Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Thug Life: Cocaine, Marijuana Bars to Asylum

Zach Melloy
Juris Doctor Candidate, 2016
Valparaiso University Law

In the context of U.S. immigration law, seekers of asylum or refugee status must demonstrate “persecution.”Persecution involves three essential elements: the petitioner must establish harm, that the harm was authorized by a foreign government, and that the harm stems from race, religion, nationality, political opinion, or membership of a particular social group.

Jonathan Castillo-Ibarra, a 24-year-old citizen of El Salvador, applied for a withholding of removal and protection under the United Nations Convention Against Torture based on his former membership of Mara Salvatrucha, better known as MS-13.

Castillo-Ibarra originally entered the United States with a relative when he was 12 years old. He was placed in immigration proceedings, and in 2005 he received a final order of removal after failing to depart voluntarily. Instead of heading back to El Salvador, however, Castillo-Ibarra remained in the U.S. and became a member of MS-13. He was found in Indiana in 2011 with 21 grams of cocaine on his person, and was subsequently removed back to El Salvador.

Two months later he was found in Indiana again, and this time was arrested for possession of marijuana. This arrest led to Castillo-Ibarra’s previous cocaine charge being reinstated, and in December 2012 he was sentenced to 20 years imprisonment for dealing cocaine.

While in prison, the Department of Homeland Security contacted Castillo-Ibarra and notified him that he would be removed back to El Salvador pursuant to his 2005 order. Castillo-Ibarra, who had multiple tattoos indicating his membership in MS-13, stated that he was afraid to return to El Salvador because he had quit the gang and would likely be murdered in retaliation. His aunt had already been threatened and beaten, and Castillo-Ibarra himself had also been threatened. He stated that the police would likely not help him in El Salvador.

During an interview with an asylum officer, the officer concluded that Castillo-Ibarra did not have a reasonable fear of persecution or torture because no one had actually tried to harm him in El Salvador, and he couldn’t link possible gang retaliation with the government. Not only that, but an Immigration Judge also found that because Castillo-Ibarra had been convicted of a “particularly serious crime” (cocaine trafficking), he was not eligible to remain in the United States. The Board of Immigration Appeals agreed, and as a result Castillo-Ibarra filed a petition for deferral under the Convention Against Torture.

The Seventh Circuit Court of Appeals looked over Castillo-Ibarra’s petition, but eventually sided with the Immigration Judge and the Board of Immigration Appeals. As both previous agencies had noted, Castillo-Ibarra was barred from seeking a withholding of removal because he had already been convicted of a particularly serious crime.

Notwithstanding that determination, the Seventh Circuit also held that even if he had not been convicted, Castillo-Ibarra still would not be entitled to relief under the Convention Against Torture, because he had not shown that he more likely than not would experience severe pain and suffering authorized by the Salvadoran government. As a result, Castillo-Ibarra will be forced to return back to El Salvador, regardless of his previous convictions and former participation in MS-13.

Indiana’s Personalized License Plates: Government Speech or Individual Expression?

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

Today, specialty license plates are commonly seen on cars and trucks across the country. Some display amusing or entertaining messages, while others are simply used as a unique way to identify a driver’s vehicle. Earlier this month, the Supreme Court of Indiana considered a case dealing with the intersection of state-issued specialty license plates and the freedom of speech. In his opinion, Justice Dickson held that Indiana’s personalized license plates are government speech and therefore immune from First Amendment attacks.

In Indiana, owners of registered vehicles can apply to the Bureau of Motor Vehicles (BMV) for personalized license plates (“PLPs”). Ind. Code § 9-18-15-1. PLPs display a combination of letters and/or numbers which identifies the vehicle and is “requested by the owner or lessee of the vehicle and approved by the bureau.”

Over the years, PLPs in Indiana have become quite popular. For example, between January 1, 2011 and July 19, 2013, the BMV received 71,452 applications for personalized plates.

