PorzioAppealLaw

A Partial Victory For A Pro Se Prisoner In The Third Circuit On His Eighth Amendment Claim

We see a lot of opinions issued by federal appellate courts in which a prisoner representing himself or herself challenges some policy, procedure, or action relating to his or her confinement.  Far more often than not, the District Court rejects the plaintiff’s claim and the appellate court affirms.  Thus, today we are writing about Mutschler v. SCI Albion, No. 10-4242 (3d Cir. Sept. 27, 2011), because the pro se plaintiff convinced the Third Circuit to reverse a part of the District Court’s ruling that had granted the defendants’ motion to dismiss.

Underage Drinking Conviction Overturned Because: 1) Sniff Test For Alcohol Insufficient; 2) Miranda Violations; and 3) Improperly Excluded Evidence

In State v. Koch, No. A-0602-10 (App. Div. Sept. 26, 2011), the defendant was convicted in municipal court of underage consumption of alcohol.  The defendant was fined $250 and assessed $33 in court costs.  The defendant appealed to the Law Division, which affirmed following a trial de novo.  The defendant then appealed that judgment, and the Appellate Division reversed on several grounds. 

On May 8, 2009, the defendant, an eighteen-year-old high school student, went to a house party with his girlfriend, Ashley, who was nineteen.  A neighbor complained to the police that partygoers were smoking marijuana and urinating on his lawn.  There was no dispute that alcohol was being consumed by partygoers in and around the home. 

Appellate Division Rejects Woman’s Argument That She Has Right To Be Topless On Beach

In June 2008, the defendant, a woman, was sitting on a public beach in Spring Lake and took off her bathing suit top.  State v. Feeley, No. A-0115-10 (App. Div. Sept. 14, 2011).  A police officer approached her and asked her to put the top back on.  The defendant declined, at which time the police officer arrested her.  The defendant was brought to police headquarters and was given a t-shirt.  She was processed and released.  Shortly thereafter, the police received a call about a topless woman at an intersection near the police headquarters.  The police responded and again arrested the defendant.  The t-shirt that the police gave to the defendant was found at the door of the police headquarters.  The defendant was charged with various offenses, including two violations of the town’s public nudity ordinance.

Constitutional Challenge To Section Of New Jersey Auto Insurance Coverage Law Rejected

Automobile insurance rates are a sore subject for New Jersey drivers.  Several different reforms have been enacted over the past decades, and in 2003 Governor James McGreevey signed into law a reform package that helped to increase competition in the insurance market and reduce insurance plan prices.  Auto insurance has been once again been in the news recently, as Governor Chris Christie has announced plans to try to deal with the rising costs associated with personal injury protection ("PIP").  This post is not about the history of automobile insurance in New Jersey or what will happen with potential PIP reform; rather, it is about a Third Circuit decision in which the court rejected the plaintiff's argument that one part of New Jersey's automobile insurance law, N.J.S.A. § 17:28-1.3, was unconstitutional.  Avicolli v. Government Employees Insurance Co., No. 10-4345 (3d Cir. July 29, 2011).

Resident Does Not Have Privacy Expectation In Common Areas Of Locked, Multi-Unit Apartment Building

In United States v. Acosta, 965 F.2d 1248 (3d Cir. 1992), the Third Circuit held that a resident of an unlocked, multi-unit apartment building did not have an objectively reasonable expectation of privacy in the common areas of the building.  Recently, the Third Circuit was confronted with the question of whether a locked exterior door provided a resident with a reasonable expectation of privacy.  United States v. Correa, ___ F.3d ____ (3d Cir. 2011).  Agreeing with several other circuits, the Third Circuit held that a resident does not have an objectively reasonable expectation of privacy in a multi-unit apartment building's common areas even if the building has a locked exterior door. 

