Thursday, May 24, 2007

Attorneys' fee petition denied for jailer acquitted of federal perjury charge

In Hicks v. U.S. Attorneys Office, Chief Judge Jones of the W.D. Va. denied the petitioner's claim for attorneys' fees under the Hyde Amendment, concluding that notwithstanding the petitioner's acquittal on the perjury and obstruction of justice charges brought against him related to his testimony in a civil case, the charges were not "vexatious, frivolous, or brought in bad faith."

In the civil case of Stiltner v. Crouse, Judge Jones granted summary judgment for the defendants, including Hicks, in connection with the wrongful death case brought in connection with the death of a woman who had held in custody at the jail in Buchanan County.

State court ruling on grievability precludes procedural due process claim

In Etters v. Spencer, Chief Judge Jones of the W.D. Va. dismissed in part the section 1983 claim of a former employee of Tazewell County, who claims that he has been deprived of liberty and property without due process.

The Court ruled that the plaintiff was bound by the determination in state court that the plaintiff had no grievance because he was a department head, excluded by the county government from application of the policy, and therefore he had no basis for his procedural due process claim (having received all the process he was due, which was none).

Oops, no joy on this one

In Casteel v. Davidson, the Fourth Circuit in a per curiam decision by the panel including Judges Michael, Traxler, and Duncan, affirmed summarily the opinion of the District Court, without hearing oral argument.

Since we were the ones hired to bring the appeal, I was hoping for a different outcome.

Local litigators Roy Jessee and Bill Moffet were up in Richmond earlier this week, arguing before a panel of Judge Motz, Judge Shedd, and Senior Judge Hamilton. I must remember to inquire about that when next I see those gentlemen.

Tuesday, May 22, 2007

Latest qualified immunity opinion from Supreme Court

Yesterday, in Los Angeles County v. Rettele, the Supreme Court reversed the denial of qualified immunity by the Ninth Circuit to law enforcement officers sued for unreasonableness in the conduct of a search where they were looking for African-Americans in a house where everyone there was Caucasian.

The Court concluded there was no constitutional violation.

In a concurring opinion, Justice Stevens suggested three items of interest: (1) he bashed the Ninth Circuit for deciding the case in an unpublished opinion, and (2) he thought it was obvious that the rights at issue were not clearly established, not even on the authorities the Ninth Circuit cited, and (3) he continues to object to the idea that qualified immunity should be decided by always going first to the merits question.

On the latter point, I think that some opponents of qualified immunity would disagree, that the law never gets clearly established unless somebody rules on the merits every now and then.

Monday, May 21, 2007

A collection of Jerry Falwell posts

Saturday, January 07, 2006
The Falwell forecast on Alito

In this story from the Lynchburg paper, the Reverend Jerry Falwell predicts that the number of votes in the U.S. Senate in favor of the nomination of Judge Samuel Alito to the U.S. Supreme Court will be "in the high 50s or low 60s."

Monday, November 21, 2005
Jerry Falwell hoping for Protestant Knute Rockne

Explaining why he fired the football coach at Liberty University, Jerry Falwell here: "I don't have much time to get the football program in the Top 20."

Sunday, August 28, 2005
Falwell's sterling character denies him relief once again in the federal courts

Years ago, in the libel case brought by the Rev. Jerry Falwell against Larry Flynt over an ad parody in Hustler magazine, the jury found for the defendant, finding that "no reasonable man would believe that the parody was describing actual facts about Falwell." Falwell v. Flynt, 797 F.2d 1270, 1273 (4th Cir. 1986). The U.S. Supreme Court relied in part on this finding to overturn the verdict in favor of Falwell on his claim of intentional infliction of emotional distress. See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) ("We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with 'actual malice,' i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.")