After receiving an application for a PLP, the BMV has the authority to reject a PLP that: (1) contains a connotation offensive to good taste and decency; (2) would be misleading; or (3) is otherwise determined by the bureau to be improper for issuance. Ind. Code § 9-18-15-4(b). Similarly, the BMV can revoke a previously issued PLP if it receives a substantial number of complaints about the PLP’s message, or if the PLP contains references or expression that Indiana law prohibits. 140 IAC 2-5-4(a).

A class of Indiana citizens, all of whom had their applications reject or PLPs revoked, challenged the constitutionality of the PLP program, claiming that the BMV’s decision-making process violates the First Amendment and the Due Process Clause of the Fourteenth Amendment. The BMV argued that its PLP decision-making process was constitutional because personalized license plates are a form of government speech.

Initially, the lawsuit arose two years ago when the BMV refused to renew a license plate that said “0INK.” The American Civil Liberties Union (ACLU) of Indiana sued the BMV on behalf of Rodney Vawter, who claimed the message was an innocent attempt to make light of his work as a police officer.

In its opinion, the Indiana Supreme Court relies on several factors from Walker v. Tex. Div., Sons of Confederate Veterans, Inc. to determine if PLPs are a form of government speech. In Walker, the Supreme Court considered whether Texas’s specialty license plates were government speech. First, the Court considered whether the government has historically used the medium to speak to the public. In its analysis, the Court reasoned that license plates have long been used for government purposes, such as providing identifiers for the public and law enforcement. The Court further reasoned that license plates have historically been used as a way to communicate between states. For example, all fifty states have unique graphics and slogans on their plates which put drivers and law enforcement on notice as to where the driver is from and where the vehicle is registered.

Next, the Court looked at whether, in the public’s mind, the message is closely identified and associated with the state. Here, the Court reasoned that the PLPs technically belong to the BMV and display “Indiana” at the top of every plate, indicating that the state of Indiana owns and issues them. Therefore, the public reasonably associates PLPs with the government.

Finally, the Court examined the degree of control that the state maintains over the messages conveyed. Analyzing these factors together, the Court held that PLPs are a form of government speech. Accordingly, it found that the BMV did not violate the First Amendment right to free speech or the Due Process Clause of the Fourteenth Amendment.

Under Walker’s reasoning, personalized license plates can be seen as a form of government speech because the state is issuing them. And the state certainly has a legitimate interest in rejecting or revoking inappropriate PLPs. But how can a personalized license plate really be government speech when the individual, rather than the state, is using it as a form of self-expression? If only there was some sort of happy medium between government speech and individual expression.

Disability Rights Victory: Court Allows Disabled Plaintiff a Second Chance at Litigation

Disability Rights Victory

Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University School of Law

Despite the existence of disability laws, disabled people still face many barriers to equality. For instance, disabled persons are less likely to be employed than those without disabilities. From 2013 to 2014, the rate of employment for disabled people was only 17.1 percent compared to 64 percent for those who are not disabled.

In Reed v. Illinois, the Seventh Circuit recently rejected the state of Illinois’ collateral estoppel claim against a disabled plaintiff seeking to sue the state court for failing to provide her with disability accommodations during her pro se lawsuit.

The case stems from an earlier personal injury suit brought by the Plaintiff, Linda Reed, in 2011. Reed was diagnosed with Tardive dyskinesia, which causes involuntary muscle spasms, choking, tremors, pain, and occasional muteness and screaming. She also had posttraumatic stress disorder. These two disabilities severely limited her communication, thinking, and mobility skills. Reed litigated the case without a lawyer, and asked for accommodations beforehand, such as a friend to take notes for her, and a podium. These requests were honored. However, the court denied other requests for a microphone, an interpreter to express Reed’s thoughts when she could not communicate, and a set of special jury instructions that explained her disability.

Unfortunately, the trial devolved into nightmare for Reed without these accommodations. She had to grunt and use hand gestures during the times she could not verbally communicate her thoughts, which the jury was unable to understand. And even worse, was the judge’s conduct. He often yelled at Reed, told her to “hurry up” in front of the jury, and cut off her examination of witnesses. The judge’s behavior and the embarrassment related to it even caused Reed to go into a fit of convulsions at one point.