Third Circuit Rejects Challenge To Patient Protection and Affordable Care Act

Since the Patient Protection and Affordable Care Act ("Act") was passed by Congress and signed into law in March 2010 by President Obama, it has been subject to several legal challenges, and various circuits throughout the country have ruled on the legality of different parts of the Act.  Last week, the Third Circuit rejected a challenge to the Act's individual mandate because the plaintiffs did not have standing to challenge the law.  New Jersey Physicians, Inc. v. President of the United States, ____ F.3d ____ (3d Cir. 2011).

Iraq Veteran’s Claim Against Kellogg Brown & Root Based On His Exposure To Sodium Dichromate Rejected

The plaintiff, a former Sergeant in the United States Army, was sent to Iraq as part of Operation Iraqi Freedom.  Bootay v. KBR, Inc., No. 10-4028, (3d Cir. July 13, 2011).  In April 2003, the plaintiff helped to secure the Baghdad Airport.  After that, he was sent to the Qarmat Ali Water Treatment Plant (“Qarmat Ali”).  He was there for four days, during which time he saw an orange powder throughout the plant.  Subsequently, he came to believe that the powder was sodium dichromate.  Before Operation Iraqi Freedom began, Iraqi workers regularly used sodium dichromate at Qarmat Ali. 

Third Circuit Agrees With Pennsylvania Supreme Court That State Law Preempts County’s Sex Offender Law

Allegheny County in Pennsylvania passed an ordinance entitled “Residence Requirements; Registered Sex Offenders” that limited the places where sex offenders could reside within the county.  Fross v. County of Allegheny, No. 09-2036 (3d Cir. July 19, 2011).  The ordinance banned sex offenders from residing within 2,500 feet of schools, child care facilities, community centers, recreation facilities, and public parks.  Six individuals who had been convicted of a sex offense and had to register as a sex offender under Pennsylvania’s Megan’s Law challenged the county ordinance on various federal grounds, and they also asserted that Pennsylvania law preempted the ordinance.  The District Court for the Western District of Pennsylvania granted summary judgment to the sex offenders.  The District Court held that Allegheny’s ordinance conflicted with Pennsylvania law that established a statewide system for monitoring sex offenders and was therefore preempted.  Fross v. County of Allegheny, 612 F. Supp. 2d 651 (W.D. Pa. 2009).

New Jersey Supreme Court Adds Teeth To The Rule Of Three

Under the New Jersey Constitution, civil service appointments “shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive.”  Those merit and fitness principles are implemented by the Civil Service Act and its regulations.  When an appointing authority decides, as it can pursuant to the Civil Service Act, to choose a lower-ranked candidate for a position instead of one who ranked higher on a competitive examination, the authority must report to the Department of Personnel (“DOP”) to explain why it did so.  The reason for the report is to ensure that the authority did not abuse its appointing power.  In IMO Foglio, ___ N.J. ___ (2011), the Supreme Court examined the detail that must be provided by the appointing authority when passing over a higher ranked candidate.  In doing so, the Court rejected the authority’s “boilerplate” explanation because it was “equally applicable to any bypass case and utterly lacking in specific explanatory language[.]”

Third Circuit Upholds Dismissal Of Marine’s Lawsuit Against Congressman Murtha Arising From Haditha Incident

On November 18, 2005, the plaintiff, a Marine Lance Corporal, and seven other Marines engaged in a clash with Iraqis in Haditha, Iraq.  Sharratt v. Murtha, No. 10-2225 (3d Cir. July 14, 2011).  This clash, referred to as the “Haditha incident,” resulted in the deaths of fifteen Iraqis. 

In May 2006, United States Congressman John Murtha, who represented Pennsylvania’s 12th Congressional District and was the then-Ranking Member of the House Appropriations Subcommittee on Defense, made several statements to the national media about the Haditha incident.  (Congressman Murtha died on February 8, 2010, during the pendency of this litigation.)  For example, he claimed that the Marines overreacted because of the pressure that was on them and that they killed innocent civilians.  He also compared the Haditha incident to My Lai, an incident from the Vietnam War in which citizens were killed by United States soldiers.  Murtha’s statements were reported in several newspapers and were broadcast on national television and radio stations.