Valpo Law Blog

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

Category: Government (page 1 of 6)

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.

Weighing the Options of Care

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

Over 23,000 mentally disabled people were on the waiting list to receive housing and medical care from any of the eight state-operated developmental centers (SODC) in Illinois.  Another 600 were in emergency situations awaiting services. The State of Illinois could not provide essential services to those on the waitlist because it already cared for nearly 25,000 people.  In 2012, Illinois planned to close roughly a third of its SODCs to save costs. The state chose to close the Warren G. Murray Development Center, an SODC. Residents of Murray faced relocation due to the planned closure. The state tried to shift the residents of the SODCs to community-based facilities because it is cost effective.

Before the residents are moved, the state must assess their fitness. The assessment determines what kind of facility the disabled person will be placed in. Standing in the state’s way were the guardians of the Murray residents; the guardians wanted to prohibit the state from carrying out the assessment without their consent. The Illinois League of Advocates for the Developmentally Disabled represented the plaintiffs. They sued the Illinois Department of Human Services under 42 U.S.C. § 12132 of Title II of the American with Disabilities Act.  Plaintiffs alleged discrimination by a public entity.

The guardians claimed treatment of residents at community-based facilities are worse than at SODCs.  In addition, the guardians claimed the state left them with no other choice but to accept the relocation of the wards. Plaintiffs filed for a preliminary injunction against the assessment and transfer of the wards.  The case went before the district court of Northern Illinois.  The district court denied the plaintiff’s request.  Plaintiffs appealed to the Seventh Circuit Court of Appeals.

Judge Posner, Manion, and Hamilton presided over Illinois League of Advocates for the Developmentally Disabled, et al. v. Illinois Department of Human Services, et al. and affirmed the district court’s holding.  Plaintiffs failed to prove mistreatment of their wards at community-based facilities. The judges relied on factors such as emotional benefits of community-based facilities, the likelihood of residents having his or her own room, and the lack of irreparable harm on the plaintiffs in affirming the decision.

First, the judges reasoned that community-based facilities are emotionally beneficial for the residents. Being near stores, parks, restaurants, or movie theaters bring emotional benefits that allows them to feel free. Second, the chances of residents having his or her own room is better than at SODCs where less than 29 percent have their own room. Community-based facilities are less crowded than SODCs.  Finally, the judges thought that granting the preliminary injunction would impose irreparable harm on the state because of the financial distress.

SODCs are isolated medical centers cut off from society. Although the mentally disabled are severely hindered in life, it does not mean that they cannot experience the joy of being a part of the community. Academic studies show that severely disabled persons feel less isolated at community-based facilities.  Yes, parents or guardians should have the ultimate say in the care of their wards, but at times the state is in a better position to know what’s best in weighing the options of care.

Homicide By Strangulation… During Sex

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

For one man, a seemingly great night turned into a long journey through the judicial system. In Thomas v. Clements, the Seventh Circuit Court of Appeals reviewed a man’s conviction where he killed his wife after applying too much pressure on her during sex.

Joyce Oliver-Thomas and Oscar Thomas were married. After nine years of marriage, the two divorced; however, Oliver allowed Thomas to continue living in her apartment where the two continued a sexual relationship. On the night of the incident in question, the police received a call from Thomas saying that Oliver was unconscious. When the police arrived Oliver was unresponsive, eyes open, and without any pulse. She was announced dead at the hospital.

Thomas gave two inconstant statements. He first stated that he left the apartment and came back and found Oliver grabbing her neck in a choking manner. He later stated that he left the apartment and began watching a pornographic movie. When he returned he and Oliver had sex, during which they fell off the bed and continued to have sex. He mentioned that at one point while engaging in sexual activity he had his arm around her neck. Thomas was found guilty by the trial court for unintentionally causing Oliver’s death by putting pressure on her neck for too long during sex. The trial court ruled under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and Thomas appealed, alleging that the wrong standard was applied.