Unsurprisingly, the jury did not find in favor of Reed, but she moved for a new trial on the grounds that she was disabled and had been denied reasonable accommodations under the Americans With Disabilities Act (ADA). The ADA prohibits discrimination in on the basis of disability in employment, public accommodations, and other areas of life. The ADA also defines disabilities.

The trial court judge denied her motion for a new trial because he concluded that her pauses in speech were related to indecisiveness rather than a disability. He also stated that her speech impediment had been observed and fully accommodated. The Illinois appellate court affirmed the ruling. She later filed an ADA action in federal court against the Cook County court for failing to adequately accommodate her disability. The state argued that her lawsuit was barred under collateral estoppel, and the district court agreed.

The Seventh Circuit noted that all the requirements of collateral estoppel had been met in this case, but explained that the more important issue in collateral estoppel analysis was whether Reed had a full and fair opportunity to litigate the case. The Seventh Circuit reasoned that she had not had a full and fair opportunity because her chance at oral arguments was denied on the basis of her disability and she had no lawyer to help litigate her case. She also did not mention the Rehabilitation Act of 1973 in her state appeals, as she had in federal court. The trial judge’s inconsistent statements regarding her accommodations were also important to the decision, along with the judge’s determination that the plaintiff’s issues were related to indecisiveness rather than an actual disability.

The court of appeals also brought up the judicial system’s history of disparate treatment towards disabled persons, citing to Supreme Court cases such as Tennessee v. Lane, which led to the enactment of Title II of the ADA to ensure the disabled had equal access to the courts.

It is clear that even with anti-discrimination laws that are designed to protect the disabled, they are often denied their rights by the very system that should be enforcing them. The Seventh Circuit did provide one small victory in this case by recognizing the injustices committed against the disabled and the importance of equal opportunities in the court system.

Smiling in the Face of Religious Adversity


Zach Melloy
Juris Doctor Candidate, 2016
Valparaiso University Law

An employee filed suit against her employer, the Circuit Court of Cook County, Illinois, alleging that they had subjected her to a hostile work environment on the basis of her religion and national origin.

Fozyia Huri, a native of Saudi Arabia and a practicing Muslim, began working in 2000 for the Circuit Court of Cook County as a childcare attendant. She was to work under Sylvia McCullum, a devout and vocal Christian who did not bother to introduce herself to Huri until Huri had been there for two weeks. According to Huri, McCullum was unfriendly from the moment they were introduced. Over eight years, McCullum repeatedly told Huri, who routinely wore a hijab, that one of her colleagues was a “good church-going Christian” and that the she and the chief judge were both “good Christians.”

In 2009, McCullum started becoming more and more vocal, telling her co-workers to work with a “good Christian” rather than Huri, whom McCullum described as “evil.” McCullum also began treating Huri resentfully; she made false claims against her, subjected her to different rules than her co-workers, screamed at her, and subjected her to stricter scrutiny than her co-workers. McCullum also asked the other office attendants to holds hands and say a prayer “in the name of Jesus Christ.”

A year later, Huri was transferred to the Court Reporters’ Office at the Cook County Circuit Court. Her new supervisors, however, treated her just as badly as McCullum had. Huri was prohibited from entering her office early, although other employees have 24-hour access. She was also prohibited from letting her daughter wait in the lobby, although children of non-Muslim, non-Arab employees are allowed in the lobby and the office. She was also excluded from departmental social gatherings, and was also denied time off for an Islamic holiday. Huri complained to the Chief Judge’s Office, but never heard anything.

As a result of this harassment, Huri filed a pro se claim against the Circuit Court of Cook County pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983, alleging that she had been subjected to a hostile work environment, because she is Muslim and an Arab. The United States District Court for the Northern District of Illinois dismissed the action, and Huri filed an appeal with the Seventh Circuit Court of Appeals.

The Seventh Circuit held that the District Court’s analysis was “replete with error.” The District Court had dismissed the entire case for two reasons: failure to exhaust administrative remedies, and failure to state a claim. However, as the Seventh Circuit noted, Huri had already filed three complaints with the Equal Employment Opportunity Commission before going to court.