Last week, in Lamparello v. Falwell, the Fourth Circuit in an opinion by Judge Motz, joined by Judges Michael and King, reversed the district court's entry of an injunction prohibiting the defendant from maintaining a "gripe website critical of Reverend Jerry Falwell." The Court concluded that there was no likelihood of confusion between Falwell's trade names and the defendant's "gripe website." The Court said: "After even a quick glance at the content of the website at, no one seeking Reverend Falwell’s guidance would be misled by the domain name — — into believing Reverend Falwell authorized the content of that website. No one would believe that Reverend Falwell sponsored a site criticizing himself, his positions, and his interpretations of the Bible."

So, I conclude from these two cases, under these cases based on the First Amendment, Rev. Falwell's protection from those who would say transparently bogus things about him is that no one would believe them, and he can obtain a judicial remedy against only those commentators with expression that has some verisimilitude (but is not quite true, as truth, presumably, might also defeat some kinds of claims).

Here are reports on the opinion from Anne Broache of CNET, Eric Goldman, Paul Alan Levy, the AP, Brian Peterson, SC Appellate blog, Susan Crawford, and Warwick Rothnie, among the many to comment on this case which involves the intersection of intellectual property law with the underlying clash of views between Mr. Lamporello and Rev. Falwell over homosexuality - there's something in it for all variety of different blogs.

Tuesday, July 19, 2005
Might as well, since the law and politics thing did not work out

In this story about a Eastern Kentucky politician who was sentenced today in federal court, where the defendant explained what he has been doing lately while he waited for his case to get finished: "With his law license suspended, Hays said, he has been attending Liberty University Baptist Theological Seminary, run by Jerry Falwell in Virginia."

Friday, July 15, 2005
Falwell says he's not recommending anyone for the Supreme Court

How Appealing links here to this article from the Lynchburg paper in which the Rev. Jerry Falwell says he's not making any recommendations to the White House about who should be named to the Supreme Court.

Tuesday, May 31, 2005
Two more summaries on the candidates for the Republican nomination for AG

This article by Christina Nuckols for the Norfolk paper about Steve Baril and Bob McDonnell is sort of a fair summary of the main points that have come across in the media during the campaign.

It does not mention some other things, like tort reform or where their money comes from, that might be of interest to some voters. This article by Tammie Smith in today's Richmond paper fills in some of that gap.

In this post, Barnie Day says that "Main Street Republicans" like Baril because, well, he is a Main Street lawyer, which I always thought was the main part of his appeal, although his campaign has not made it a point of emphasis in any way that I have noticed, preferring more populist themes. Strangely, Day points out that McDonnell is tied to Pat Robertson, without mentioning that Jerry Falwell was an early supporter of Baril.

Saturday, April 30, 2005
Rev. Falwell double-dog dares Sen. Warner to defy him on filibuster vote

Via How Appealing, I see that the Lynchburg paper is reporting here ("Falwell lays down marker for Warner," 4/30/05) that SW Virginia's own Rev. Jerry Falwell is challenging Sen. John Warner to come across on the vote to limit filibusters on the President's judicial nominees.

Senator Warner, I suspect, is not going to run again and will do whatever he pleases.

Wednesday, November 24, 2004
Look, bloggers made Jerry Falwell's Thanksgiving prayer list

It says here that among other things for which Jerry Falwell is offering a prayer of Thanksgiving: "I thank God for the Internet bloggers."

Monday, September 27, 2004
Falwell gives law clinic for church leaders on how to politic from pulpit

The AP reports here that Jerry Falwell and his lawyer son and others gave a how-to session for ministers on where to draw the line when mixing religion and politics.

Friday, September 03, 2004
More on new Liberty Law School

Somebody sent me a link to this humor piece published by the ABA e-journal. Apparently, the idea that Jerry Falwell plans to turn out Christian lawyers to infiltrate the legal profession is viewed to be almost as funny as his pronouncement years ago that the Liberty football team would beat Notre Dame.

