Meeting the Sin Laws

Today the Eleventh Circuit Court of Appeals affirmed an obscenity conviction but …

The trial of Paul F. Little a.k.a. Max Hardcore included allegations of (1) improper comments by the government during closing argument; (2) improper jury instructions; (3) improper handling of juror irregularities; (4) failure of the judge to recuse herself; and (5) errors in sentencing. The Eleventh Circuit agreed that Mr. Little’s sentence was legally defective: 

Consistency demands that if a district court uses a local community standard then the pecuniary gain derived from the obscenity should be limited to the area defining those local community standards. Appellants’ sentences are being increased for sales in areas that could have community standards that deem the DVDs not to be obscene. Thus, when dealing with the DVDs in areas outside the Middle District of Florida, we must treat them as speech protected by the First Amendment until otherwise determined. We find that the one point increase in Appellants’ offense level for pecuniary gain over thirty thousand dollars was error. Therefore, we vacate the sentence and remand for re-sentencing.

You can read the decision here.

In an opinion issued Tuesday, the court of appeals held that “the limited rights Texas has given its state-licensed retailers to make deliveries do not transgress the dormant Commerce Clause.” Adding:  

We now turn briefly to the separate provisions regarding personal importing. As mentioned before, Texas has placed a limit on the quantity of alcoholic beverages that an individual can purchase out-of-state and then bring into Texas. TEX. ALCO. BEV. CODE §§ 107.05(a) & 107.07(a). Preliminarily, it should not be overlooked that Texas did not, indeed can not, limit the number of alcoholic beverages consumers may buy at an out-of-state retailer. Any purchase limits would have to come from the other State’s laws. The barrier Texas imposes is at its border.

We conclude that the incidental effect on foreign retail sales resulting from limits on quantities to be brought into Texas is at worst an acceptable balancing. The interests of Texas consumers in purchasing alcoholic beverages outside of Texas are recognized, but the State validly insists that the vast majority of the alcoholic beverages consumed in Texas be obtained through its own retailers. In effect, Texas has granted a limited exception to the three-tier system. We find no constitutional defect. See Brooks, 462 F.3d at 353-54 (similar provision in Virginia law upheld against dormant Commerce Clause challenge).

You can read the decision here.

A pair of decisions to start the week.

“The town of Clarksville’s legal case against Theatair X was dismissed Monday as a judge ruled the town’s ordinance is not valid and therefore cannot be enforced,” reports the NewsAndTribune.com (which, oddly enough, is a “.net” Web site)  here. The Clarksville Town Court held that the ordinance regulating sexually oriented businesses had a defect — and that defect was not severable. You can read the decision.

The Second Circuit Court of Appeals, in a 2-1 decision, threw out a district court’s preliminary injunction order, which had held the term “adult oriented store” unconstitutionally vague as applied to the plaintiff. You’ll find a link to the appellate decision at Howard Bashman’s always-informative blawg, How Appealing, here. I’m not sure that Peyton Manning himself could have saved this store’s injunction from jaws of the court of appeals. Maybe Brett Favre could have.

Maybe.

“First wine, then beer. Now even spirits get micro,” as reported in this article from The Mainichi Daily News.

According to the article, Bill Owens of the American Distilling Institute

estimates the number of small distilleries at just over 200, and growing by about 20 to 30 a year. They have sprouted up in more than three dozen states in recent years, with Oregon, California, Colorado, Michigan and New York the main players.

The gourmeting of hard liquor taps into the trend of eating and drinking artisanal foods and beverages from small, local producers. It’s also being driven by “mixologists,” a growing class of high-profile bartenders who craft trendy drinks with specialty alcohol.

And it hasn’t hurt that Americans have grown enamored with the hard-drinking characters on the trendsetting AMC television series “Mad Men,” Owens says. But demand alone doesn’t explain the growth. The repeal of Prohibition-era laws in many states helped spur the rush.

The article goes on to report that the State of Washington’s micro-distilling business took off “after a 2008 change in state laws that allowed booze makers to serve samples to customers and directly sell 2 liters of take-home spirits per customer per day. Before, all sales had to occur in state liquor stores.”

Takhomaflask.

“Massachusetts officials appeal from an injunction against a 2006 Massachusetts statute establishing differential methods by which wineries distribute wines in Massachusetts, Mass. Gen. Laws ch. 138, § 19F. The district court enjoined enforcement of § 19F on the ground that the law discriminates against interstate commerce in violation of the Commerce Clause of the United States Constitution,” begins this opinion delivered today by the First Circuit Court of Appeals. Drum roll please …

• “We hold that § 19F violates the Commerce Clause because the effect of its particular gallonage cap is to change the competitive balance between in-state and out-of-state wineries in a way that benefits Massachusetts’s wineries and significantly burdens out-of-state competitors.”
• “We further hold that the Twenty-first Amendment cannot save § 19F from invalidation under the Commerce Clause. Section 2 of the Twenty-first Amendment does not exempt or otherwise immunize facially neutral but discriminatory state alcohol laws like § 19F from scrutiny under the Commerce Clause. We affirm the grant of
  injunctive relief.”

I’ve written about the Wine Wars. This decision comes as no surprise.

All of a sudden, I’m thirsty.

It’s a crime for a “Public Official” to accept a bribe. OK, we knew that. See 18 U.S.C. § 201(b)(2).

A young man (Mr. Brownfield) who violated that federal statute was recently sentenced by Judge John L. Kane in Colorado’s district court. That young man owes his freedom to a fine jurist. And, of course, we owe our freedom to men and women who, like Mr. Brownfield, have sacrificed their peace of mind for us. (Thanks to WSJ’s Law Blog for the find.)

