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Monday, December 19, 2005

Ind. Decisions - Two from 7th Circuit

Two cases today from the 7th Circuit, neither Indiana-based:

Jacobs v. Paul Revere Life deals with an exclusion in a disability insurance policy.

In U.S. v. Sperberg, an opinion by Judge Easterbrook, the question is "whether, after Leocal, felony drunk driving is a 'violent felony' under §924(e)(2)(B)(ii)."

Our decision in United States v. Rutherford, 54 F.3d 370 (7th Cir. 1995), gives an affirmative answer, holding that drunk driving poses serious risks to other motorists and pedestrians—which is, after all, why it is forbidden. * * *

Other circuits are divided on the question whether, after Leocal, felony drunk driving is a “violent felony” under §924(e)(2)(B)(ii). One holds that it is. United States v. Moore, 420 F.3d 1218, 1224 (10th Cir. 2005). A panel of the eighth circuit has gone the other way. See United States v. Walker, 393 F.3d 819, 828 (8th Cir. 2005). But disagreement within that court has led to rehearing in United States v. McCall, 397 F.3d 1028 (8th Cir.), rehearing en banc granted, 2005 U.S. App. LEXIS 7043 (argued Sept. 12, 2005), where a divided panel followed Walker but doubted its correctness. If we were to switch sides, it would more likely aggravate than eliminate a conflict. Rutherford shall remain this circuit’s position.

Posted by Marcia Oddi on December 19, 2005 01:41 PM
Posted to Ind. (7th Cir.) Decisions