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Tuesday, December 11, 2012

ind. Courts - 7th Circuit rules on Illinois "ready-to-use" gun law [Updated]

In Michael Moore v. Lisa Madigan, AG (CD & SD Illinois), a 47-page, 2-1 opinion (including the 26-page dissent), Circuit Judge Posner writes:

These two appeals, consolidated for oral argument, challenge denials of declaratory and injunctive relief sought in materially identical suits under the Second Amendment. An Illinois law forbids a person, with exceptions mainly for police and other security personnel, hunters, and members of target shooting clubs, 720 ILCS 5/24-2, to carry a gun ready to use (loaded, immediately accessible—that is, easy to reach—and uncased). There are exceptions for a person on his own property (owned or rented), or in his home (but if it’s an apartment, only there and not in the apartment building’s common areas), or in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun. [cites omitted] Even carrying an unloaded gun in public, if it’s uncased and immediately accessible, is prohibited, other than to police and other excepted persons, unless carried openly outside a vehicle in an unincorporated area and ammunition for the gun is not immediately accessible. [cites omitted]

The appellants contend that the Illinois law violates the Second Amendment as interpreted in District of Columbia v. Heller, 554 U.S. 570 (2008), and held applicable to the states in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010). Heller held that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635. But the Supreme Court has not yet addressed the question whether the Second Amendment creates a right of self-defense outside the home. The district courts ruled that it does not, and so dismissed the two suits for failure to state a claim. * * *

We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand them to their respective district courts for the entry of declarations of unconstitutionality and permanent injunctions. Nevertheless we order our mandate stayed for 180 days to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment as interpreted in this opinion, on the carrying of guns in public.

REVERSED AND REMANDED, WITH DIRECTIONS;
BUT MANDATE STAYED FOR 180 DAYS.

WILLIAMS, Circuit Judge, dissenting. [that begins, at p. 22 of 47] The Supreme Court’s decisions in Heller and McDonald made clear that persons in the state of Illinois (unless otherwise disqualified) must be allowed to have handguns in their homes for self-defense. But those cases did not resolve the question in this case—whether the Second Amendment also requires a state to allow persons to carry ready-to-use firearms in public for potential self defense. The majority opinion presents one reading of Heller and McDonald in light of the question presented here, and its reading is not unreasonable. But I think the issue presented is closer than the majority makes it out to be. Whether the Second Amendment protects a right to carry ready-to-use firearms in public for potential self-defense requires a different analysis from that conducted by the Court in Heller and McDonald. Ultimately, I would find the result here different as well and would affirm the judgments of the district courts.

[Updated at 5:17 PM] The Washington Post has this long AP story, headed "Federal appeals court strikes down concealed carry ban in Illinois, the last state to have one." The story begins:
CHICAGO — In a major victory for gun rights advocates, a federal appeals court on Tuesday struck down a ban on carrying concealed weapons in Illinois — the only remaining state where carrying concealed weapons is entirely illegal — and gave lawmakers 180 days to write a law that legalizes it.

In overturning a lower court decision, the 7th U.S. Circuit Court of Appeals said the ban was unconstitutional and suggested a law legalizing concealed carry is long overdue in a state where gun advocates had vowed to challenge the ban on every front.

“There is no suggestion that some unique characteristic of criminal activity in Illinois justifies the state’s taking a different approach from the other 49 states,” Judge Richard Posner, who wrote the court’s majority opinion. “If the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it.”

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Ind. (7th Cir.) Decisions

Courts - "Justices to Take Up Generic Drug Case"

This long Dec. 7 story in the NY Times, reported by Edward Wyatt, begins:

WASHINGTON — The Supreme Court said on Friday that it would decide whether a pharmaceutical company should be allowed to pay a competitor millions of dollars to keep a generic copy of a best-selling drug off the market.

The case could settle a decade-long battle between federal regulators, who say the deals violate antitrust law, and the pharmaceutical industry, which contends that they are really just settlements of disputes over patents that protect the billions of dollars they pour into research and development.

Three separate federal circuit courts of appeal have ruled over the last decade that the deals were allowable. But in July a federal appeals court in Philadelphia — which covers the territory where many big drug makers are based — said the arrangements were anticompetitive.

Both sides in the case supported the petition for the Supreme Court to decide the case, each arguing that the conflicting appeals court decisions would inject uncertainty into their operations.

By keeping lower-priced generic drugs off the market, drug companies are able to charge higher prices than they otherwise could.