I believe that there are people - not most, and perhaps not even many - who go to law school, every law school, with the intention of changing the world, and a few of these highly-motivated people manage to pull it off, and when they make their mark, their law schools send out a press release bragging of the connection. Some of these people are conservatives and even Christians, and I won't be surprised if some Liberty graduates create some noticeable ripples in the flowing river of the law - and that this happens even before Liberty beats Oklahoma or even Notre Dame in football.

Wednesday, September 01, 2004
Can Liberty Law School be accredited? has this article describing "questions" about whether the new law school at Liberty in Lynchburg can ever be accredited.

Since Regent is accredited, and Ave Maria is provisionally accredited, I'd have to say that this article is mainly full of anti-Christian nonsense, which is never hard to find, but probably the whole thing is part of the marketing plan cooked up by Rev. Falwell. I'm thinking maybe he called up Barry Lynn and said, hey, why don't you put out some outrageous quotes against my law school, and that will get us some publicity, and help with our admissions and fund-raising, and if you do, I'll treat you to a fried-chicken dinner after church the next time you come to see us down at the Thomas Road Baptist.

Wednesday, August 25, 2004
Catholics and Baptists unite at Liberty Law School, wherever that is

I enjoyed this Bainbridge post about Catholics (including the Dean) and Baptists (including Jerry Falwell) at the new Liberty law school, until I got to the part where he said it was in "southeast Virginia." No place called the "Hill City" and the "City of the Seven Hills" can be found over in the flatlands of Southeast Virginia.

I myself grew up going to the Abingdon Baptist Church (until we moved away) then was married (by a Jesuit priest) in Holy Trinity Catholic Church in Georgetown.

Thursday, August 19, 2004
Virginia Democrats on the new Jerry Falwell law school

From the Virginia Democrats' blog, this post laments the opening of the new law school at Liberty as likely to result in the further breakdown of the separation of Church and State.

Now, to me, there's something wrong in singling out for criticism the Southern Baptists and other Christians, when they engage in the naked pursuit (so to speak) of their agenda, as they are surely entitled to do, as much as anyone else. The Southern Baptists are not a threat to Our American Way of Life - anyone who has ever been to a Sunday School picnic knows that.

Wednesday, August 18, 2004
Opening of the Liberty University School of Law

Jurist has this post with links about the opening next week of the new law school at Jerry Falwell's Liberty University in Lynchburg, including this AP report and the Dean's blog.

Wednesday, August 11, 2004
More on the Falwell case

Here from Slashdot is a string of comments on the "Jerry Falwell" trademark beats case.

Tuesday, August 10, 2004
Website of gay rights activist held to infringe on the IP of Jerry Falwell

The AP reports here that Judge Hilton of the E.D. Va. has ruled that the domain name "" was too close to the registered trademark "Jerry Falwell" and was likely to confuse web surfers.

Tuesday, December 16, 2003
Best law school in Michigan

Via Politics & Law, this story ("Hail Mary Passes - How to build a great law school," 12/2/03) from the National Review Online about the Ave Maria Law School in Michigan makes me think that this kind of success is what Dr. Pat Robertson had in mind for Regent and what the Rev. Jerry Falwell hopes to accomplish with the law school coming to Lynchburg, but neither of them ever owned Domino's Pizza (or the Detroit Red Wings).

Monday, December 01, 2003
Jerry Falwell endorses Steve Baril for Virginia AG in 2005

According to this report ("Baril picks up endorsement from Falwell," 11/29) from the Richmond paper, the minister of the Thomas Road Baptist Church in Lynchburg, Jerry Falwell, has endorsed Steve Baril for Attorney General. Baril is a partner in the Williams Mullen firm and the son-in-law of the late former Governor John Dalton.

Saturday, June 21, 2003
Jerry Falwell's explanation of how he got back

Jerry Falwell, the Baptist minister from Lynchburg, explains here the legal strategies he employed in an effort to wrest from one of his opponents the use of ""

Thursday, June 19, 2003
SW VA's own Jerry Falwell gets rights to without litigation

This press release describes how Jerry Falwell, the Baptist minister from Lynchburg, got the rights to, without litigation.

