwealth decided not to appeal the Superior Court's decision in the criminal case.

RESULT: Remanded to trial court with instructions to repay McKee and follow 1106(c)(3) (McKee succeeds), 3-0.
JUDGES: Panella, Ott, and Strassburger, JJ.

Read the full opinion by Panella, J. here.

Commonwealth v. Chine (2012 PA Super 28)

noreply@blogger.com (LPHW) — Wed, 15 Feb 2012 22:36:00 +0000

Link to the Opinion on the Superior Court website.

SUMMARY: After being convicted by a jury of first-degree murder and possession of an instrument of crime, Chine challenged the sufficiency and weight of the evidence underlying the jury's conviction, and claimed that the trial court erred in not instructing the jury on self-defense and voluntary manslaughter. The Superior Court rejected Chine's arguments.

After outlining the standards for sufficiency and weight challenges, the court rejected the first two arguments, specifically focusing on the issue of whether malice had been proved (PA requires three elements to be proved for a first-degree murder conviction: 1) human is killed; 2) caused by the accused; 3) with malice and specific intent to kill). As Chine had confessed to intending to shoot the victim in the head, the court focused on the fact that malice could be inferred from the use of a deadly weapon on a vital portion of the victim's body. Chine had shot the victim in the back of the head as the defendant was walking away from him and had said "yeah, pussy, boom boom" after killing defendant.

Additionally, the court found that Chine's belief and pleading at trial that the victim was going to his car--which was 90 feet away--to get a gun was insufficient to allow Chine to use deadly self-defense preemptively. Nor did these facts require the trial court to issue the instruction on self-defense. The court stated "we fail to see how it was necessary for Appellant to kill the victim to protect himself from the imminent danger of death when the unarmed victim neither threatened Appellant nor spoke to him, but actually acted as a peacemaker in calming down his brother. Even if we believe that the victim’s brother threatened Appellant, we see no reason why Appellant should be entitled to use deadly force on the victim," particularly when the "threat" that Chine acted on was that the victim gave his brother the keys to a car where there might be a gun. (Opinion at p.10)

Chine did not fully flesh out his argument with legal authority or meaningful analysis on whether or not the voluntary manslaughter instruction should have been given by the trial court. As a result, this claim was deemed waived.

This case seemed pretty cut-and-dry, given the factual circumstances from the trial and the confession. The case does highlight that the facts underlying self-defense claims must present a case of truly clear-and-present danger, not the inchoate possibility of danger stemming from threats of harm and concurrent movement towards a car where there might be a gun.

RESULT: Conviction Affirmed (Chine loses on all grounds), 3-0
JUDGES: Stevens, P.J., Bender, J., and Donohue, J.

Read the opinion by Stevens, P.J.

Commonwealth v. Hoppert, 2012 Pa. Super. 21

noreply@blogger.com (LPHW) — Mon, 13 Feb 2012 14:00:00 +0000

In this case, Clyde Hoppert appealed the trial court's decision to deny his motion to suppress child pornography and child erotica obtained through warrants. Hoppert argued that the warrants were invalid because they were based on "stale" information. The Superior Court rejected Hoppert's arguments, holding that despite the nearly 9-month time frame, information obtained from Hoppert's prior internet service provider under a first warrant--which served as the basis for a second warrant for his home--was not stale. As a result, the Superior Court decided that the motion had been properly denied.

During an investigation in California, a detective contacted Pennsylvania police about a transfer of child pornography between an AOL account registered to Hopper's wife and an account in California. The California police obtained the name of the AOL subscriber and Pennsylvania police tracked the account holder to a new address through driving records. Hoppert had moved to the new address at some point after the child pornography had been sent. After viewing child pornography in the emails, Pennsylvania police were issued a search warrant for the full AOL account information. AOL provided usage data which showed that Hoppert's account was online when the emails containing child pornography were sent. Also, another user who received child pornography from Hoppert's email address was in Hoppert's AOL contact list. Police also learned that the account had been closed approximately three months prior to the date of the search. Using this information, police obtained a warrant for Hoppert's new address which yielded computers containing child pornography and AOL account information. Hoppert challenged the validity of the search warrants in a pre-trial Motion to Suppress which was denied. At trial, Hoppert was found guilty of dissemination and possession of child pornography.

Hoppert claims that the information underlying the warrants was stale, and thus, under Pennsylvania law, that the warrants were invalid. Specifically, Hoppert claims that there was no probable cause to believe AOL still held the account information after the account was closed. As a result, he claims this information is stale and this warrant invalid. Hoppert also claims that there was no probable cause to search his new residence--which he had moved to after the child pornography had been sent--because there was no nexus between the AOL account and the new residence and police had no independent probable cause to believe there was child pornography in his new home.

Pennsylvania courts look at the nature of the crime and the type of evidence in determining whether probable cause has become stale. The Court had found that probable cause became stale after seven weeks in a narcotics case, but had found that probable cause remained "fresh" for shoes worn in a bank robbery because shoes were less likely to be thrown away. As a general rule there must be a "fair probability" that the items will be at the location to be searched. Because child pornography is hard to obtain and dispose of and can be resurrected from hard drives if deleted, and because there was a "fair probability" that AOL had kept the data, the Court found that the six-month period between the email being sent and the first search warrant for AOL was not too long. The Court noted pragmatically that a different result would allow child pornographers to invalidate probable cause by changing ISPs frequently.

The Court found that the second warrant was valid once the link between Hoppert's old and new addresses was made by police. Because it was reasonable to believe that the images were still on Hoppert's personal computer and that he viewed them in the privacy of his home, there was sufficient probable cause for the warrant to search his house. The Court rejected Hoppert's argument that there was no proof he had opened or viewed the contents of the email before forwarding it.

This case allows probable cause to remain "fresh" over nine months or more in cases involving email and other transfers of electronic data. ISPs which maintain client data once the accounts are closed, increased cloud computing and online email storage, and the increased collection of location data by companies like Apple and Google will all lead to "fresh" probable cause being extended indefinitely. The Superior Court focuses on the nature of the crime--child pornography and exploitation--to determine that it is likely that the defendant here kept his hard-won contraband. But given user's ability to store or "archive" emails in perpetuity, the courts could easily extend this "freshness" to any crime committed over email. Email frauds like phishing, emailed threats or harassment, copyright infringement, or any email that discusses criminal activity could be used to bootstrap probable cause for months and even years, at least up until the statute of limitations forecloses prosecution.