Here’s to better days.

Something about Georgiacarry.org’s mission seems backwards to me.

Fired up after SCOTUS’s decision in District of Columbia v. Heller, organizations like Georgiacarry.org are funding challenges to an assortment of gun laws. No problem with that, in a First Amendment sense. What’s got me scratching my head is how these organizations project the scope of the Second Amendment. They’ve argued a right to carry guns on trains and in automobiles. What’s the next target? Planes? Admittedly I approach this issue from the opposite direction. Because Georgia now allows guns in nightclubs, I ask which institutions, besides grade schools, remain bipartisan “gun-free zones”?

Today the Fulton County Daily Report (subscription only) reports, “A federal judge has ruled that Atlanta’s mass transit system had the authority to stop a Georgia man who was seen carrying a gun at a train station. U.S. District Judge Thomas Thrash ruled Monday that the Metropolitan Atlanta Rapid Transit Authority officers had probable cause to stop Christopher Raissi after he tried to use the system while carrying a firearm.” Read the summary judgment decision.

In its haste to champion a recently-established right to carry pistols on Atlanta’s subways, Georgiacarry.org overlooked some nuanced principles of federal law. It did, however, nick MARTA on a violation of the Privacy Act. (The investigating MARTA police officers asked the plaintiff for his social security number without providing adequate disclosures.) I recommend this opinion to any practitioner of the federal courts — very cool, if not counterintuitive, law.

You lookin’ at me?

“Bounty hunting is a decades old profession that is legal only in the United States and the Republic of the Philippines,” writes Heath Hamacher of GwinnettDailyPost.com in this story. As Hamacher also observes, bounty hunters “are not exempt from criminal charges, either, and stories of excessive force and false arrests are not uncommon. Without the legal protection afforded to law enforcement personnel against injuries, bounty hunters have to be extra careful.” This is so true.

Several years ago, I represented a bounty hunter who found himself facing criminal charges. To simplify the issue, let’s just say that my client, Mr. Perkins, apprehended a bail jumper without obtaining the local sheriff’s permission. Which lead to state criminal charges against Mr. Perkins. I failed to convince the solicitor that charging Mr. Perkins violated his due-process rights. More unfortunate, the trial judge agreed with the solicitor. Luckily for Mr. Perkins, the Georgia Supreme Court agreed with me. See Perkins v. State, 277 Ga. 323 (2003).

This article features AA Professional Bail Bonding and its owner, Charles Shaw. I have advised Mr. Shaw and his companies on different matters. No one, and I mean no one, knows more about the laws surrounding bail recovery than Mr. Shaw – who’s a super guy to boot.

Check out an earlier post on bail bonding.

Pro’s Sports Bar & Grill is not happy with the City of Country Club Hills.

When Pro’s applied to the City for a liquor license, the City claims, it was given a license that allows it to operate, but only with more restricted hours than is typical. (The City says it conditioned a license on Pro’s closing at 12:30 a.m., almost 3 hours earlier than (generic) liquor licensees of that class, i.e., the competition.) The license initially given to Pro’s, however, did not mention an hours restriction. After the City reissued the license with the restricted hours and began enforcing them—without a hearing or a vote by the city council—Pro’s brought a claim against the City under 42 U.S.C. § 1983, alleging a violation of its procedural due process rights.

Given the confusion that sometimes surrounds Robert’s Rules of Order in city council settings, I’ve little doubt that some of the City’s councilmembers thought that an hours-of-operation condition was imposed on Pro’s. As it turns out, Pro’s had the same liquor license that every other bar did. So it could operate after 12:30 a.m., like every other bar did. 

The City was not content with that. Rather than holding a hearing or vote on the ordinance supporting the license, Pro’s alleges, the City’s police began enforcing the time limitations, “resulting in several citations, arrests of management, and frequent visits by the police to Pro’s at or shortly before the new closing time. [The owner] testified that this resulted in lost business and revenues, identifying in particular the refund of fees to those who had booked private parties that were terminated early by police and lost bookings to other bars in the City that could remain open later.”

The Seventh Circuit Court of Appeals affirmed the preliminary injunction order stopping the City’s enforcement effort.

In my experience, a municipal defendant in this scenario will invariably argue that “due process” is satisfied so long as the business (i.e., property holder) can go to the State court and file a “petition for writ of certiorari” or, as in this case, a “petition for writ of mandamus.” The theory is that “unless and until” the State fails to provide a remedy for the city’s deprivation of property, no federal due-process problem exists. It’s a nice theory. In practice it doesn’t always work so well. As Judge Flaum writes:

But mandamus would be an incomplete remedy here. Pro’s is asking for more than an injunction compelling the City to issue an unrestricted liquor license. Cf. Schwartz, 330 F.3d at 941 (holding that plaintiffs, who sought injunctive relief under 42 U.S.C. § 1983, could get same relief in a state court mandamus action). The owners of Pro’s seek damages to compensate them for the period of time in which the restricted hours were enforced against them. They allege these damages were substantial, resulting in lost business in excess of $50,000. Because no state remedy exists to compensate plaintiffs for these damages, Pro’s is not foreclosed from bringing a due process claim.

The City of Country Club Hills is not happy with Pro’s Sports Bar & Grill.

Yes, it’s a bad time to have to pay through the nose.

View that protest sign and the other ”Funniest Protest Signs of 2009,” courtesy of The Huffington Post.

Thanks to one of my “he’s-so-multi-talented-he-makes-you-feel-inadequate” friends, Daniel Breckenridge, for the tip.