Splits Created or Widened in the Circuits - 3/10

Several interesting decisions were handed down by the circuit courts of appeal on Monday. I was away from a computer for the last day, however, which means that some of the decisions summarized below have been pre-empted by other blogs.

• Do Police Officers Need to Clarify Ambiguous Initial Waivers of Fifth Amendment Rights After United States v. Davis? United States v. Rodriguez, 2008 WL 623982, *11 (9th Cir. Mar. 10, 2008)

The Ninth Circuit creates a circuit split in this case, which has already been extensively covered by Decision of the Day, the California Appellate Report, and the California Blog of Appeal. I won’t rehash all of the angles covered in those posts, rather I argue that the Ninth Circuit is closer to the mainstream on this issue than Decision of the Day or a quick scan of the facts might suggest.

After being Mirandized, Rodriguez responded “I’m good for tonight.” This response could mean either ‘I don’t want to talk at all tonight’ or ‘I’m completely fine to sit and chat for the evening.’ The issue in the case is whether the police need to clarify whether suspects meant to waive their rights by such ambiguous statements. Most of the circuits required clarification prior to United States v. Davis. In Davis, a suspect signed a clear waiver of his rights, and then later ambiguously referenced his right to a lawyer. The Supreme Court said that officers did not need to clarify such ambiguous invocations. Since Davis, both the Seventh and Tenth Circuit have applied the logic of Davis to initial waivers. The Ninth refuses to follow suit, and limits Davis to applying only after a clear initial waiver.

While I think cert is likely (if the government pursues the issue) and the Ninth would be reversed, this decision is not a product of the ‘Ninth Circus.’ As a purely visual matter, the panel had two Republican appointed judges. The decision itself, however, points out its strong support, noting that the majority of State Supreme Courts to have considered the issue similarly limit Davis. They further noted that neither the Seventh nor the Tenth Circuit even discussed the initial/post waiver distinction.

• Must a Court Hold a Faretta Hearing when a Defendant Moves to Proceed Pro Se? United States v. Cano, 2008 WL 623998, *4-*7 (5th Cir. Mar. 10, 2008)

This case involves the rare circumstance where both parties agree that the trial court committed reversible error. Following his trial conviction, Benjamin Cano filed two motions to proceed pro se at sentencing. In the first, he wanted to be treated as co-counsel. The trial court held a hearing on this motion, and Cano accepted representation thereafter. The second motion, filed eighteen days before sentencing, did not involve co-representation but rather self-representation standing alone. The court rejected the second motion without holding a hearing. Both the Government and Cano assert that this constitutes reversible error. In so holding, however, the Fifth Circuit states that failure to hold a Faretta hearing is per se error. This potentially broadens the split previously discussed on this blog between the Third Circuit (yes) and the CAs 4,7,9, and 10 (no)

• Is Poisoning/Drugging a Crime of Violence? United States v. Rodriguez-Enriquez, 2008 WL 624443, *3-*11 (10th Cir. Mar. 10, 2008).

The Tenth Circuit analyzes the above question for eight pages and comes to the conclusion that drugging is not a crime of violence. In the application notes of the USSG § 2L1.2(b)(i)(A)(ii), a crime of violence is defined as one that has an element of physical force. The panel notes that the term ‘physical’ can describe either the consequence of the force or the method of the force. If the former, then drugging/poisoning certainly has physical effects; if the latter, then drugging/poisoning operates through chemical rather than physical pathways.

The panel notes that panels in both the Second and Ninth Circuits have issued opinions that conflict with prior circuit decisions. The latest Second Circuit case says that it is a crime of violence; the latest Ninth says that it is not. The Fifth Circuit en banc ruled that drugging was not a crime of violence, reversing a panel opinion on that point. With the entry of the Tenth Circuit, it looks like the Second Circuit is on the short side of this widening split.

• When, other than judgment on the merits and consent decrees, is a Plaintiff the ‘Prevailing Party’ for Purposes of § 1988 Attorney’s Fees? Dearmore v. City of Garland, 2008 WL 624941, *5-*10(5th Cir. Mar. 10, 2008)

In § 1988, Congress permitted district courts, at their discretion, to award the prevailing party reasonable attorney’s fees in suits brought under certain statutes , creating an exception to the traditional American rule of civil litigation – that each side bears its own costs. The Court has defined the ‘prevailing party’ to mean a material alteration of the legal relationship of the parties with judicial imprimatur. See Buckhannon, 532 U.S. 598, 603-05 (2001). In so doing, it rejected any totally voluntary change in the legal relationship, but did not define what sort of decision fulfilled the necessary judicial imprimatur. In trying to fill this gap, “circuit courts considering this issue have announced fact-specific standards that are anything but uniform.” *7.

This case concerned a plaintiff who obtained a preliminary injunction, after which the defendant changed their behavior and mooted the case. This panel of the Fifth Circuit notes that the Ninth Circuit believes that a preliminary injunction almost always satisfies the prevailing party standard unless the plaintiff subsequently loses on the merits, whereas the Fourth Circuit holds that a preliminary injunction can never satisfy the requirements. The CAs 2,6,7, and 11 hold that a preliminary injunction satisfies the judicial imprimatur standard if the injunction is granted because of the probability of success on the merits, rather than the equities of the case.

The Fifth Circuit itself disavows any general test, preferring to apply the tests of the other circuits – “This Court has not yet created or endorsed a particular test. Instead, this Court has held that a plaintiff who obtains a preliminary injunction is not a prevailing party if he fails to qualify under any of the other circuits' tests.” *8. Applying that standard in the case, the panel notes that the district court’s opinion in granting the injunction did indicate a strong probability of success, and so the plaintiff can be considered a prevailing party. In so holding, the panel widens the split from the Fourth and does appear to create a test: “we hold that the plaintiff (1) must win a preliminary injunction, (2) based upon an unambiguous indication of probable success on the merits of the plaintiff's claims as opposed to a mere balancing of the equities in favor of the plaintiff, (3) that causes the defendant to moot the action, which prevents the plaintiff from obtaining final relief on the merits.” *12.