As a final issue, the Court noted in a footnote that while standing had not been addressed by either side, the issue of expectation of privacy--which the Court says is the standard for standing to challenge the search of records--was important for future cases. (See Opinion, n. 3, pp. 9-10). The Court found that previous decisions had denied standing when telephone records were not in the defendant's name, but in a wife or girlfriend's name. Even when the phone in question was used primarily by the defendant, the fact that the records were not was determinative. Had the issue been raised in this case, because the AOL account was registered in Hoppert's wife's name, the Court would have held that Hoppert did not have an affected expectation of privacy and thus did not have standing to challenge the warrant. This restatement of the standing requirement--which amounts to a per se rule against standing if the defendant is not explicitly connected to the document or information seized--could lead to more streamlined arguments against standing.

Goodman v. Chester Downs, 2012 Pa. Super. 27

noreply@blogger.com (Larkin) — Mon, 13 Feb 2012 11:47:00 +0000

This is a difficult case to report because the majority opinion, along with the facts and holding, were unpublished. Inferring from what little information is available, it sounds as if the plaintiff, Tondalaya Goodman, sustained serious injuries to her left knee after she slipped and fell on an unidentified liquid in front of the Winning Streak restaurant at Chester Downs. Reading between the lines, it sounds as if the trial court awarded summary judgment to the defendant, and Goodman appealed. The majority reversed the decision of the trial court-whatever it was-and remanded the matter for further proceedings.

What makes this case interesting is that Judge Strassburger published a concurring opinion in which he suggested that the plaintiff could not prove that the dangerous condition was the result of Chester Downs' negligence, or that Chester Downs had notice of the condition. Under Pennsylvania law, this is a necessary element of a slip-and-fall case.

Judge Strassburger suggested, however, that:

Where a customer has sustained injuries although neither the customer nor the store has [potentially] behaved negligently, it would be more fair to hold the store responsible than to place the risk on the consumer. Accidents such as these are foreseeable risks of conducting this type of business, and commercial businesses are in a far better financial position to absorb the cost by spreading the risk among thousands of customers. Between these two [potentially] innocent parties, fairness should require the store to pay as a cost of operating its business.

Of course, there are flaws in this logic. If Bill Gates were to slip-and-fall at a mom-and-pop grocery store, clearly he, and not the store, would be in the better position to absorb the cost. Put another way, Judge Strassburger's opinion is premised on the assumption that corporations will usually have more disposable income than individuals. This is not always the case. An additional concern is that, by imposing a strict-liability standard on corporations, the cost of liability insurance would skyrocket. There is, moreover, an intrinsic appeal to the argument that, where the corporation is not actually at fault, the risk should be placed on the party most able to avoid it by just, well, watching out.

On the other hand, Judge Strassburger's assumption-that stores usually are better equipped to absorb catastrophic medical bills than their customers-is frequently correct. And there's a large gap between instances in which stores have behaved negligently, and in which even the most skillful attorney can prove it. Judge Strassburger's suggestion would narrow that gap and, in economics-speak, avoid some of the deadweight losses. There's something to be said for that.

Regardless, even the hint that the Court is considering a move away from the bedrock principle of Pennsylvania slip-and-fall law is an exciting one. It's also something that's worth putting in front of a trial court judge in narrow cases.

Read the Opinion.

Commonwealth v. Stein, 2012 Pa. Super. 26

noreply@blogger.com (Larkin) — Fri, 10 Feb 2012 11:00:00 +0000

On August 10, 2010, Officer Thomas Fahy, of the Cheltenham Township Police Department, while operating undercover, conducted a controlled buy from defendant. The two men met at about 8:00 p.m. at Conklin pool in Cheltenham Township, Montgomery County, Pennsylvania. Defendant arrived in a silver 2007 Subaru Legacy and approached Officer Fahy with a small bag. He showed Officer Fahy the inside of the bag, where he had hidden about 16.5 grams of marijuana. The officer gave defendant $100, which he accepted, handed over the bag, and left.

On September 3, 2010, Officer Fahy arranged a second controlled buy from defendant. The second buy took place at 1600 West Church Road in Cheltenham Township, Montgomery County. There, again, defendant exchanged about 16.3 grams of marijuana for $100. .

On September 8, 2010, Officer Fahy arranged a larger controlled buy from defendant. He and defendant again met at 1600 West Church Road where, this time, defendant brought about a pound of marijuana, for which he was paid $1,500. After the transaction was completed, defendant was placed under arrest. A search of his person recovered the $1,500 in pre-recorded buy-money, and a fully loaded Smith & Wesson 9mm revolver.

On the same day, members of the Philadelphia Police Department’s Narcotics Field Unit North served a search warrant on defendant’s home at 7718 Summerdale Ave, Philadelphia, Pennsylvania. There, the Philadelphia police discovered approximately 330 grams of marijuana, scales, grinders, and $15,665 in U.S. currency. The police also recovered an arsenal of weapons, including a bulletproof vest, a semi-automatic rifle loaded with 30 rounds, a 12 guage shotgun, a second fully loaded Smith & Wesson revolver, a semiautomatic handgun, and a .22 caliber pistol.

On January 28, 2011, defendant entered a negotiated guilty plea to one count of delivery of marijuana, and one count of possession with intent to deliver, before the Honorable Thomas C. Branca. He was sentenced to an aggregate term of imprisonment of five years.

Stein appealed, alleging that he was improperly sentenced to a five-year mandatory minimum sentence because, he claims, he did not actively use the firearm during the commission of his crimes. He also noted that he was the registered owner of the firearm. Based on this, he argued that a statute that created a presumption that he had used the gun illegally was unconstitutional under the Second Amendment to the United States Constitution and Article I § 21 of the Pennsylvania State Constitution. The author represented the Commonwealth on appeal.

Judge Donohue, writing for a unanimous panel, disagreed. Instead, she noted that the statute at issue penalized offenders who committed drug crimes while in possession of firearms, regardless of how or if the firearms were "used." There was, therefore, no nexus requirement between possession of a firearm and a drug sale in order for the mandatory minimum to apply.

Read the Opinion.

Perry v. Brown (9th Cir. 2012)

noreply@blogger.com (LPHW) — Wed, 08 Feb 2012 21:05:00 +0000

While this case is not specific to Pennsylvania, it is of great interest.

In the latest installment of the Proposition 8 fracas, a panel of the Ninth Circuit made up of three judges--Judge Reinhardt (nominated by President Carter in 1980), Judge Hawkins (nominated by President Clinton in 1994) and Judge N.R. Smith (nominated by President Bush in 2007)--determined that Proposition 8 violated the equal protection clause of the Fourteenth Amendment. The panel split 2-1 in favor of upholding the District Court's opinion invalidating Proposition 8, with Judge Smith filing a partial dissent on the constitutional elements of the case. The Due Process part of the judgment from the District Court was not addressed in the opinion, so an evaluation of this argument is not included below.

Gay couples and their supporters protest in California

The differing opinions in this case are focused around whether or not denying gays and lesbians the right to call a governmentally-blessed union a "marriage" is a violation of the Equal Protection clause of the 14th Amendment. The majority believes that it is.