For more, see Lyle Denniston's SCOTUSblog post, updated Monday after the case was docketed.

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Courts in general

Ind. Decisions - "Appeals court tosses young inmate Paul Henry Gingerich's murder conviction"

Here is the Indianapolis Star reporter Robert King's initial story [ILB: the link now goes to the final, 12/12/12 story] on this morning's COA reversal in Gingerich v. State (ILB summary here). Some quotes:

The Indiana Court of Appeals, ruling 3-0, found that the lower courts erred by not giving Gingerich’s attorneys more time to argue that his case should stay in the juvenile system. Gingerich, now 14, had been serving a prison term that was likely to keep him in jail until he was 24.

The decision means the case will start all over – going back to the juvenile court for a new hearing. The state could still argue – and potentially win – the right to move the case again back to the Circuit Court. But now, Gingerich’s attorneys will get time to prepare their case for keeping it in juvenile court. Two years ago, a judge in Kosciusko County gave Gingerich’s attorneys only four days. Gingerich’s attorneys argued that, in Marion County, for example, defendants get up to three months to prepare.

Here is Niki Kelly's coverage in the Fort Wayne Journal Gazette.

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending Dec. 7, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, Dec. 7, 2012. It is one page (and 12 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In Paul Henry Gingerich v. State of Indiana, a 36-page opinion in a nationally reported case, Judge Brown writes:

Paul Henry Gingerich appeals his conviction for conspiracy to commit murder as a class A felony. Gingerich raises five issues, one of which we find dispositive and which we revise and restate as whether the juvenile court abused its discretion when it denied Gingerich’s request for a continuance of the waiver hearing. We reverse and remand. * * *

Before turning to the merits of Gingerich’s claim, however, we first address the State’s argument raised on cross-appeal that Gingerich’s appeal should be dismissed because he waived his right to appeal in his plea agreement and by pleading guilty. * * *

Having determined that Gingerich has not waived his ability to challenge the denial by the juvenile court of his request for a continuance, we turn to the arguments of the parties, as well as the arguments of Amicus MCPDA and Amicus CLC, which aided in our analysis. * * *

As noted above, the crux of the arguments of Gingerich and the amici are essentially that the juvenile court’s denial of the continuance prohibited Gingerich from receiving a full and fair opportunity to present his claims, i.e., a denial of due process. * * *

[W]e find that the juvenile court abused its discretion when it denied Gingerich’s request for a continuance. * * *

For the foregoing reasons, we reverse Gingerich’s conviction for conspiracy to commit murder as a class A felony, and we remand for proceedings consistent with this opinion.

In James O. Young v. State of Indiana , a 16-page opinion, Judge Mathias writes:
Following a jury trial in Elkhart Superior Court, James Young (“Young”) was found guilty of Class D felony domestic battery in the presence of a child and Class D felony strangulation. Young appeals and argues that (1) the hearsay testimony of two firefighters regarding the victim’s statements to them violated his rights under the Confrontation Clause of the Sixth Amendment of the Constitution of the United States; (2) the hearsay testimony of a police officer regarding the victim’s later statements to her was inadmissible hearsay and violated his rights under the Confrontation Clause of the Sixth Amendment; and (3) there was insufficient evidence to support the convictions and to prove that Young committed the offenses in a child’s physical presence so as to elevate the domestic battery offense from a Class A misdemeanor to a Class D felony.

We affirm in part, reverse in part, and remand for proceedings consistent with this opinion. * * *

The trial court did not abuse its discretion when it admitted the firefighters’ hearsay testimony of Medrano’s version of the incident. However, admission of Officer Stuff’s hearsay testimony was error and could not be harmless error. We therefore reverse Young’s conviction for Class D felony strangulation, subject however to possible retrial. Further, the evidence was insufficient to support Young’s conviction for domestic battery as a Class D felony but sufficient to support the lesser-included charge of Class A misdemeanor domestic battery; therefore, we remand with instructions that judgment of conviction for domestic battery as a Class A misdemeanor be entered against Young and that he be resentenced accordingly.

