Anne Hemenway—Senior Attorney

Robert Westendorf—Senior Attorney

Jason Holder—Senior Attorney

Anne Hemenway—Senior Attorney

            In United States v. Rahimi, 144 S. Ct. 1889, 219 L. Ed. 2d 351 (2024), the United States Supreme Court, in an unusual nearly unanimous 8-1 decision, upheld a 1994 federal criminal law, 18 U.S.C. § 922(g)(8), against a challenge that the law violated the Second Amendment. The statute bans the possession of a gun by someone who has been the subject of a domestic violence restraining order or any order that restrains a person from harassing, stalking, or threatening an intimate partner or child of such partner or engaging in other conduct that would place an intimate partner in reasonable fear of injury.

Anne Hemenway—Senior Attorney

      On March 15, 2024, the United States Supreme Court decided a pair of cases from Michigan and California on the issue of whether a public official violates the First Amendment by blocking individuals from the public official's personal social media page. In the Michigan case, Lindke v. Freed, 601 U.S. 187, 144 S. Ct. 756, 218 L. Ed. 2d 121 (2024), Kevin Lindke, a private citizen argued that James R. Freed, the unelected city manager of Port Huron, Michigan, violated his free speech rights when the unelected official blocked the complaining citizen from his personal Facebook page. In the California case, O'Connor-Ratcliff v. Garnier, 601 U.S. 205, 144 S. Ct. 717, 218 L. Ed. 2d 138 (2024), two elected school board members blocked from their social media pages the parents who criticized the board of trustees. In both cases, the blocked citizens were outraged that they were barred from the private internet sites.

Amy G. Gore—Senior Attorney

         The attorney-client privilege has traditionally limited the disclosure of properly qualified communications between an attorney and a client who is seeking legal advice. The limits of the privilege were tested in a recent Illinois decision in MacDonald v. Wagenmaker, 2024 IL App (1st) 230089, ¶ 1. There, HBC, an evangelical Christian megachurch terminated its senior pastor and retained attorneys to investigate claims of financial misappropriations. The church instructed the attorneys to post a letter outlining the attorneys’ findings on the church website which referenced financial misappropriations by the senior pastor. The pastor brought suit against the attorneys alleging, inter alia, defamation, false light invasion of privacy, and civil conspiracy. During discovery, the pastor sought to subpoena communications between the attorneys, the church, and their accountants to which an attorney-client privilege was asserted. The pastor replied that the crime-fraud exception of the attorney-client privilege destroyed the protection from discovery. The trial court, relying on a passage in Radiac Abrasives, Inc. v. Diamond Technology, Inc., 177 Ill. App. 3d 628, 638 (1988), in which the Illinois Supreme Court indicated that crime-fraud exception could extend to other torts, examined the communications in camera and ruled for the pastor, finding that the attorneys were aware that the publication of the letter may amount to tortious conduct. The trial court’s ruling was reversed by the appellate court.

Charlene Hicks—Senior Attorney

            In Hartley v. Board of Supervisors, 80 Va. App. 1, 897 S.E.2d 217 (2024), the Virginia Court of Appeals issued a published opinion that deliberately discounts the role that a locality’s comprehensive plan must play in the Board of Supervisors’ decision to approve a private rezoning application. The decision also requires a court to view with great leniency the Board’s rezoning decision in light of the requirements set forth in Virginia Code §§ 15.2-2283 and 15.2-2284. Hartley thus paves the way for localities to quite easily effectuate a substantial change in the character of a single parcel of private property from the surrounding neighborhood.

ELECTION LAW:  Federal District Court Judge Orders Georgia Lawmakers to Redraw Congressional Map for the 2024 Election

 Anne B. Hemenway—Senior Attorney

      On October 26, 2023, in three cases similar to the U.S. Supreme Court decision rejecting Alabama's congressional map, the Federal District Court for the Northern District of Georgia in Alpha Phi Alpha Fraternity, Inc. v. Brad Raffensperger, No. 1:21-CV-05337-SCJ, Pendergrass v. Brad Raffensperger, No. 1:21-CV-05339-SCJ, and Grant v. Brad Raffensperger, No. 1:22-CV-00122-SCJ, 2023 U.S. Dist. LEXIS 192080 (N.D. Ga. Oct. 26, 2023), wrote a consolidated 516-page Opinion and Memorandum of Decision also rejecting Georgia lawmakers' congressional maps. In a state where the recent population growth has been almost entirely made up of minority residents, the state's congressional and legislative maps presented to the court did not add more majority-Black districts. Accordingly, the federal court concluded that despite the fact that Black voters have more opportunities, "the political process is not equally open to Black voters." Further, the court concluded that the current U.S. congressional maps presented to the court dilute and diminish the Black population's voting power in the Atlanta area.

Suzanne Bailey, Senior Attorney

            In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court recognized an implied right of action for damages by a victim of a constitutional violation by a federal agent against that federal agent in federal court. In that case, the plaintiff sought damages for a violation of his Fourth Amendment rights when federal narcotics agent conducted a warrantless search of his apartment, arrested him for alleged narcotics violations, and subjected him to excessive force by conducting a visual strip search. Since Bivens, the Supreme Court has recognized an implied right of action against a federal agent committing a constitutional violation in only two other cases, Davis v. Passman, 442 U.S. 228 (1979) (woman discharged from employment by U.S. Congressman a right of action, arising directly under Fifth Amendment due process clause, to recover damages for Congressman's alleged sex discrimination), and Carlson v. Green, 446 U.S. 14 (1980) (administratrix of deceased federal prisoner's estate had cause of action against federal prison officials for violation of deceased's Eighth Amendment right to be free from cruel and unusual punishment by failing to give him proper medical attention). More recently, in Ziglar v. Abbasi, 582 U.S. 120 (2017), the Court stated that recognizing implied causes of action was now a "disfavored judicial activity," noting its consistent refusal "to extend Bivens to any new context or new category of defendants." Id. at 135 (internal quotation marks omitted). Before implying a cause of action, courts must engage in a two-step inquiry: (1) determine whether the claim presents a new Bivens context not previously recognized by the Supreme Court and, if so, (2) determine whether there are special factors counseling judicial hesitation absent action from Congress. Id. at 136-140.

Fred Shackelford—Senior Attorney, National Legal Research Group

            In a case of apparent first impression, the Ninth Circuit Court of Appeals has decided when a cause of action in admiralty for wrongful death accrues. In Deem v. William Powell Co., 33 F.4th 554 (9th Cir. 2022), a shipyard machinist contracted mesothelioma while employed in repairing naval vessels. His illness was diagnosed on February 20, 2015, and he died on July 3, 2015. His wife filed suit within three years of his death but more than three years after the illness was diagnosed. The federal district court ruled that the claim was time-barred because the three-year statute of limitations began to run at the time of the diagnosis.

            The issue on appeal was succinctly stated: "When does a wrongful death claim accrue in a maritime case?" Id. at 559. To decide the question, the appellate court recognized that there is a fundamental distinction between survival actions and wrongful death actions under admiralty law. A survival action is for the benefit of the directly injured victim, while a wrongful death action benefits the decedent’s family members who are deprived of his presence when he dies.