In California, other laws allow couples in "domestic partnerships"--which includes both opposite- and same-sex couples--the full rights afforded to "married" couples, including the rights surrounding medical treatment and parental/adoptive rights. The California Constitution contains a fundamental right to marry for all people that has been validated by the California Supreme Court, regardless of the sex of the partners in the couple. Proposition 8 sought to redefine "marriage" in the California Constitution on a procedural level, without taking away any of the other substantive rights previously held by same-sex partners. In essence, Proposition 8 made it impossible for same-sex couples to be legally designated as "married," and that is all.

Because homosexuals have not been defined as a suspect class entitled to greater protections (like those of other minority or underrepresented groups--women, non-whites, people of different ethnicities), the law must have a rational basis in order for it to be upheld. That means that if there is a rational legitimate governmental aim--including moral disapproval or animus if combined with additional reasons--then the law is constitutional and valid.

Proponents of Proposition 8 claimed that the government has an reasonable interest in promoting procreation and biological families. The majority agreed, but found that Proposition 8 did not actually change the ability of same-sex couples to procreate or raise children. As a result, the majority found that the law itself did not fulfill this governmental interest. The Court similarly rejected reasons based on religious freedom--protecting pastoral persons from anti-discrimination laws for refusing to bless a marriage--and preventing same-sex unions from being taught in schools. As the Court noted, Proposition 8 made no changes to the autonomy of churches or schools to decide how they address same-sex unions, so there could not be a rational basis for the law. A final reason, "to proceed with caution before making significant changes to marriage" also failed to attract the majority, which found that California had already provided full rights to same-sex couples, so there was little impact that redefining marriage could have.

In fact, the Court found that Proposition 8 was only designed to deprive gays and lesbians of the "State's authorization of that official status and the societal approval that comes along with it" (Slip Op. at p. 37).

The dissent disagreed, finding the potential justifications on procreation and incremental changes in marriage equality to be sufficient rational bases for the law to be valid.

It should be noted that officials of the Government of California, named defendants, did not argue or participate. Standing was conferred on the proponents of Proposition 8 who, under California law, have the ability to litigate on behalf of the government if the government chooses not to pursue the case. This issue was settled by the California Supreme Court, and the Ninth Circuit acknowledged that because the proponents of Proposition 8 were entitled to litigate on behalf of the state under state law, they were entitled to equal standing under Article III as California would have had. Their arguments, however, were required to be colorably those which the government itself would have advanced. A challenge of the District Judge's impartiality--given that he was gay and might be interested in obtaining same-sex "marriage" for himself--was also rejected by all three members of the Panel. Judges should be able to rule impartially on issues, and the Court affirmed Judge Vaughan's ability to hear and fairly decide this case.

On the issue of the constitutionality of same-sex marriage on the whole, the Court demurred. Able to find safe haven in California's laws, the Court avoided this question altogether.

There are some amusing moments in Judge Reinhardt's opinion when he describes the place that the term "marriage" has in society--and thus the impact of denying its use to gays and lesbians, (Slip Op. p. 38), including a play on the title of the film "How to Marry a Millionaire," which became "How to Register a Domestic Partnership with a Millionaire." I was almost surprised that the majority did not repudiate the adage "Sticks and stones may break my bones, but words will never hurt me." The opinion's wit may draw smiles, but it may equally undermine the central thesis of the majority opinion: that the term "marriage" holds greater significance and confers greater respect than "domestic partnership." The Court might have been better served to look at other instances where different terminology leads to different results, and to focus on how important legislative precision is in our system. The law uses language to send messages. Sometimes those are clear, and sometimes they are vague, and that is both by accident and by design. But when Courts and governments are required to enforce those terms, their importance becomes clear; the weight of the words becomes clearer.

Having two different terms to describe the same conduct under the law is unconstitutional if it singles out a certain group as less important, less legitimate or less acceptable. Animus is not rational basis, under the Constitution, and that is why Proposition 8 will not last much longer. In Pennsylvania, this does not change much. The basis for the majority's conclusions stemmed from California's liberal protections. The Court does not address broader issues surrounding gay marriage. What this could mean in the future is that the terminology used to describe civil unions and marriages--if the rights are substantively identical but the terms are different--may be subject to challenge. This means that if you provide full rights to two classes of people, the State may be forced to call those rights by the same name. Marriage versus civil union/domestic partnership may be like Kleenex to tissue: for all intents interchangeable (though Kleenex does have trademark protection, so it would be afforded greater protection). This is a good thing, as legal distinctions between classes of people are not constitutional in most cases, and changing the terminology is an important first or final step to achieving equality.

As for Perry v. Brown, the appeal is expected to continue, with a request for an en banc hearing (the full Ninth Circuit Court) and then an appeal to the Supreme Court. Despite the enjoyment that the Supreme Court takes in reversing the Ninth Circuit, I imagine that this case will be denied rehearing in front of the full Ninth Circuit and denied certiorari. The central question of the constitutionality of gay marriage is no longer alive in this case, and the value of continuing is dubious.

Read the opinion here.

Ryburn v. Huff, 565 U.S. ___ (2012)

noreply@blogger.com (LPHW) — Mon, 06 Feb 2012 11:00:00 +0000

In a per curiam opinion, the Court found that officers were entitled to qualified immunity for the violation of the Fourth Amendment based on a fear for officer safety. Prior to this case, officers were entitled to immunity in cases where they entered a home without a warrant with the objectively reasonable belief that a person inside was in imminent danger of serious harm. Now, officers are immune from suit if they fear imminent danger to themselves.

The suit was originally filed under 42 U.S.C. §1983, which allows lawsuits by individuals for violations of constitutional or legal rights by the government. The plaintiffs, the Huffs, claimed that police violated the Fourth Amendment by entering their home without a warrant, and the police officers argued that they were entitled to qualified immunity from the suit. Generally, an officer performing a discretionary function enjoys qualified immunity in a civil action for damages, as long as he does not violate established constitutional or legal protections.

Police had been investigating a rumor that Vincent Huff had threatened in a letter to “shoot up the school.” After a request by the principal, and finding that Vincent fit the profile of a school shooter—he had been bullied; another student thought he was “capable” of violence—the police went to Huff’s home. Four officers arrived at the house, knocked repeatedly and received no answer. They then called the house phone repeatedly and received no answer. They then called Vincent’s mother’s cell phone. Mrs. Huff answered and told police she was in the house, but ended the call abruptly. She emerged from the house a few minutes later with Vincent, declining the police’s suggestion that they protect Vincent by talking inside, which police found “extremely unusual.” Police also were surprised that Mrs. Huff never asked about the reason for the visit.