To prevail on his claim, Thomas had to first show that his counsel’s performance was deficient, meaning it fell below the objective standard of reasonableness. Thomas argued the defense counsel was deficient in failing to consider and consult with a pathologist who would have reviewed the autopsy report and testified. Dr. Mainland’s (the plaintiff’s expert) pretrial testimony showed that Thomas acted intentionally. This corroborated with the testimony of the plaintiff in which he admitted having his arm around her neck before she died, as well as the counsel choosing not to argue the issue of causation. The combination of these factors gave what seemed to be a reasonable inference of intent. There were no signs of fight or struggle between Thomas and Oliver, however. Therefore,  counsel should have known there was reason to question a finding of intentional homicide. A responsible counsel would have at least contacted an expert to check if the medical findings could be reconciled.

Next, Thomas had to show that there was a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different. The expert mention that strangulation would likely result after four minutes of pressure, meaning there were roughly fifty-five minutes in which Oliver was not being choked to death. All parties admit there was no evidence of external marks on either Thomas or Oliver. Dr. Teas’s testimony in the post-conviction hearing stated that because there were no external bruising on the neck or bone, the necessary injuries of strangulation were missing.

Dr. Teas’s testimony provided that even if Thomas did cause Oliver’s death, it was not intentional. The facts were consistent with an accidental death and sufficient to raise a reasonable doubt; therefore, there was evidence of prejudice for ineffective assistance of counsel purposes. The Seven Circuit  ruled that after reviewing the case de novo the counsel’s performance in relation to a pathologist expert was deficient and that Oliver was prejudiced by counsel’s deficient performance.

The Unlawful Inquisition

By: Jonathan Joseph,  MBA, CPA
J.D. Candidate, 2016
Valparaiso University School of Law

How much information may a judge solicit from a telephonic interview? When does an oral interview become an unlawful interrogation? A recent case decided by the Seventh Circuit attempts to answer these very questions.

After serving a term in an Illinois state prison for a sex crime, the plaintiff was committed to a Treatment and Detention Facility, pursuant to the civil Sexually Violent Persons Commitment Act. He had a job in the facility’s dietary services department, but was fired. He filed suit against four dietary department staff members under 42 U.S.C. 1983. The plaintiff alleged that he was fired in retaliation for previous lawsuits he had brought against staff members. As required by 28 U.S.C. § 1915(e)(2), the district judge screened the complaint at the outset of the case to determine whether it “fail[ed] to state a claim upon which relief may be granted.” The judge found that the lawsuit “contained only conclusory allegations [in which] the plaintiff simply stated he had filed previous lawsuits and assumed people knew about it.” He ruled that the complaint did, indeed, fail to state a claim, and dismissed the suit with prejudice.

The judge had interviewed the plaintiff by telephone. During the interview, which the judge characterized as a “merit review,” no transcript or audio recording was kept. One could characterize the interview as inquisitional in its nature. The term “inquisition” has ominous overtones to those familiar with European medieval religious history, but today, an inquisitorial hearing is defined as “a hearing in open court in which the judge examines the parties to the suit rather than leaving examination to the lawyers, which is adversarial rather than inquisitorial.” In this case, the district judge went beyond the inquisitorial in its modern sense, because he examined the plaintiff in “secrecy being secured by the absence of a transcript, or even a judge’s or reporter’s notes.”

The Seventh Circuit reversed the district judge’s decision, noting that it previously rejected ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim. The court recognized that there are circumstances that merit telephonic interviews. These  can involve parties who are incarcerated and are done in order to save the time and expense of transporting a prisoner to court. However, these circumstances do not allow for questioning regarding the validity of the case. It is permissible for the judge to interview a pro se detainee plaintiff to determine what the facts of the case are, but not whether the plaintiff’s case is meritorious.

When a judge conducts any questioning of a witness, plaintiff, or defendant, that interview must be recorded and entered into the record. The judge must ensure that a transcript or recording of the interview be made to allow appellate review and prevent a reversal of a case that even the Seventh Circuit felt was weak: “barebones—maybe so thin that it could have been dismissed without further ado.” The court was obligated to take the judge’s error as grounds for reversal.

