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Articles by Christopher Zoukis

Colorado Supreme Court Affirms Double Enhancement for Assault of Prison Guard

by Christopher Zoukis

The Colorado Supreme Court has upheld a trial court's decision to sentence a prisoner to a consecutive term for assaulting a prison guard and to enhance the sentence because it was committed by a prisoner in custody.

Curtis Gordon Adams was found guilty of second degree assault for kicking and head-butting a guard at the Colorado State Penitentiary. He was sentenced to a consecutive term of 12 years, enhanced from the statutory range of two to six years because the assault was committed while Adams was in prison as a felon. This would not be an unusual or noteworthy turn of events were it not for one thing: the second degree assault which Adams was convicted of and given a consecutive sentence for included a requirement that the assault was committed while he was in prison as a felon.

In practice, this meant that Adams was subjected to two different enhancements for the same action -- committing an assault on a guard while in prison.

The intermediate-level appeals court found that this was an improper double enhancement and vacated Adams' 12-year consecutive sentence. The Colorado Supreme Court disagreed, reversed and re-imposed the sentence.

The court reasoned that ...

Arizona Supreme Court Clarifies Proper Standard for Reviewing Search of a Probationer's Home

by Christopher Zoukis

The Arizona Supreme Court has cleared up confusion in the state about the amount of suspicion required to legally search a probationer's home without a warrant.

Christian Adair was on probation for two felony convictions for solicitation to possess crack cocaine for sale. His probation conditions required that he "submit to search and seizure of person and property" by the probation department without a warrant. Based on uncorroborated information provided by a confidential informant who refused to be named in a police report, probation officers and local police conducted a warrantless search of Adair's residence.

The search uncovered crack cocaine, scales, packaging material, $450 in cash, a gun and ammunition. Adair was charged with felony possession of narcotic drugs for sale, possession of drug paraphernalia and misconduct involving weapons. His probation officer also filed a petition to revoke his probation.

Adair moved to suppress the evidence, arguing that the search was "a warrantless, pretextual police search, not a search by probation officers pursuant to the probation conditions." Adair also argued that the search was improper because the police did not have reasonable suspicion. The trial court agreed and suppressed the evidence.

The appellate court disagreed ...

Eleventh Circuit Slams Douglas County, Georgia Sheriff's Office for Retaliation Against Whistle-Blower

by Christopher Zoukis

The United States Court of Appeals for the Eleventh Circuit has issued a stinging opinion in which it firmly rebukes the retaliatory actions of the Douglas County, Georgia Sheriff's Office.

Derrick Bailey, an African-American police officer with 17 years of law-enforcement experience, was hired by the City of Douglasville Police Department in March 2010. By all accounts, Bailey was a competent police officer, and he received above-average employee performance reviews between May 2010 and June 2012.

But something was wrong in Douglas County, and Bailey spoke up. In April 2011, he filed a written complaint with his chief reporting that city police officers and county deputies were "racially profiling minority citizens and committing other constitutional violations." Bailey also noted the racially insensitive environment created by local officers, citing jokes describing black males as "black as shoe polish wearing all black" and referring to the City of Douglasville's logo (which includes an illustration of a tree) as a "lynching tree."

In the fall of 2012, supervisors undertook efforts to rid themselves of Bailey. He was ordered to rewrite incident reports, and when he complained that doing so would violate Department policy, he was fired. Bailey appealed ...

California Appeals Court Reverses Termination of Parental Rights for Indian Child Welfare Act Notice Violation

by Christopher Zoukis

The California Court of Appeal for the First Appellate District has reversed a lower court's order terminating the parental rights of two imprisoned parents due to a failure to comply with the Indian Child Welfare Act of 1978.

The children, O.C., age two, and M.C., age four, were detained after their parents' residence was raided and their parents jailed. Over a period of months, the Mendocino County Health & Human Services Agency, Children and Family Services (the Agency) attempted to provide reunification services to the mother while the father remained jailed. The mother was eventually imprisoned as well, and the Agency abandoned reunification efforts. As required by California law, the Agency instituted proceedings to terminate parental rights and to put the children up for adoption. After several hearings, the trial court terminated both parents' rights, and approved the children for adoption.

The mother appealed, arguing that the children had possible Native American ancestry on both sides of their family. As such, notice to potential tribes was required pursuant to the Indian Child Welfare Act of 1978 (ICWA). According to the appellate court, the ICWA "reflects a congressional determination that it is in the best ...

Seventh Circuit Passes on Opportunity to Weigh in on Police Use of Cell-Site Simulators

by Christopher Zoukis

The United States Court of Appeals for the Seventh Circuit has refused to remand a case for further fact-finding about the government's use of cell-site simulators during investigations.