The police then asked if there were any guns in the house. In response, Mrs. Huff immediately turned and ran into the house. Afraid for their safety, the two officers closest to the house entered after her. Having been out of earshot of the conversation, the other two officers followed on the assumption that consent had been given to enter the house. The officers were in the house for 5-10 minutes before they were challenged by Mr. Huff and told to leave. The rumor of Vincent’s threats against the school was ultimately found to be false.

As noted above, the Court’s interpretation of the Fourth Amendment allows police officers to enter a house without a warrant when they have an objectively reasonable basis for believing that an occupant is imminently threatened with serious injury. If a court finds that these exigencies exist, qualified immunity protects the officers from suit.

In this case, the Court found that given the Huff’s odd behavior described above, the specific threats under investigation and Mrs. Huff’s decision to run into the house when police asked about guns, there was an objectively reasonable basis for the police to fear an imminent threat to officer safety and to enter. Specifically, the Court found that the Ninth Circuit improperly reviewed the District Court’s findings of fact, improperly characterized Mrs. Huff’s flight into the house as an innocent termination of the encounter, improperly evaluated the objective reasonableness based on each element of the situation (not answering phones, not answering knocking, etc.) instead of on the combined circumstances; and improperly looked at the encounter with “20/20 hindsight” instead of through the eyes of the police at the time.

The Court has opened a door wide for qualified immunity for violations of Constitutional rights based on fear for “officer safety.” The Court has specifically admonished that lower courts should evaluate these situations through the eyes of officers at the scene by looking at all of the circumstances, which will make it much harder for litigants to bring successful claims.

Read the opinion here.

National Meat Association v. Harris, 565 U.S. ___ (2012)

noreply@blogger.com (Larkin) — Sun, 05 Feb 2012 22:45:00 +0000

The Federal Meat Inspection Act ("FMIA") has specific requirements relating to the type of animals eligible for slaughter and sale as meat. Healthy ambulatory animals are passed by inspectors and slaughtered, packaged, and sold; non-ambulatory animals that display additional signs of infection are condemned, segregated, and slaughtered separately. Intermediate cases are categorized as "suspect," separated from both the passed and condemned animals. Following a second, more careful inspection, those animals may be passed, slaughtered, and sold, or condemned. This creates a practical issue, however, of how non-ambulatory animals are to be funneled out of the slaughter process for segregation either as condemned or suspect.

In 2008, the Humane Society of America released undercover footage showing how nonambulatory animals are, in fact, funneled out of line. In that video, the injured animals are subjected to electric shocks, stabbed with the prongs of fork lifts, blasted with fire hoses, and beaten in the face and eyes.

The California legislature responded to the blatant cruelty by passing their own inspection statute, requiring that injured animals be quickly and humanely euthanized, instead of being forced to travel long distances and then wait, in pain, for a second inspection. The National Meat Association challenged the statute as preempted by the FMIA.

Justice Kagan, writing for a unanimous Supreme Court, observed that "nothing in the federal Act requires what the state law forbids (or forbids what the state law requires)." Nevertheless, the Court held that the express preemption provisions of the FMIA preclude states from imposing additional burdens on slaughter houses, even in the interest of preventing animal cruelty.

The Court confined its analysis to the express language of the federal statute and, consequently, avoided a policy analysis. This spared Justice Kagan from having to explain the legitimacy of a federal statute that requires minimum-wage employees to move non-ambulatory animals out of a slaughter line and into a separate segregated pen and, thereafter, hold them there for a future inspection. The Court did note, however, that between 100,000-to-1,000,000 pigs are found to be injured during the inspection process annually.

The doctrine of federal preemption, at its core, is a means to prevent races to the bottom; it's a good thing that states can't compete for the business of slaughter houses by offering lower and lower standards for cruelty (or lower environmental standards for factories and powerplants, lower minimum wages for corporations, etc.)

The California statute in this instance, however, was just the opposite: a state legislating against the interest of business in favor of consumers and, ironically, the consumed. Application of the preemption doctrine absent even a cursory discussion of the harm caused by the California statute - the Court identified none - was inappropriate.

Read the Opinion.

Long v. Tommy Hilfiger, 11-1554 (3d Cir., 2012)

noreply@blogger.com (Larkin) — Wed, 01 Feb 2012 18:33:00 +0000

Under the Fair and Accurate Credit Transactions Act, merchants who print credit card numbers on customers' receipts are required to truncate the card number. They are also not permitted to print the card's expiration date. Where a merchant fails to truncate the card number or prints the expiration date in willful violation of the Act's proscriptions, it is subject to statutory damages and to attorneys' fees; where a merchant's failure is merely the result of an erroneous reading of the Act, however, plaintiffs' damages are limited to recovering actual damages.

On October 29, 2009, Long bought a tie from a Tommy Hilfiger store for $24.99. The receipt included the month, but not the year, of his card's expiration. Although he suffered no damages, he nevertheless filed suit.

The Third Circuit conceded that merchants are required to omit expiration dates entirely, and are not permitted to truncate them. This is so, the Court reasoned, because, taking Hilfiger’s argument to its logical conclusion, a merchant would not violate FACTA so long as it redacted even a single number from either the month or year of the card’s expiration date. Furthermore, different merchants could each choose to redact different portions of the expiration date, making it possible to ascertain the entire expiration date from multiple receipts. This, of course, would be inconsistent with the statute’s objective of preventing identity theft and a result certainly not intended by Congress.

Nevertheless, the Court held that Hilfiger's error was not objectively unreasonable, and therefore willful. As such, Long's recovery was limited to his actual damages -- in other words, nothing.

In describing the challenged transaction, however, the Court took care to put the purchased item -- "men's neckwear" in scare quotes. It also carefully re-printed the receipt; a decision that not-so-tacitly dismisses the privacy complaint that should have motivated a more legitimate claim under FACTA.

Read the Opinion.

Maples v. Thomas, 565 U.S. ___ (2012)

noreply@blogger.com (Larkin) — Mon, 23 Jan 2012 11:00:00 +0000

In 1997, Cory R. Maples was tried for the murder of Stacey Alan Terry, and Barry Dewayne Robinson. He was represented by two state-appointed attorneys, neither of whom had penalty-phase capital litigation experience. Compensation for both attorneys was capped at $1,000 plus $40 per hour of in-court time. He was found guilty and sentenced to death. Maples appealed, and his conviction was affirmed by the state intermediate and supreme courts.

Maples then filed a collateral attack on his conviction, alleging that his inexperienced and ineffective ill-compensated attorneys provided ineffective assistance. At the time, however, Alabama did not appoint attorneys for collateral appeals, even in capital cases. Instead, Maples was represented by pro bono attorneys from the New York office of Sullivan & Cromwell.

The trial court denied Maples collateral petition for post-conviction relief. Before an appeal was filed, however, his pro bono attorneys left the firm; one for a federal clerkship, and another for the European Commission in Belgium. Neither attorney informed Maples of their departure, and neither attorney petitioned the trial court for leave to withdraw as counsel.