Citing Williams v. Wahner, the Court did not “mince words” when declaring that the use of ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim is unlawful. The court said that 28 U.S.C. § 1915A(a), a screening provision similar to § 1915(e)(2), does not contemplate an oral examination of a party by the judge designed to elicit answers that will enable the judge to resolve contestable factual issues. “If the validity of a claim depends on the accuracy of the plaintiff’s factual allegations, and their accuracy can’t be resolved without an oral hearing, it is a matter to be resolved at trial, in conformity with the procedures that govern trials. . . We expect that when this court declares a procedure employed by a district judge, or district judges, of this circuit unlawful, the procedure will be abandoned. Regrettably, not all the district judges have abandoned it.”

If a judge needs additional information from a detainee to determine the merits of a lawsuit going forward, the judge can make a limited appointment of counsel specifically for the purpose of fact-finding and release the attorney after sufficient information has been gathered. That may only involve a single interview or even a telephone call, which would satisfy the judge’s need for information and uphold the lawfulness of the manner in which it was obtained. Inquisitions, however, are unlawful and viewed with prejudice by the Seventh Circuit.

Minimum Wage for Inmates?

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

The federal minimum wage provisions are contained in the Fair Labor Standards Act (FLSA), which set the federal minimum wage at $7.25 per hour. But are detainees and pretrial detainees able to receive minimum wage when they acquire jobs in jails or prisons? The Seventh Circuit Court of Appeals helps us to better understand the answer to that question and more while reviewing Smith v. Dart.

Smith was a pretrial detainee at the Cook County Jail. He brought this claim pro se in a civil rights action under 42 U.S.C. § 1983 alleging that Sheriff Thomas J. Dart violated his federal rights by paying him insufficient wages and subjecting him to inhumane working and living conditions. The trial court dismissed the claims as to his insufficient wages and working conditions on a preliminary review under 28 U.S.C. § 1951A. Dart moved to dismiss the remainder of the claims for failure to state a claim for relief under FRCP 12(b)(6), or alternatively for a more definite statement under rule 12(e) .

In response, Smith sent two letters to the court. The district court did not address the first letter, and it treated the second letter as a motion to introduce evidence, which the court denied. The district court then granted Dart’s motion to dismiss as uncontested and dismissed Smith’s complaint without prejudice. Smith was informed of the pleadings deficiencies and instructed to amend his complaint and resubmit it. Smith attempted to do so, but the court construed his attempt as a motion for reconsideration, which the court denied. The court gave him a second chance at amending his complaint and Smith, again, attempted to resubmit an amended complaint, but the court again construed this pleading as a motion for reconsideration, which was again denied. The court then dismissed the case with prejudice pursuant to FRCP 41(b).

Smith then appealed his case to the 7th Circuit which reassessed his complaint because pro se pleadings are to be held to “less stringent standards than formal pleadings drafted by lawyers.” The court found that the trial court should have considered the first letter that Smith wrote in response to Dart’s motion to dismiss as it clarifies Smith’s initial pleadings. The court held that, as Smith’s letter alleges that the jail food did not meet nutritional standards in accordance with regulations, the claim should not have been dismissed. The letter further clarifies that the jail water is contaminated and contains various pollutants, constituting allegations sufficient to state a claim upon which relief can be granted.

As to Smith’s work wages, the court held that the federal minimum wage set out by FSLA was intended to protect all employees in the free market, of which he was not a member. As the jail is responsible for providing him with his basic needs such as food, shelter, clothing, and medical care, his job in the jail helps to offset those living costs. In conclusion, the court reversed the district court’s decision with respect to his inadequate food and contaminated water claims and remanded for further proceedings on those aspects. The Seventh Circuit affirmed the dismissal of Smith’s other claims.

This case demonstrates the demand for the judicial system to allow pro se defendants to be given the benefit of the doubt. Further, it puts an emphases on the importance of the Courts to not reject a defendant’s petitions based on rules that even the most educated lawyers struggle to master. Before an individual decides to break a law which may be punishable by jail or prison time, you may want to think twice. If being behind bars is not enough of a deterrent, an individual will be additionally be required to pay numerous fines, attorney’s fees, and may also be subject to less than desirable living conditions and very little—if any—pay for work.

