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Thursday, August 13, 2009

Ind. Decisions - 7th Circuit issues one Indiana opinion; several others of interest

In U.S. v. James Daniel (ND Ind., Judge Lozano), a 6-page opinion, Judge Wood writes:

In this appeal, we once again consider issues arising from an August 2006 police operation in Indiana designed to catch predators using internet chat rooms to persuade minors to engage in sexual activity. James Daniel was ensnared in the operation’s net when he struck up a chat with someone calling “herself” Amanda_13. Unbeknownst to him, he was really communicating with a male officer claiming to be a 13-year-old girl. But the government failed to realize the extent of its own sting operation. During Daniel’s trial, the prosecution introduced two chat sequences found on Daniel’s computer that apparently involved minor girls. What the government did not notice until sentencing was that one of those “girls,” daisy13_Indiana, was actually an officer from the same Indiana operation. And that was not all. To our surprise, the government was unaware until this panel told it at oral argument that the other screen name, blonddt, was also an officer from the Indiana operation. Daniel asserts that the government’s failure to disclose the identity behind these two screen names violated Brady v. Maryland, 373 U.S. 83 (1963), and thus entitles him to a new trial. Because the information was not material to Daniel’s trial, we affirm his conviction and sentence.
In a case out of Illinois, Pollack and Blue Eco Legal Council v. U.S. DOJ, a 22-page opinion, Judge Manion writes:
The United States government operates a gun range on the shores of Lake Michigan. The plaintiffs brought suit against several governmental agencies, alleging that the discharge of bullets into the lake violates various environmental laws. The district court dismissed the suit for want of jurisdiction after concluding the plaintiffs lacked constitutional standing. The plaintiffs appeal, and we affirm. * * *

To establish standing, the plaintiffs relied on affidavits submitted by Pollack and another Blue Eco member, Darren Miller, who is also a resident of Highland Park. Pollack’s affidavit stated that he enjoyed watching birds in the Great Lakes watershed, visited public parks along the Lake Michigan shoreline, drank water from Lake Michigan at his home in Highland Park, and ate freshwater and ocean fish. Miller’s affidavit was nearly identical to Pollack’s.

The defendants moved for dismissal under Federal Rule of Civil Procedure 12(b)(1), arguing that the court lacked subject-matter jurisdiction because Pollack and Blue Eco did not possess constitutional standing to assert their claims. The district court granted the motion, concluding first that Pollack and Miller’s concern over drinking water did not provide standing because the drinking water in Highland Park was below the environmental limit on lead pollution allowed by the city government, thereby negating any claim of harm by Pollack and Miller. Moreover, the district court held that their concerns over birds, fish, and wildlife were too general and did not allege any particular or specific harm that had been caused by the bullets. The district court concluded that because Pollack and Miller did not possess standing, Blue Eco did not possess standing on their behalf. Accordingly, the district court dismissed the suit for lack of subjectmatter jurisdiction. The plaintiffs appeal. * * *

Because neither Pollack nor Miller has demonstrated that they were concretely affected by the shooting activities they challenge, neither individual has standing to pursue this case. Accordingly, neither Pollack nor Blue Eco has standing. The district court’s dismissal of this suit for lack of subject-matter jurisdiction is AFFIRMED.

Judge Cudahy, concurring, writes beginning at p. 14: This is without question a close case. As the case law laid out by the majority suggests, “injury in fact” can be an elusive phenomenon. Although in the present case an injury is arguably traceable to the deposit of toxic substances in potable water, such phenomena appear and disappear from one case to the next depending on subtle twists in the allegations, turning between the real and the hypothetical. Compare generally Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Scalia, J.), and Summers v. Earth Island Institute, 129 S.Ct. 1142 (2009) (Scalia, J.), with Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) (Ginsburg, J.). I write separately to make the point that the Supreme Court’s case law on this subject is both unclear in purpose and extraordinarily difficult to reconcile. Close cases like this one ought to make that point clearly. In particular, where a citizen-suit provision potentially sets the bar for proving the merits lower than the bar for proving standing, it is incumbent upon us to carefully examine why the plaintiff before us either has or has not established “injury in fact.” Perhaps more important, this plaintiff’s case has procedural flaws not addressed by the majority.

In another case out of Illinois, Gayle Schor et al v. City of Chicago, a 10-page opinion, Judge Wood writes:
Gayle Schor, Kristine Mulcahy, and Angela Shue (collectively, the “plaintiffs”) brought this suit in the district court as a class action, challenging the constitutionality of a Chicago municipal ordinance that prohibits the use of wireless telephones without a “hands-free” device while driving a motor vehicle. See MUNICIPAL CODE OF CHICAGO, ILL. § 9-76-230 (the “Ordinance”). The case was nipped in the bud by the district court with a dismissal for failure to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). The district court also denied the plaintiffs’ request for leave to amend their complaint on the basis that any amendment would be frivolous. See FED. R. CIV. P. 15(a). The district court was right: this case has no legs whatever. We therefore affirm the judgment.

Posted by Marcia Oddi on August 13, 2009 11:29 AM
Posted to Ind. (7th Cir.) Decisions