Damian Patrick was wanted for violating parole. In an effort to locate him, Milwaukee police obtained a search warrant which authorized the use of cellphone data. The warrant specifically authorized the collection of data from Patrick's cellphone service provider in order to locate him. Unbeknownst to the magistrate that issued the warrant, the Milwaukee police employed a cell-site simulator, also known as a Stingray, in order to find Patrick.

When Patrick was located, he was in the passenger seat of a car. A gun was in plain view, and he was ultimately charged and convicted of being a felon in possession of a firearm. He appealed the conviction, arguing that his arrest was unlawful. Patrick initially made no argument about the use of a Stingray device, because the government did not reveal its use until after he filed his opening brief.

The appellate court found the arrest to be lawful, because the Milwaukee police "were entitled to arrest him without a warrant of any kind, let alone ...

Prison Cannot Restrict Legal Visits by a Prisoner's Family Member/Attorney

by Christopher Zoukis

Michigan Department of Corrections Rule 607, which mandated that an attorney who is also a family member of a prisoner could not have legal visits with the prisoners, has been ruled unconstitutional.

The Rule was struck down by a federal court after prisoner John Vincent, Jr. (prisoner Vincent) and John Vincent, Sr. (attorney Vincent) sued over the restriction. The Vincents claimed that Rule 607 violated attorney Vincent's First Amendment right to practice law and his Fourteenth Amendment right to equal protection. They also claimed that the Rule violated prisoner Vincent's First and Sixth Amendment right to retain an attorney of choice and his right to access the court system.

The Michigan DOC argued that Rule 607 was necessary to defend against smuggling.

"If the attorney is a family member, there is some concerns [sic] that that family member might be more likely to be convinced to either smuggle contraband or assist a prisoner with escape," argued Michigan DOC employee Marjorie Van Ochten. "And it's not that one type of an attorney is more likely than the other, it's that a family member, because of their relationship with an individual, would be more likely ...

City of New York Settles Police Beating Case for $614,500

by Christopher Zoukis

The City of New York and two NYPD officers have settled a lawsuit alleging multiple beatings at the hands of officers.

Jateik Reed, William Reid and Trevor Nigel alleged that they were improperly stopped and frisked outside their home in January 2012. During the stop and frisk ...

Maryland Court of Special Appeals Upholds $200,000 Award for Police Shooting of Dog

by Christopher Zoukis

The Maryland Court of Special Appeals has affirmed a damages award against a Franklin County Sheriff Deputy who shot a family dog while attempting to serve an arrest warrant.

The deputy, Timothy Brooks, went to the house of Roger and Sandra Jenkins in order to arrest their ...

Second Circuit Rules Against American Civil Liberties Union on Drone Strike FOIA Request

by Christopher Zoukis

The United States Court of Appeals for the Second Circuit has denied a Freedom of Information Act (FOIA) request in which the American Civil Liberties Union requested documents from several government agencies relating to the use of lethal drone strikes.

The requests were initially made by the American Civil Liberties Union and The New York Times in October 2011 to the Department of Justice, the Department of Defense, and the CIA. The government withheld many documents, and years of litigation ensued. The ruling by the Second Circuit was the third time it heard an appeal of the case. Previous rulings ordered the release of a redacted version of a DOJ Office of Legal Counsel memorandum which argued the legal justification for the drone strikes that specifically targeted and killed three American citizens.

This appeal involved 52 documents that the district court ordered withheld as exempt, and seven documents that the district court ordered released. The appellate court upheld the withholding of the 52 documents and reversed the release of the other seven. All of the documents were deemed to be protected from disclosure by FOIA Exemption 5, which prevents the release of "predecisional drafts." A predecisional draft ...

Media Companies Denied Damages and Fees in Public Records Litigation

by Christopher Zoukis

Five media companies, including The Associated Press, were denied statutory damages and attorney's fees in an unsuccessful public records request filed in Cincinnati, Ohio. The suit, filed over a body-camera video from a police shooting, was denied by the trial court. The Ohio Supreme Court affirmed the denial.

The plaintiff media companies requested the video immediately following the July 19, 2015 shooting of Samuel DuBose by University of Cincinnati police officer Ray Tensing. The Cincinnati Police Department, the Office of General Counsel for the University of Cincinnati and the Hamilton County Prosecutor's Office all denied the request. The prosecutor's office specifically declined to release the video for fear that it would jeopardize a future fair trial, and because it constituted confidential law enforcement investigatory records.

"The law supports our position to not release the video," said the prosecutor's office. "If you do not want to look at the law and just use your common sense, it should be clear why we are not releasing the video only a few days after the incident occurred. We need time to look at everything and do a complete investigation so that the community is satisfied that ...


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Federal Prison Handbook




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