Retaliation Claim for Workplace Discrimination

Retaliation road sign

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

Eric Harden sued the Marion County Sherriff Department for retaliation under title Title VII of The Civil Rights Act of 1964. Harden alleged that the Department fired him in retaliation for testifying on behalf of African-American police officers in a race discrimination investigation.  The Court reviewed two issues: evidentiary and retaliation.

A witness accused Lt. Frasier of stealing money from a man Harden arrested. The Department argues that the summary judgment motion  relied on inadmissible hearsay.  Harden wanted to offer the statement of the witness to prove that the Department was aware of—and ignored—another suspect. The evidence offered did not warrant the decision even if the statement was considered.

Title VII  prohibits employers from retaliating against employees from testifying, assisting, or participating in a race discrimination investigation. Retaliation may be established by either direct or indirect methods of proof. The Court limited their inquiry to whether Harden has presented sufficient evidence that his protected activity was a substantial and motivating factor in Harden’s eventual termination.

The plaintiff sought damages against the defendant for retaliation. Therefore, Harden had the burden of proving each of the following elements by a preponderance of the evidence:

  1. The plaintiff engaged in or was engaging in an activity protected under federal law, that is known as activity;
  2. The employer subjected the plaintiff to an adverse employment action, that is known as adverse employment action; and
  3. The plaintiff was subjected to the adverse employment action because of his participation in protected activity.

The defendants conceded the first two elements. This left Harden with the burden establishing that the discrimination that he suffered was caused as a result of the protected activity; meaning, the employer action was at least, in part, motivated by the employee engaging in protected activity.

Harden had to rely on circumstantial evidence to satisfy the element, or a a casual link between his protected activity and the adverse action. There are three categories that go into circumstantial evidence: suspicious timing, ambiguous statements, and other information from which an inference of retaliation intent might be drawn.

Harden offered no evidence that proved that his termination happened at a suspicious time. Harden, next, offered evidence to show a continuous pattern of harassment. The evidence included Lt and the Deputy encouraging workers to discipline Harden for no reason. Even though Harden introduced this evidence, a link between the evidence and his termination was missing.

Harden alleges that the Internal Affairs investigation was unworthy of credence. The investigation concluded that Harden was, ultimately, responsible for the theft. The court did not evaluate whether the stated reasons were inaccurate, but whether the employer honestly believed the reason it has offered to explain the discharge. The investigation consisted of more people being suspected other than Harden. There was a thorough investigation and the investigation offered a legitimate explanation for their conclusion that Harden was the thief.

The Seven Circuit ruled that there was not enough evidence to suggest that the Internal Affairs investigation was a sham or that the relevant decision makers at the Department did not legitimately rely on the investigators’ conclusion in terminating him. Harden argued that he immediately became the primary suspect and the department, which ignored the accusation of another officer. The Court found that there was no evidence in the person who heard the accusation told the investigators during the interview. Because no reasonable jury could find that the Internal Affairs investigation was pretextual, the District court’s ruling was affirmed. Therefore, summary judgment was granted in favor of the Department.

Practicality of Actual Injury in Data Breach

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

Imagine being one of four million members under the care of Advocate Health and Hospitals Corporation (Advocate) and waking up to news that thieves have stolen your confidential information.  This is exactly what happened the morning after July 15, 2013, when burglars stole four password-protected computers from Advocate.   The computers contained patient’s confidential information: social security numbers, Medicare and Medicaid data, medical record numbers, health insurance data, and medical diagnoses along with names, addresses, and date of birth.  Advocate, whom patients entrusted with the duty of protecting their data, did not notify them of the breach until August 23, 2013.  Despite these facts, no proof of improper access or improper use of the confidential information actually occurred.

Matias Maglio and other affected patients brought a class action suit against Advocate in the circuit court of Lake County and Kane County.  Both lawsuits alleged claims of negligence, invasion of privacy, and violations of the Consumer and Deceptive Business Protection Act and the Illinois Personal Information Act.  Yet, plaintiffs failed to allege any unauthorized uses of their private information.  Despite the fact plaintiffs did not suffer any actual injury, they moved forward with their lawsuits anyhow.