JIRC recommends discipline against Judge Shull

The VLW blog had this post about the findings of the Judicial Inquiry and Review Commission on Judge Mickey Shull.

This is very disappointing, as I like Judge Shull. I don't know what happens next, or who might get the job if Judge Shull if these findings are upheld.

Another good book

I just read Gary Giddins' collection of favorites from his career as a movie/music/book critic, in Natural Selection: Gary Giddins on Comedy, Film, Music, and Books.

I didn't know half of what he was talking about, but the writing is great. The book sort of makes me think I've been wasting my DVD player. In fact, it ought to come with a few DVDs of the movies and music.

In particular, I liked the pieces toward about his professor from Grinnell and his editor at the Village Voice.

Been there

On the cover of the latest Travel + Leisure magazine is a view of The Reefs - where we spent our honeymoon, back in the day. The Reefs is also on the cover of T+L's 2007 hotel book.

At one time, some of its owners were engaged in a long-run bit of litigation, which is a bit hard to follow. See Koehler v. The Bank of Bermuda, Ltd. No. M18-302, 1994 WL 48825 (S.D.N.Y. Feb. 16, 1994) ("Koehler I"); Koehler v. The Bank of Bermuda, Ltd., 101 F.3d 863 (2d Cir. 1996) ("Koehler II"); Koehler v. Bank of Bermuda (New York) Ltd., 96 Civ. 7885, 1998 WL 557595 (S.D.N.Y. Sept. 2, 1998) ("Koehler III"); Koehler v. Dodwell, 152 F.3d 304 (4th Cir. 1998) ("Koehler IV"); Koehler v. The Bank of Bermuda (New York) Ltd., 209 F.3d 130 (2d Cir. 2000) ("Koehler V"); Koehler v. The Bank of Bermuda, Ltd., No. M18-302, 2002 WL 519740 (S.D.N.Y. Apr. 5, 2002) ("Koehler VI"); and Koehler v. The Bank of Bermuda, Ltd., No. M18-302, 2002 WL 1766444 (S.D.N.Y. July 31, 2002) ("Koehler VII").

The year before I got married, I lived at Mom and Dad's house, working for Judge Williams. People sometimes asked what did I do with all the money, having a salary for the first time and no expenses. And, the answer is I bought a wedding ring, made (only part of) a down payment on a house, paid for a week at The Reefs, and must have squandered the rest.

Will the Roanoke Times start liking him now?

Via Waldo, I saw this report that says at one time the Justice Department was looking at giving John Brownlee the boot for not prosecuting the pork rinds and cigarettes voter fraud cases that were later concluded in state court by Tim McAfee.

So, if Karl Rove was against him, you'd think the Roanoke paper would be for him.

UPDATE: Instead, the Roanoke paper wrote, huh?

Chief Judge Jones upholds federal sex offender registry statute

Last week, in U.S. v. Hinen, Chief Judge Jones of the W.D. Va. overruled the constitutional challenge raised by the defendant to the validity of his federal prosecution for failure to register as a sex offender.

Judge Jones offered this background of the statute at issue:

"Title I of the Adam Walsh Child Protection and Safety Act of 2006 ('Adam Walsh Act') encompasses the Sex Offender Registration and Notification Act (“SORNA”), Pub. L. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006). The Adam Walsh Act, including SORNA, was approved by the President on July 27, 2006. SORNA created a new federal offense of failing to register as a sex offender ('FFR'), with a maximum penalty of ten years imprisonment. See 18 U.S.C.A. § 2250.2 The elements of the crime as applicable to the present case are that the defendant (1) was required to register under SORNA; (2) traveled in interstate commerce; and (3) knowingly failing to register or update a registration as required by SORNA. Id. at § 2250(a). SORNA requires a person convicted of a sex offense to register, and keep the registration current, in each jurisdiction where the offender resides. 42 U.S.C.A. § 16913 (West Supp. 2007)."