The Seventh Circuit also held that Huri’spro se complaint accurately stated a claim under Title VII. In order to state a Title VII hostile work environment claim, a plaintiff must allege that they were subject to unwelcome harassment based on a reason forbidden under Title VII. Huri alleged the basis for her harassment and discrimination was her religion and national origin, both of which are forbidden under Title VII.

In addition to unwelcome harassment and a forbidden reason under Title VII, a plaintiff must also allege that the harassment was so severe or pervasive that it created a hostile or abusive working environment, and that there is a basis for employer liability. The Seventh Circuit held that Huri met this requirement, stating that “[i]t is enough to say that it is plausible that the screaming, prayer circles, social shunning, implicit criticism of non-Christians, and uniquely bad treatment of Huri and her daughter could plausibly be abusive.” As a result, the District Court erred when it dismissed Huri’s claim.

The Seventh Circuit then reversed the District Court’s decision and remanded the case for further proceedings. Huri will still have to overcome the burden to produce evidence to prove her claim, but now she will finally be able to demonstrate the religious harassment and discrimination she’s suffered for over a decade.

Life in prison for juveniles under RICO?

Ashley Merritt
J.D. Candidate 2017
Valparaiso University School of Law

Should juveniles be sentenced to life in prison without the possibility of parole? In a recent case, the Seventh Circuit Court of Appeals addressed this unsettling question.

In 2005, Latin Kings gang members Martinez and Vallejo were indicted under the Racketeer Influenced and Corrupt Organization Act (RICO) for crimes they committed as juveniles, including first degree murder. After pleading guilty, both Martinez and Vallejo were sentenced to life in prison. The defendants now claim that they are entitled to new sentencing hearings under Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole for juveniles violate the Eighth Amendment.

Martinez and Vallejo were both sentenced to life in prison under 18 U.S.C. § 1963, which states that anyone who violates any RICO provision shall be imprisoned not more than 20 years, or for life if the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.

In his opinion, Judge Flaum identifies two possible interpretations of the statute. On one hand, it is possible that the statute mandates a life sentence whenever the crime carries a maximum sentence of life in prison. If so, the statute is unconstitutional under Miller. On the other, it is possible that the statute sets only a maximum sentence of life in prison in such cases, and a court could choose to give a lower sentence.

Although Judge Flaum states that most courts have interpreted the statute to impose a sentence of no more than twenty years, he reasons that because the defendants were given individualized sentencing hearings and not sentenced by statutory mandate, the district court did not violate Miller.

Given the severe nature of the defendants’ crimes, life sentences can certainly be justified even if they were minors at the time. However, the ambiguity behind the sentencing guidelines suggests that even courts have trouble interpreting them. Maybe the legislature should change the language of the statute to be less ambiguous. But perhaps it is time for a complete overhaul of the mandatory minimum sentencing guidelines.

In Search of Asylum

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Lishou Wang, a native and citizen of China, used to farm in a village in the eastern province of Shandong.  In 1988, he and his wife bore a child.  Shortly thereafter, China’s officials ordered an intrauterine device (IUD) implanted in his wife.  Five years later, Wang’s wife got pregnant again because the IUD fell out, and the officials forced an abortion.  In 2000, his wife again gave birth.  Again, government officials showed up at their house and threatened to sterilize either him or his wife.  Outraged, Wang fought against the official’s orders.

Wang recalled being kicked to the floor and hit with batons until he passed out.  He woke up in the hospital and felt excruciating pain from a fractured foot.  Government officials surgically inserted “Norplant” into his wife’s arm while Wang remained hospitalized.

In 2009, Lishou Wang entered the United States on a business visitor’s visa for three months and overstayed.  Wang applied for asylum and withholding of removal over a year after the visa expired.  In his search for asylum, Wang alleged that China’s officials tried to prosecute him for resisting birth control demands.