Advocate moved to dismiss the complaints under the Rules of Civil Procedure for failure to state a claim and for lack of standing.  The plaintiffs did not suffer an injury-in-fact and only speculated that their stolen confidential information may lead to increased risk of identity fraud.  The doctrine of standing requires a plaintiff to raise issues of a real injury to which the law can recognize so to provide a remedy.  The complaints only alleged future, uncertain risk of identity fraud. The district courts of Lake County and Kane County dismissed the complaints in May and July of 2014, respectively.

However, the plaintiffs appealed to the Appellate Court of Illinois on grounds that the lower courts erred in its decisions.  The appellate panel consolidated the cases from the two counties and affirmed the district court’s decisions in Maglio v. Advocate Health and Hospitals Corporation on August 6, 2015.

The appellate panel reiterated that plaintiff’s failure to establish any specific injury makes the lawsuits insufficient.  To date, only two of the 4 million members suffered actual identity theft and they are not parties in the lawsuits.  The court held that this fact alone does not prove that plaintiffs face certain imminent risk of substantial harm.  Speculating about a future injury or harm is not grounds for a claim in the court of law.  To move forward, plaintiffs must show that their medical records were in fact disclosed to third parties.

Although the breach did not result in unauthorized use of information, speculation is not a cause for action.  To help lessen the burden on the courts, plaintiffs have to make sure their claims contain actual injuries otherwise it is a waste of resources for parties involved.  It may seem minor to determine actual injury, but the practicality is priceless.  As society increasingly depend on technology to store confidential information, employers (especially healthcare providers) should make data security one of the top priorities.  Employers should consider safeguards such as encryption and periodic audits to lessen the likelihood of a data breach. Proper training about HIPAA, security regulations and data privacy laws will further guard against a breach.

Coming Back to Bite You: Immunity for Expert Witnesses

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

Can teeth marks on a body come back and bite you for falsifying your opinion during trial? The Seventh Circuit Court of Appeal issued an opinion explaining the immunity for expert witnesses. In Stinson v. Gauger, the court reviewed a case where an expert’s opinion resulted in a man being wrongly accused and sentenced for murder. Judge Sykes wrote the Opinion for a three-judge panel.

Robert Lee Stinson spent 23 years in prison for a murder that he did not commit. He was exonerated by DNA evidence. Stinson alleges that the two odontologists—key witnesses for the prosecution—fabricated their opinion. Stinson burger alleges that the detective in the case—Mr. Gauger—put them up to it and collectively the three suppressed evidence of the fabrication in violation of his due process of law.

The bite marks found on the victim showed that her killer had one missing tooth in the upper right lateral incisor and a twisted tooth in the same area. Stinson’s dental records were similar to those of the killer’s, but did not actually match. Stinson was missing his front right central incisor and had a damaged tooth, which resembled the killer’s dental records. Nonetheless, Dr. Raymond and Dr. Johnson testified that the bite marks on the victim implicated Stinson.

The Court examined three issues: 1) Appellate Jurisdiction;  2) Absolute Immunity; and 3) Qualified Immunity.  Did the appeal raise a question of law about historical facts? An order denying summary judgment usually lacks the finality required for appellate jurisdiction, but orders denying claims of immunity from suits are an exception. The odontologist and Gauger accepted Stinson’s version of historical facts, but they argued that the facts do not amount to violation of a constitutional right. As a result of this case being a legal question of a qualified-immunity claim, the district court order qualified for immediate appeal.

A witness has absolute immunity from suits on claims from their testimony at trial and from the preparation to testify at trial. Misconduct committed while investigating the case is not qualified for absolute immunity. Even if the doctors falsely testified at trial, they cannot be sued solely on that testimony in a civil suit. Stinson accused the odontologist of fabricating their opinions during the investigation before probable cause existed. Based on the principles outlined in Buckley v. Fitzsimmons, absolute immunity does not apply to this alleged misconduct.