Because Maples' attorneys had left the firm, they failed to receive notice of the trial court's denial of relief, and never filed an appeal. Instead, Maples' time for appeal lapsed, and his right to appeal was waived. The state attorney general's office contacted Maples directly, and informed him of the waiver, but pointed out that federal habeas relief continued to be available to him for just four weeks. If he did not timely file for habeas relief he would, presumably, be executed.

Maples' family received a copy of the AG's letter and contacted Sullivan Cromwell. Prompted by their call, three new Sullivan Cromwell attorneys filed their appearances with the Alabama trial court -- although they were not barred in Alabama -- and asked the trial court to reissue it's order denying Maple's collateral appeal and, thereby, restarting the clock on his time to appeal. The trial court declined to engage in what it described as "subterfuge." The intermediate appellate and state supreme courts affirmed.

Maples then sought habeas relief in the federal courts. The District Court concluded, however, that he had forfeited his right to challenge effective assistance of counsel in federal court by failing to properly present the issue to each state court -- that the issue was unexhausted, and therefore procedurally defaulted. Although the District Court recognized that Maples could overcome that default if he demonstrated "cause," it held that ineffective assistance of collateral-appellate counsel was insufficient to meet that burden. A divided panel of the Eleventh Circuit affirmed.

The Supreme Court granted certiorari and, in an opinion by Justice Ginsburg, reversed. The Court acknowledged that in prior cases it had held that simple ineffectiveness cannot constitute "cause" sufficient to excuse a defaulted claim. Nevertheless, the Court concluded that default caused by a total abandonment of counsel is an abrogation of the agency relationship between attorney and client and, as a result, the default cannot be attributed to the petitioner himself. As such, they remanded the case with instructions to consider Maples' ineffectiveness claims on their merits.

The big losers in this case, however, were neither Maples nor the Alabama Attorney General's office: they were Sullivan & Cromwell. The firm was named a total of 56 times in a 40 page opinion. The attorneys who failed to give notice of their withdrawal were also identified by name, as well as the three new Sullivan Cromwell attorneys who tried to convince the trial court to engage in a "subterfuge" in order to spare the firm's good name.

In spite of the Court's apparent shock at what occurred in this case, defense counsel's withdrawal without leave is relatively common. This is particularly true where defendants pay their legal fees in installments, and fail to make a payment midway through trial.

It's tough to fault attorneys who refuse to represent clients that have stopped paying them. After all, you wouldn't expect your plumber or carpenter to finish a job if you told them that you had decided not to pay. The Maples decision, however, only underscores a common theme among both the federal and state courts: when an attorney accepts a criminal representation, he is expected to complete it. With lives on the line, it's hard to argue with the hard-nosed ethics of that position. By naming names, moreover, Justice Ginsburg has decided to give that policy teeth.

Read the Opinion.

Golan v. Holder, 565 U.S. ___ (2012)

noreply@blogger.com (Larkin) — Wed, 18 Jan 2012 19:55:00 +0000

In 1989 the United States became a signatory to the Berne Convention for the Protection of Literary and Artistic Works. This treaty required that signatories provide copyright protection to foreign authors on par with the protections afforded their domestic counterparts. The U.S. Senate ratified the treaty, but Congress' implementation of the Convention's provisions was restricted to prospective works. Thus, because a large body of foreign work had been uncopyrighted prior to ratification of the Convention, many well-known works of art - including the Shostakovitch Symphonies and Prokofiev's Peter and the Wolf - remained in the public domain.

In 1994, however, the Uruguay round of multilateral trade negotiations produced the World Trade Organization and the Agreement on Trade-Related Aspects of Intellectual Property Rights. In conjuction, these two treaties provide for potent enforcement mechanisms against nations that failed to, inter alia, give retrospective application to the Berne Convention.

The United States joined the WTO and TRIPS. Congress then passed 17 U.S.C. § 104A, which provided retrospective copyright protection to foreign works created before Senate ratification of the Berne Convention. This had the effect of taking many previously unprotected works, including the Shostakovitch Symphonies and Peter and the Wolf, out of the public domain. As a result, a collection of "orchestra conductors, musicians, publishers, and others" sued in the District Court for the District of Colorado, where they alleged that Section 104A violated both the Copyright Clause and the First Amendment to the United States Constitution.

Justice Ginsburg wrote for the majority. Although the petitioner's first argument was couched in the guise of a Copyright Clause challenge, she recognized that the thrust of their complaint was, in fact, a Fifth Amendment challenge to a purportedly unconstitutional taking. In other words, Justice Ginsburg took the petitioner's argument to be that ownership rights should vest in the public once works fall into the public domain, and that Congress cannot restore copyright to authors without taking from that public. To counter this point, she cited a number of historical examples of such takings that had either gone without judicial scrutiny, or which had been held to pass constitutional muster.

Next, the majority rebutted the First Amendment argument by observing that Congress had not restricted petitioner's expression. Instead, Justice Ginsberg observed:

The question . . . is whether would-be users must pay for their desired use of the author's expression, or else limit their exploitation to "fair use" of that work. Prokofiev's Peter and the Wolf could once be performed free of charge; after [§ 104A] the right to perform it must be obtained in the marketplace. This is the same market-place, of course, that exists for the music of Prokofiev's U.S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U.S. concertgoers.

Based on these principles, the majority declined to invalidate Section 104A.

Justices Breyer and Alito dissented. Their historical analysis reached back further than the majority's, to England's original copyright statute, and concluded that the framers were uncomfortable with the institution of monopolies of any kind, including copyright.

The dissent also raised the point that affording copyright to previously public domain foreign works imposes significant transactional costs to find the copyright holder and negotiate - often in a foreign language - for access to it. This creates a body of work that literally cannot be enjoyed at any price or, in economic terms, a deadweight loss.

Read the Full Opinion.

Totimeh v. Attorney General, Nos. 10-3939 & 11-1998 (3d Cir. 2012)

noreply@blogger.com (Larkin) — Wed, 18 Jan 2012 15:29:00 +0000

George Totimeh was admitted to the United States as a B-1 visitor in 1980. He moved to Minnesota to attend a local university and, in 1983, he was granted the status of a lawful permanent resident.

In 1988, less than five years after his final adjustment in status, Totimeh pled guilty to criminal sexual conduct in the fourth degree (the specifics of the crime are not included in the opinion, and the filings were not available on Westlaw.) As a result of his conviction, Totimeh was required to register as a sex-offender when Minnesota passed its Megan's Law statute 1995.

In 1998, Totimeh moved to a friend's house without registering his change of address. This violated his reporting requirements and, later that year, he pleaded guilty to violations of the Minnesota Megan's Law statute.