At the asylum hearing, Wang testified through an interpreter.  The decision hinged on Wang’s inconsistent statements.  He testified that China’s officials forced tubal ligation, a form of sterilization, and implanted Norplant in his wife, a form of contraceptive.  The court interpreter misinterpreted “Norplant” for “tubal ligation.”  The National Institute of Justice (IJ) said that the two procedures were so “markedly different” that it is impossible to confuse the two in any way.  The IJ reasoned that even if Wang had told the truth, he “could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization.”  The IJ, under 8 U.S.C. § 1227(a)(1)(B), ordered Wang’s removal for overstaying his visa.

The Board of Immigration Appeals (Board) affirmed the IJ’s findings and Wang petitioned for judicial review.  On August 4, 2015, the United States Court of Appeals for the Seventh Circuit heard arguments in Lishou Wang v. Loretta E. Lynch.  The IJ mistook Wang’s innocent confusion between the two birth control procedures to incorrectly conclude that it never occurred.  The IJ did not have enough evidence to reject Wang’s honest mistake to discredit his inconsistent testimony about what procedure was forced on his wife.

The Seventh Circuit rejected the IJ’s holding because the statute protects those who were punished for opposing the population control program.  According to 8 U.S.C. § 1101(a)(42), Wang only had to show that he resisted a coercive population control program to establish relief said the Seventh Circuit because it “is not limited to only forced abortions and sterilizations.”  On October 26, 2015, the three judge panel remanded the case to the Board for further proceedings.

Court interpreters play a key role in the democratic process.  Many non-native English speakers rely on court interpreters to guide them through the legal system.  A court interpreter’s error can result in the law being misapplied.  Many are discouraged to utilize the courts because they do not speak fluent English nor understand the legal process.  Court interpreters are key players in the courts and their assistance is highly valued.  Like attorneys, court interpreters must show great attention to detail because one wrong interpretation can cost a case.

Child Custody Battle From Over the Border

<> on April 1, 2014 in Nogales, Arizona.

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

We all know child custody gets ugly within the United States, but what happens when it becomes tug-a-war between U.S. jurisdiction and jurisdiction outside of the U.S.? Judge Ripple wrote the opinion for a three- judge panel to better understand this battle in Ortiz v. Martinez.

Mr. Ortiz and Ms. Martinez lived together with their two children, A.O, a seven year old, and L.O, a sixteen-year-old boy. They all lived together in Mexico City. On August, the couple purchased round-trip tickets to Chicago to visit Martinez’s family. Ortiz was scheduled to return to Mexico on the 13th, and the rest of the family on the 20th. Ortiz retuned, but Martinez and the children did not. She informed Ortiz that her and the children would not be returning. Keeping the children in the United States would secure the safety of the children. In particular secure the safety of, A.O., from being sexually molested and emotionally abused by Ortiz.

Ortiz filed action under conditions of the Hague Convention seeking the return of the two children to Mexico. Martinez asserted that Ortiz had acquiesced to her retention of the children in the United States, permitting the district court to deny the return of the children under Article 13(a). Ms. Martinez claimed she had a claim under Article (b) because the children faced “grave risk” of harm if returned. She lastly presumed that the return would contravene with laws of the State of Illinois, the U.S. Constitution, and fundamental principles of human rights. Later, Martinez invoked Article 13, expressing L.O.’s desire to remain in the United States.

Dr. Machabanski, a psychologist, was appointed by the court to evaluate the children. The district court held a three-day hearing. It heard testimony from Martinez, Ortiz, and family members, and a camera interview was conducted for the two children. The court heard substantial evidence supporting the claim that Mr. Ortiz had sexually abused A.O. Martinez, including inappropriate touching of their daughter in the vaginal area. The doctor first told her that the rashes were diaper rashes and a cream was prescribed; however, the rashes reappeared. Martinez first perceived inappropriate contact when A.O. was three years old in the bathroom, where A.O. was naked and against the wall and Ortiz on his knees, naked in front of her.

A.O. corroborated this testimony explaining with gestures, and words. Dr. Machabanski testified that A.O. exhibited behavior consistent with having being sexual abused and she portrayed negative emotional toward her father, Ortiz, during playtime. The court dismissed the best wishes of the child defense, and independently found that L.O. was old enough and mature enough to make his own decision.