NFP civil opinions today (3):

Douglas A. Schwan v. Linda D. Schwan (NFP)

Richard A. Walls v. Janet Walls (NFP)

Garland Aschenbrenner, Winifred Aschenbrenner, and South Bend Carpetland USA, Inc., d/b/a Abbey Carpets and Floors v. Melvin H. Sandock Inter Vivos Revocable Trust, et al. (NFP)

NFP criminal opinions today (5):

Johnny Mosby v. State of Indiana (NFP)

Phyllis Allen v. State of Indiana (NFP)

Chad E. Aslinger v. State of Indiana (NFP)

Steven T. Lakes v. State of Indiana (NFP)

Bradley S. Sater v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - Court of Appeals hears Duke Energy ice storm appeal

From Bloomberg BusnessWeek, this AP report by Rick Callahan on yesterday's oral argument. Some quotes:

INDIANAPOLIS (AP) — An attorney for Duke Energy Corp. urged the Indiana Court of Appeals on Monday to reverse a state regulatory panel's decision blocking the company's attempt to pass onto its customers the cost of damages it incurred during a 2009 ice storm.

Duke Energy attorney Jon Laramore said during oral arguments that the Indiana Utility Regulatory Commission's October 2011 order was an "arbitrary and capricious action."

That order came more than a year after the regulatory panel ruled in Duke Energy's favor in its initial request to pass onto its customers $11.6 million in power-outage repair costs following a January 2009 ice storm. Those costs would have been considered during the Charlotte, N.C.-based company's next rate case.

But the regulatory agency reversed itself after it reviewed the ice storm issue in the wake of an ethics case that followed Duke Energy's hiring of the panel's former chief counsel, Scott Storms.

Laramore told the three-judge court it was a "puzzling" about-face because the court made completely different rulings based on the same evidence.

"They came to polar opposite conclusions based on the same set of facts," he said.

However, Judge Nancy Vaidik pressed Laramore on that contention, noting that the commission's second order on the matter was based only on the ice storm case. In contrast, in its initial July 2010 decision, the panel had considered the impact of both a September 2008 windstorm and the ice storm that four months later left tens of thousands of southern Indiana residents without power for days.

Judge Paul Mathias noted other differences, including that the commission's staff was not the same one that that issued the first order.

David Steiner, an attorney for the commission, told the court that the utility panel had reviewed different information leading up to its second order, including new testimony in the case from a top Duke Energy executive.

"This was a completely new look at the evidence," Steiner said, adding that the decision was "fully supported by the law and the facts."

Storms, who had been both the commission's top attorney and its administrative law judge, was fired by Duke Energy in November 2010 after just two months on the job after it came to light that he discussed a position with Duke Energy while presiding over hearings concerning the company.

See also this ILB entry from Dec. 5.

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Indiana Courts

Ind. Decisions - "LaPorte High athletic director may face trial in failure to report abuse"

Yesterday's Court of Appeals opinion yesterday in Edward Gilliland v. State of Indiana (ILB summary here) is the subject of a story by Dan Carden in today's NWI Times:

INDIANAPOLIS | The Indiana Court of Appeals on Monday cleared the way for a trial to determine whether the LaPorte High School athletic director should have reported child abuse he allegedly knew took place.

Edward Gilliland was charged last year with two misdemeanor counts of failing to report child abuse or neglect. He allegedly did not contact authorities when parents of students on the school's volleyball team told him in 2007 the assistant coach was rubbing lotion on players' bodies and spending time alone with one student before and after school.

That assistant coach, Robert Ashcraft, 48, later was convicted of four felonies involving sexual conduct with a 15-year-old student-athlete. He's currently serving 21 years in prison.

Gilliland argued in his appeal of LaPorte Superior Judge Jennifer Koethe's decision denying his motion to dismiss that the 2011 charges were barred by the state's two-year statute of limitations for misdemeanors. Gilliland also claimed the reports of a potentially inappropriate relationship were not evidence of child abuse.

The appeals court rejected both claims.

It ruled the statute of limitations does not apply because Gilliland helped conceal Ashcraft's crime by telling LaPorte police in 2008 that he "had no knowledge whatsoever" why Ashcraft resigned, despite Gilliland having recorded the parents' concerns in Ashcraft's personnel file.

In addition, the court said evidence of a sexual relationship isn't required to trigger the duty to report, just awareness of inappropriate contact.

"It is for a jury to determine whether Gilliland had reason to believe (the student) was a victim of child abuse or neglect based on his knowledge that Ashcraft had given foot rubs to (the student) and rubbed lotion on her back," the court said.

A different three-judge Court of Appeals panel ruled last month that MaryBeth Lebo, the former head volleyball coach at LaPorte High School, can also be tried for failing to report child abuse.

Posted by Marcia Oddi on Tuesday, December 11, 2012
Posted to Ind. App.Ct. Decisions