The Department of Homeland Security sought to have Totimeh deported on two alternative grounds. First, ICE argued that under 8 U.S.C. § 1227(a)(2)(A)(i), the 1983 adjustment date qualified as his "date of admission" and, therefore, his 1988 conviction for criminal sexual conduct - clearly a crime of moral turpitude ("CMT") - was a CMT within five years of the date of his admission. Second, DHS argued that Totimeh's conviction for failing to register his new address was also a CMT, and therefore, under 8 U.S.C. § 1227(a)(2)(A)(ii) he was removable because he committed two crimes of moral turpitude not arising out of a single incident.

The Immigration Judge agreed, and ordered Totimeh's removal. He appealed, and the Board of Immigration Appeals affirmed. He appealed to the Third Circuit Court of appeals, where the lower court decisions were reversed.

First, the Third Circuit considered whether violation of Minnesota's Megan's Law statute is, in fact, a crime of moral turpitude. Instead, the Court held that. . .

. . . the statute does not regulate a crime that of itself is inherently vile or intentionally malicious. Sexual assault, child abuse, and spousal abuse are no doubt inherently vile and elicit strong outrage. But this outrage is directed at the underlying crimes that resulted in the passage of offender registration statutes such as that in Minnesota; the independent act of failing to register or update a registration as a predatory offender is not, as a category of crime, an inherently despicable act.

Next the Court considered whether Totimeh's 1983 date of adjustment could properly be considered his "date of admission" where he had previously been admitted to the country as a B-1 visitor. Based on prior opinions from the BIA, the Third Circuit concluded that:

Stated simply, once an alien is in the United States legally, the five-year clock starts. Later adjustment of the reason that the alien may stay does not restart a clock that never stopped.

On these two bases, the Third Circuit vacated the order of removal and remanded the matter to the BIA to enter an appropriate order.

Read the Opinion.

Commonwealth v. Person, 2012 Pa. Super. 6

noreply@blogger.com (Larkin) — Mon, 16 Jan 2012 19:34:00 +0000

In March of 2009, the Philadelphia police received a tip that Person was selling drugs out of a home at 146 North Dearborn Street. The police set up surveillance at that location and observed him conduct hand-to-hand transactions and, thereafter, arranged a controlled-buy. At the buy, an undercover officer purchased $20 worth of marijuana from him.

Based on their observations and the buy, the police successfully applied for a warrant to search the building where Person kept his drugs. The police set up a second controlled-buy, after which they attempted to execute the warrant. When the police opened the front door, however, Person fled into a second-floor bedroom, where he hid with two women and a child.

Person was apprehended and arrested. A search of his person revealed the buy money, marijuana packaged for resale, and a cellular telephone. A search of the building revealed a digital scale, additional marijuana, and, in the kitchen, a sawed-off shotgun. Person was placed under arrest and charged with violations of the Drug Act, possession of an offensive weapon, criminal use of a communication facility, and possession of an instrument of crime.

He was convicted, and sentenced to a mandatory minimum sentence of five years, pursuant to 42 Pa.C.S. § 9712.1. Under that statute, any person. . .

. . . who is convicted of a violation of section 13(a)(30) of the . . . Controlled Substance, Drug, Device and Cosmetic Act, when at the time of the offense the person or the person’s accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person’s accomplice or within the actor’s or accomplice’s reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.

Id. at 4712.1(a). The applicability of the firearms mandatory is determined at sentencing. There, the trial court considers any evidence adduced at trial, as well as any additional evidence presented at the sentencing itself. The totality of this evidence need only establish the applicability of the firearms mandatory by a preponderance of the evidence. This is the least demanding standard known to the law. Where the evidence of the firearms mandatory meets this low threshold, the trial court is required to sentence the defendant to at least the mandatory minimum term, and has no authority to impose a lower sentence.

Person appealed, and the Superior Court vacated his sentence. In an opinion by Judge Bender, the Court observed that there was no evidence that Person lived in the building where he was apprehended, that at least three other people had access to kitchen space, that he had never been seen in the kitchen by police, and that the kitchen was a common area. As a result, Judge Bender concluded that control of the firearm could not be imputed to Person, even constructively. Judge Allen concurred in the result.

Starting in 2008, the Superior Court began to give expansive scope to the firearms enhancement statute. For instance, in Commonwealth v. Sanes, the Court concluded that, although neither the defendant nor the woman who owned the apartment where he was arrested, were in physical control of the guns found in the apartment. Nevertheless, the Court allowed the mandatory minimum sentence to stand, because the guns were in "close proximity" to the seized contraband. In that case, close proximity was held to mean six-to-eight feet outside the room where the drugs were stored.

The next year, in Commonwealth v. Zortman, the Superior Court expanded the statute further, and concluded that "close proximity" encompasses drugs and guns found anywhere in the same residence.

The instant case is a departure from the lenient reading that the Superior Court has previously given Section 9712.1. In prior cases, the Court has read the possession requirement of the statute to be an alternate element; thus, in Sanes and Zortman, the mandatory applied if a defendant or his accomplice (1) was in possession of a firearm, or (2) the firearm is in close proximity to drugs. Person, however, reads the statute to require that the defendant be in possession of the firearm, and also that the firearm be (1) visible, (2) concealed, (3) within the defendant's reach, or (4) in close proximity to the controlled substance.

The Person decision seems, to me, to be a strained reading of the statute and, as noted, a departure from prior published decisions from the Superior Court. (Zortman, notably, was affirmed by the Supreme Court of Pennsylvania.) I have, however, encountered the Person reading of the statute in a previous, unpublished decision. (That case is currently awaiting an allocatur decision from the Pennsylvania Supreme Court.) As such, the current state of law on this issue is, at best, unsettled.

Read the Opinion.

Perry v. New Hampshire, 565 U.S. ___ (2012)

noreply@blogger.com (Larkin) — Thu, 12 Jan 2012 00:13:00 +0000

A witness saw a person she could only describe as a black male breaking into cars outside of her apartment building. She called the police. When the police arrived, they found Perry in a parking lot with a car with a smashed window, standing next to a baseball bat, holding two car stereos. Perry claimed he found the stereos lying on the ground.

The witness then came outside to check her car. She identified herself to police as the caller, and was asked for a description of the person she had seen. Instead, she pointed to Perry. Months later, however, she was unable to pick him out of a photo-array.

Prior to his trial, Perry moved to suppress the witness' identification, arguing that the show-up in the parking lot was improperly suggestive. The trial court denied the motion and, based on the the strength of the ID by the witness, as well as the circumstantial evidence discovered by police, Perry was convicted. He appealed unsuccessfully and, ultimately, was granted certiorari to the Supreme Court of the United States.

Justice Ginsburg, writing for a seven justice majority, noted that prior Supreme Court precedent required a two-step analysis: first, the Court considers whether the police manufactured an unnecessarily suggestive identification procedure; if so, the Court next considers whether the improper procedure so tainted the identification as to make it unreliable, and therefore inadmissible.