The Seventh Circuit reviewed the lower courts factual finding for clear error and its conclusion that those facts established a grave risk of harm de novo. The Court found that Mr. Ortiz’s evidence lacked credibility. Their reasoning was that Martinez wanted to flee to the states because he was having an affair, and brainwashed A.O. to testify. The Court found that the claim that Ortiz sexually abused his daughter meets the clear and convincing standard. The evidence of sexual abuse was substantial and thus met the grave risk exception.

Business Judgment Rule: The New Corporate Mulligan


By: Rex Hood
Juris Doctor & M.B.A. Candidate, 2015
Valparaiso University School of Law

The Seventh Circuit recently reviewed Donnawell v. Hamburger  to establish whether a corporation could use the business judgment rule in correcting a contract. The business judgment rule is a presumption that in making a business decision, the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.

The case is a share-holders’ derivative suit against current and former members of DeVry‘s board of directors. An incentive plan adopted by the company in 2005 authorized the award of stock options to key employees, including the company’s CEO. The plan limited the awards to 150,000 shares per employee per year. Yet the company granted Daniel Hamburger, who became its CEO in 2006, options on 184,100 shares in 2010, 170,200 in 2011, and 255,425 in 2012. After discovering its mistake, Devry reduced each grant under the 2005 plan to 150,000 shares while at the same time it allocated Hamburger 87,910 additional shares available under the company’s 2003 incentive plan. As a result Hamburger received options in 2012 far above the 150,000 that were the most he could receive under the 2005 plan. All these grants were proposed by the company’s Compensation Committee to the company’s independent directors. The independent directors approved the award of the additional shares to Hamburger.

The plaintiff argues that the award is improper because only the company’s Plan Committee, and not the Compensation Committee, was authorized to grant stock options under the 2003 plan. But there was no Plan Committee in 2012. Likewise no harm was done by allowing the Compensation Committee to do over, in effect, the erroneous grant of stock options under the 2005 plan, by invoking the 2003 plan. The court held that drafters of contracts are not omniscient; they are not gifted with exact knowledge of what the future holds and, furthermore, literal interpretation can produce absurdities when applied to unforeseen occurrences. The nonexistence of the Plan Committee created an unforeseen hole in the 2003 incentive plan, and the company plugged the hole by substituting the Compensation Committee a substitution that might well make the shareholders better off, and would be very unlikely to make them worse off, than if there had been a Plan Committee. It makes no sense to allow a harmless error to drive a judicial decision.

This court in their ruling has avoided a company suffering from an unforeseen effect but, has this court decision created a corporate do over or “mulligan” provision? By allowing a company to use the business judgment rule in this manner you can expect we will see companies attempt to utilize this rule in other unforeseen ways in the future.

No Wonder People Do Not Like Insurance Agents


By: Jeremy M. Schmidt
J.D. Candidate, 2017
Valparaiso University School of Law

Ohio National Life Assurance Corp. v. Douglas W. Davis, et al. came before the Seventh Circuit on appeal from a summary judgement decision at the trial court. Mavash Morady (Morady), a defendant in this case, was a contracted insurance agent with Ohio National Life Assurance Corp. (Ohio National). Douglas Davis (Davis), another defendant in this case, was working with Morady to defraud Ohio National by using an investment strategy known as Stranger-Owned Life Insurance (STOLI).

Davis and Morady devised a scheme where they chose people that were older because they believed that they would be prime candidates for their scheme. It would begin by Davis approaching an individual, and then asking them to take out a life insurance policy. These people would receive a compensation from Davis for taking out a life insurance policy.

Morady, being the life insurance agent, would meet with the chosen people and have them fill out all of the forms to apply for life insurance. Morady would then fraudulently alter the documents to make these potential clients look like they are younger, and healthier, than they actually were. Ohio National would confirm that these prospective clients were actually people, but they did not check further into any of the clients to ensure the paperwork was completely accurate.