To be protected under qualified immunity, Stinson had to possess evidence that showed the odontologist’s conduct violated a constitutional right and the right was established at the time of their actions. Stinson alleged that his Fourteenth Amendment right was violated. Stinson believed the doctors and the detective conspired to frame him with fabricated evidence. In order to suffice this requirement, an expert has to know their information is wrong and still use the false information. The defendant’s expert at the initial trial failed to show that the information given was fabricated. Stinson’s own expert missed the errors that were later identified and, therefore, there was no suppression of evidence.

The Seven Circuit ruled that the defendants are not protected under absolute immunity because Stinson accused them of fabricating their opinion during the investigative phase, but they are entitled qualified immunity because they did not violate Stinson’s due process rights by fabricating their opinions since there was not any showing that they intentionally fabricated their opinion, and the detective did not violate Stinson’s due process right and was also entitled to qualified immunity.

This case shows that witnesses should be held responsible for their testimonies and that all individuals—despite being accused of a crime—should be awarded the same protection as everyone else. Additionally, this case illustrates the demand for immunity to be granted to expert witnesses so they will feel free to tell the truth to the best of their overall knowledge without the threat of being sued for a mere mistake. However, one question remains with this type of interpretation: Would this allow experts to say what they want geared by their personal opinions?

Conflict Over Contraceptive Mandate Drags On

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

On Sept. 4, 2015, the Seventh Circuit decided, yet again, on the issue of whether the contraceptive mandate violates the sincere beliefs of nonprofit religious groups.  Nonprofit religious groups continue to challenge the mandate while seeking for an “exemption” instead of an “accommodation.”  The plaintiffs in Grace Schools et al. v. Burwell argued the Patient Protection and Affordable Care Act  of 2010 (ACA) places undue burdens on the free exercise of their First Amendment right and that it violates the Religious Freedom and Restoration Act of 1993 (“RFRA”).  Plaintiffs insist the mandate infringes on their sincere religious exercise against facilitating a wrongful act of others (i.e., the use of birth control by employees through health plans funded by religious employer).

After the district court granted plaintiff’s preliminary relief against the mandated coverage on Dec. 3, 2014, the government appealed to the Seventh Circuit.  The parties’ dispute centered on the “substantial burden” of the law.  When a law burdens a person’s exercise of religion, the government must proceed in the “least restrictive means” in order to further a “compelling interest.”  The plaintiffs objected to the mandate’s complicit orders because they believe their connection to destroying an embryo is an immoral act that imposes a substantial burden which violates the RFRA.  The Seventh Circuit denied this argument and stood firm with prior decisions.

The Seventh Circuit denied arguments of the University of Notre Dame and Wheaton College, decided May and July, 2015, respectively, where both schools sought preliminary injunctions on grounds that the ACA violated their religious beliefs and the First Amendment in providing birth controls of any kind to its employees and students.  In both cases, the court employed the substantial burden analysis and determined the contraceptive mandate did not infringe on their religious exercise.  A particular kind of religious belief – facilitating another person’s wrongful act – has no protection under the RFRA, declared the court.  But does the government have any business in discriminating against a certain belief and not others?  Should the court shift its focus to whether the government has pressured the religious group to give up a certain belief?

The government contends the contraceptive mandate imposes no substantial burden because it allows plaintiffs to opt for an “accommodation.”  To avoid fines, nonprofits who opposes the mandate must contact the Department of Health and Human Services and voice their objection or submit a EBSA Form 700.  After a nonprofit protest, the contracted insurers or third-party administrators are obliged to provide contraceptive coverage for the employees without co-pay.  However, the nonprofits are at odds with the accommodation because their health plans are used to fund contraceptive services to which they object.

In a forceful dissent, Judge Manion said the religious groups has no relief under the contraceptive provisions because the coverage is connected to the health plans that depended on their actions.  Judge Manion proclaimed, “the government’s stated interest is overbroad, underinclusive, and marginal at best.”  As the conflict over contraceptive mandate drags on, are decisions handed down by the court of appeals an unequal treatment of religious exercises?

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