Here, the majority held, the initial identification was not manufactured by the police at all. Instead, the witness left her building and saw defendant being held at the scene of the crime without being asked to do so. Having decided the police conduct was not improper, there is no need to reach the second inquiry.

This does not, the majority stressed, leave the defendant without a remedy. On the contrary: the proper mechanism for defendants to challenge an unreliable, but not improper, identification, is vigorous cross-examination.

Justice Thomas concurred in the decision, but would have held that the two-step analysis itself was unnecessary. Justice Sotomayor dissented, and would have held that unreliable eyewitness testimony, regardless of the cause of the unreliability, is itself a violation of due process.

Read the Opinion.

Commonwealth v. Baker, 530 MAL 2011 (Pa. 2011)

noreply@blogger.com (Larkin) — Mon, 09 Jan 2012 17:57:00 +0000

On January 6, 2011, the Supreme Court of Pennsylvania granted allocatur to determine whether a "25-year mandatory minimum sentence of imprisonment imposed under 42 Pa.C.S. § 9718.2 violates Article I, Section 13 of the Pennsylvania Constitution as it is grossly disproportionate to the crime?"

Baker was originally charged with possession of child-pornography in October of 2001. He pleaded guilty, and was sentenced to 60 months of intermediate punishment. He completed his sentence and, just four months later, he was again found to be in possession of child pornography. He was tried for his second offense, and convicted in 2008. As a result of his prior conviction, the trial court was required to sentence Baker to an aggregate term of imprisonment of 25-to-50 years. Baker appealed and, in a published opinion, the Superior Court affirmed. He petitioned for allocatur and the Supreme Court of Pennsylvania granted it, limited to the question above.

The language of the question, as accepted by the state Supreme Court, suggests what may be an inclination to reverse the Superior Court on this issue, and hold that the mandatory minimum sentence is indeed unconstitutional. This, however, would be an extraordinary departure from well-settled eighth amendment law.

Pennsylvania's constitution includes a provision that is essentially identical to the Eighth Amendment to the United States Constitution, and our courts treat the two constitutional provisions as equivalent. Federal law is therefore instructive on the relevant question, which is whether defendant's sentence is disproportionate to the crime he committed.

Federal courts, however, have indicated that possession of child pornography is an extremely serious offense. In United States v. Kiderlen, for instance, the Eighth Circuit upheld a sentence of twenty-years for distributing child-pornography. In a one paragraph dismissal of the defendant's Eighth Amendment challenge, the Court underscored the fact that "the distribution of child pornography is 'a grave offense' that victimizes the children depicted in the pictures." This judgment by the federal judiciary is seconded by the United States Congress imposition of a mandatory ten-year jail sentence for recidivist offenders.

Added to this background is the fact that the Eighth Amendment is grounded on the "evolving standards of decency" that we embrace as a society. In other words, Baker has to convince the Supreme Court that his second conviction for possession of child pornography -- just four months after his first sentence ended -- isn't that big of a deal. This doesn't bode well for Baker's appeal.

It's hard to prognosticate about which way a court will jump based on the question it poses. Whatever happens here, though, will have interesting effects on Pennsylvania's use of mandatory minimum sentences in the future.

Commonwealth v. Goodsin, 28 WAP 2010 (Pa. 2011)

noreply@blogger.com (Larkin) — Fri, 23 Dec 2011 16:31:00 +0000

For the holidays I have opted to post, in its entirety, Justice Eakin's rhyming opinion from Commonwealth v. Goodsin. Have a Merry Christmas everyone!

-The Editor.

In January, 2001, appellant’s car was in a collision.
His insurer totaled the aging New Yorker, then made a just division
of the value of the insurance claim, sending $6,289 to the lender;
the balance of $135, to appellant they made tender.
And thus the matter terminated, or so one might have thought,
but that was not to be, when Goodson’s later schemes were caught.

Appellant was unhappy with his meager share, we guess —
comparing the two payouts, his disbursement was much less —
so six months later, in July, Mr. Goodson would appear
at a branch of First National Bank, and there he made it clear
that he’d a check made out to him, which he innocently presented
to open a new bank account — “from State Farm,” he represented.

The check was numbered familiarly, same as the prior one
for $135 that he’d been given when this saga’d just begun.
And it was for $6,289, a unique and memorable amount.
The bank obligingly took the check and opened a new account.
“Welcome our new customer!” a greeting that we’d bet
the bank would come to think of with a measure of regret.

Never thinking that appellant’s check might have a minor flaw
(like perhaps being a forgery), it allowed him to withdraw
several thousand dollars and, days later, a few thousand more;
he’d taken over $5,000 before the bank would learn the score.
There was no evidence appellant seemed the least bit nervous,
having picked a branch with such unmatched customer service.

Of course the crime soon came to light, as agents of State Farm
refused to pay the check he’d forged, which forestalled further harm:
“It’s not from us, there is no claim, the check we cannot honor!”
And appellant’s scheme was thus undone — he knew he was a goner.
When braced, he paid the money back, a mitigating solution,
but despite this act, the Commonwealth commenced its prosecution.

Convicted of the forgery, insurance fraud, and theft,
he admits the first and last, but denies the charge that’s left.
He claims the sentence for insurance fraud is most certainly amiss —
he says “I may be guilty, but I’m just not guilty of this.
My sentence is inappropriate — undo the wrongful conviction.”
And in the end, seeks this relief from our appellate jurisdiction.

Our standard of review’s de novo; our scope will be plenary.
And upon reviewing what Goodson’s done, it takes not long to see
his argument is legally sound, its merits clearly true,
and so it falls to us to expeditiously undo
the sentence for insurance fraud that was affirmed below
for the elements just aren’t made out, a closer look will show.

We find the elements of the statute are not proved in Goodson’s case.
No insurance claim was instituted, by writing or face-to-face.
Goodson gave nothing to an insurer, and what he gave the bank exec
was neither “statement” nor “insurance claim” — it simply was a check.
That’s not to say appellant’s acts are free from any blame,
it’s just they’re neither part nor parcel of an insurance claim.

The prosecution says the check is linked “inexorably”
to the January claim, by check amount, its number, and payee.
Though such particulars indicate some shared genealogy
‘tween January and July, still they’re branches of a different tree.
His first claim was legitimate and, resemblances notwithstanding,
he later passed a counterfeit check, no insurance coverage demanding.

Just because the bogus check shows an insurance company’s name
doesn’t make the crime insurance fraud — it’s simply not the same.
A check may seem a statement that State Farm owed him the dough
but that assumption by the bank isn’t false insurance info,
or evidence that’s material to a claim involving State Farm —
there’s no new claim and the old claim’s gone — this was a different harm.