Davis and Morady then would contact the clients about a month after the life insurance went into force. The two then would have the clients sign the policy over to a irrevocable trust that was managed by a company that Morady’s husband owned. The life insurance policy then was owned by the company, and the beneficiary was also the company. The clients never paid any of the premiums because the company paid the premiums for them. The company then would sell the life insurance polices to investors. By doing this, Morady was violating her employment contract with Ohio National because the employment contract does not allow for an agent to sell policies that will be involved in a scheme where a third party will pay the premium, and will thus benefit from the death of the insured.

Once Ohio National found about the scheme Davis and Morady had been carrying out, they voided out all the policies that were involved. Ohio National then filed a complaint against Davis, Morady, Morady’s husband, and other investors. The two sides filed briefs that had a common fact pattern, which means that there was no dispute to the events and how they happened. Ohio National filed a motion for summary judgement, which the court granted in their favor. The court gave Ohio National everything they asked for with the exception for the judgment against Steven Egbert (Egbert). The court reasoned that Egbert was an innocent bystander in the scheme when he made an investment into a life insurance policy, and could not have known the policy was created through fraudulent acts.

The Seventh Circuit decided that summary judgement in favor of Ohio National was correct and the damages awarded were reasonable because Davis and Morady were found to have committed a tort of civil conspiracy.

Surveillance Cameras At Work: Invasion of Privacy?

By: Haley Holmberg
J.D. Candidate, 2017
Valparaiso University School of Law

A peeping Tom or just a supervisor doing his job? The Seventh Circuit Court of Appeals reviewed Gustafson v. Adkins to establish whether the defendants had a valid reason behind their actions and were protected by qualified immunity or whether they should be held accountable.

Renee Gustafson worked at Jesse Brown Veterans Affairs (“VA”) Medical Center in Chicago as a police lieutenant supervisor. During this time, the VA didn’t have a designated area for female officers to change so they often changed in an active supervisors’ office. In May 2007, Thomas instructed Adkins to install a hidden camera in the office to identify supervisors who slept on duty. Adkins informed Thomas about the illegality, but was instructed to install the camera anyway. The images were sent to Thomas’s office for viewing. The camera was discovered two years later and had caught images of Gustafson and other females changing. Gustafson filed suit against Thomas and Adkins alleging her privacy had been invaded and she had been the victim of an unconstitutional search under the 4th Amendment.

Adkins argues Gustafson’s claim of 4th Amendment violation is precluded by the Civil Service Reform Act (“CSRA”) and the Federal Employees’ Compensation Act (“FECA”). The CSRA establishes a framework for evaluating adverse personnel actions against federal employees and may preempt federal claims that fall within its scope. However, Adkins’s conduct does not fall within the scope and cannot be considered to have been done for “disciplinary or corrective action” as there is little evidence that the camera was being used for this purpose. Further, case law on the matter suggests Adkins’s conduct is “closer to a warrantless search outside the scope of the CSRA.”  “The FECA provides the exclusive remedy against the United States or an instrumentality thereof to compensate a federal employee for a work-related injury defined as injury by accident and disease proximately caused by the employment.” The FECA does not bar a federal employee’s suit against individual co-employees. Given the silence on co-employee suits and the difficulty of defining Adkins actions as accidental, therefore matters of the suit are not determinative based on the FECA.

Adkins also claims his motion on summary judgment should have been granted based on qualified immunity. “The doctrine of qualified immunity protects government officials from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  In order to determine if Adkins can invoke qualified immunity the court must inquire whether the constitutional right was clearly established at the time of the alleged violation. According to case law, the essential principle is that an employer’s workplace search must be reasonable. “Reasonableness depends upon the circumstances presented in a given situation and upon balancing the public, governmental, and private interests at stake in that situation.” At the time the camera was installed, the right of employees to be free from unreasonable employer searches was already established. Therefore, Adkins did not meet the requirements of qualified immunity.

For the foregoing reasons, the court affirmed the judgment of the district court. This case is a prime example of why we must never just do as we are told, even in employment. To further demonstrate this, refer to Yale University psychology professor Stanley Milgram’s 1961 study on authoritarian obedience. When others are allowed to make decisions for us, it may not always lead to an outcome in our best interest.

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