One must ask when parsing the crime, what was the legislative intent?
In creating such a focused crime, is counterfeiting what they meant?
Were they targeting specific fraud unique to insurance firms,
or is this a broad and sweeping crime, a can of felonious worms?
It is the former, being so specific — who must give what to whom —
and dressing up the facts won’t make them fit in this costume.

Because he made no insurance claim, nor a proffer to an insurer,
he didn’t commit insurance fraud, and neither judge nor juror
can to the contrary rightly find, even if they’d like to.
Two crimes are strikes, but not the third — the count is but strike two,
and while those strikes are such that he’s not going to walk,
on this last pitch we have no choice but to call a figurative balk.

Sentenced on the other crimes, he surely won’t go free,
but we find he can’t be guilty of this final felony.
Convictions for the forgery and theft are approbated —
the sentence for insurance fraud, however, is vacated.
The case must be remanded for resentencing, we find,
so the trial judge may impose the result he originally had in mind.

What Goodson did is serious, but doesn’t comprise this crime —
there’s simply no rhyme nor reason for it, for these reasons (and in rhyme).

Read the Opinion.

In the Interest of Jane Doe, No. 1 AB

noreply@blogger.com (Larkin) — Thu, 22 Dec 2011 21:24:00 +0000

Early in 2010, Jane Doe - a minor - sought an abortion. Pursuant to Pennsylvania's Abortion Control Act, 18 Pa.C.S. § 3201 et seq., she was required to first obtain parental consent or, in the alternative, demonstrate to a court that she was "mature and capable" of giving independent consent. She chose the latter alternative.

Doe explained to the trial court that she was just three months shy of her eighteenth birthday, that she was a high school senior with average grades, that she planned to attend college, and that she aspired to be a lawyer. She testified that she had been examined by a physician who confirmed her pregnancy, who explained the abortion process, and also told her about the risks and complications associated with abortions. She told the Court that although she was aware that there were agencies that could assist her, she would not be able to provide adequate care for her child, if carried to term, because she was unemployed and, also, because she intended to attend college in the fall.

Doe also testified that she had not told her mother about her pregnancy or her planned abortion, because she feared that her mother would "throw her out" if she did. When the trial court asked her about adoption, she agreed that it was an alternative, but stated that she was not "physically, mentally, or emotionally ready for this baby."

The trial court denied Doe's application. The Court reasoned that Doe was not sufficiently mature and capable to consent to an abortion because (1) she had not told her mother of her intentions, and (2) the abortion provider had only provided her with written materials about the procedure that day - technically complying with the legal requirements, but placing Doe in a position where she had to reevaluate her previous decision while in court.

Doe appealed, and the Pennsylvania Superior Court affirmed. Doe successfully filed for allowance of appeal to the Supreme Court of Pennsylvania.

The Supreme Court noted that this was a question of first impression. As an initial matter, it held that. . .

. . . an appellate court reviewing a denial of a petition for judicial authorization for an abortion should give deference to the facts found by the lower court where they are supported by competent evidence of record; review pure questions of law under the de novo standard of review without affording deference to the trial court’s legal conclusions, and review under an abuse of discretion standard the trial court’s ultimate determination as to whether the minor is mature and capable of giving informed consent to an abortion.

The Court then went on to conclude that:

The Act states with unmistakable clarity that in order for a physician to legally perform an abortion on a minor, the minor must obtain the consent of one parent or, alternatively, obtain judicial authorization. Id. § 3206(a), (c). Neither parental consultation nor consent is required if the minor is seeking judicial authorization for an abortion, as the Act expressly permits the minor to elect not to seek the consent of her parents. Indeed, the purpose of a judicial bypass proceeding is to determine whether the minor possesses the maturity/capacity to give independent informed consent, as every minor who seeks judicial authorization for an abortion does so because she lacks or elects not to seek parental consent. Thus, a minor’s failure to consult with or obtain the consent of her parent cannot serve as the basis for denying a petition for judicial authorization.

On this basis, the Court vacated the decision of the Superior Court. Because Doe was no longer pregnant, and the issue was technically moot, the Court declined to vacate the decision of the trial court.

Read the Opinion.

Reilly et al v. Ceridian, 11-1738 (3d Cir. 2011)

noreply@blogger.com (Larkin) — Tue, 20 Dec 2011 16:02:00 +0000

Ceridian is a payroll processing firm. To process its commercial business customers' payrolls, Ceridian collects information about its customers' employees. This information may include employees' names, addresses, social security numbers, dates of birth, and bank account information.

Reilly and Pluemacher were employees of the Brach Eichler law firm, a Ceridian customer, until September 2003. Ceridian entered into contracts with Appellants' employer and the employers of the proposed class members to provide payroll processing services.

On or about December 22, 2009, Ceridian suffered a security breach. An unknown hacker infiltrated Ceridian's Powerpay system and potentially gained access to personal and financial information belonging to Appellants and approximately 27,000 employees at 1,900 companies.

On October 7, 2010, Appellants filed a complaint against Ceridian, on behalf of themselves and all others similarly situated. Appellants alleged that they: (1) have an increased risk of identity theft, (2) incurred costs to monitor their credit activity, and (3) suffered from emotional distress.

Ceridian filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) for lack of standing and failure to state a claim. The District Court granted Ceridian's motion, holding that Appellants lacked Article III standing. Reilly and Pluemacher appealed.

The Third Circuit Court of Appeals concluded that Appellants' allegations of hypothetical, future injury did not establish standing under Article III.

Article III limits courts' jurisdiction to actual cases or controversies. One element of this bedrock requirement is that plaintiffs must establish that they have standing to sue. It is the plaintiffs' burden, at the pleading stage, to establish standing. Although general factual allegations of injury resulting from the defendant's conduct may suffice, the complaint must still clearly and specifically set forth facts sufficient to satisfy Article III.

The question of standing is whether the litigant is entitled to have the court decide the merits of teh dispute or of particular issues. Constitutional standing requires an injury-in-fact, which is an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. An injury-in-fact must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is distinct and palpable, as distinguished from merely abstract, and the alleged harm must be actual or imminent, not conjectural or hypothetical.

Allegations of possible future injury are not sufficient to satisfy Article III. Instead, a threatened injury must be "certainly impending," and proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all. A plaintiff therefore lacks standing if his injury stems from an indefinite risk of future harms inflicted by unknown third parties.

In this increasingly digitized work, a number of courts have had occasion to decide whether the "risk of future harm" posed by data security breaches confers standing on persons whose information may have been accessed. Most courts have held that such plaintiffs lack standing because the harm is too speculative. The Third Circuit agreed with the holdings in those cases. Here, no evidence suggests that the data has been - or will be - misused. The present test is actuality, not hypothetical speculations concerning the possibility of future injury. Appellants' allegations of an increased risk of identity theft resulting from a security breach are therefore insufficient to secure standing.