Archive | December 2016

Fourth Circuit invalidates police department’s social-networking policy as an impermissible prior restraint on speech

By Jonathan Biran

On December 15, in Liverman v. City of Petersburg, the U.S. Court of Appeals for the Fourth Circuit issued an interesting opinion dealing with public-employee speech in the digital age. In a unanimous opinion written by Judge Wilkinson (and joined by Judge Traxler and USDJ Hendricks), the Court sided resoundingly with two Petersburg (Virginia) police officers disciplined for having violated the social-networking policy of their Department by criticizing it in posted Facebook comments.

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Fourth Circuit Proves Infertile Ground for Heller Expansion

By Stuart Berman
Guest contributor

In its 2008 decision in District of Columbia v. Heller[1], the Supreme Court revolutionized Second Amendment jurisprudence by holding unconstitutional the District of Columbia’s ban on possession of handguns in the home, as well as its requirement that all firearms in the home be stored in a manner that rendered them inoperable for immediate self‑defense. When the Court subsequently held in McDonald v. City of Chicago[2] that the Second Amendment applied to state and local governments, some observers predicted a string of decisions invalidating firearms prohibitions. Because the five states in the Fourth Circuit are home to a large population of firearms owners, and several of those states have loosened gun restrictions and even permitted “open carry” of weapons, firearms advocates had reason to hope the Fourth Circuit might to take the lead in reading Heller expansively. As a recent decision demonstrates, however, those hopes have not been fulfilled.

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Fourth Circuit asks only if arbitrators did their job – not if they did it well

By Brad McCullough

The Fourth Circuit recently reminded us that “[t]he scope of judicial review of an arbitration award ‘is among the narrowest known at law.’” UBS Fin. Servs., Inc. v. Padussis, slip op. at 6, No. 15-2148 (4th Cir. Nov. 22, 2016) (citation omitted). When reviewing arbitrators’ decisions, reviewing courts ask only “whether the arbitrators did the job they were told to do – not whether they did it well, or correctly, or reasonably, but simply whether they did it.” Id. (internal quotation marks omitted) (citation omitted). A disgruntled UBS Financial Services likely wanted to borrow a phrase from Johnny Paycheck and tell the arbitrators to “take this job and shove it,” but its attempt to obtain relief from the arbitration decision fell on deaf judicial ears.[1]

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December 2016 Maryland certiorari grants include life without parole, rule against perpetuities

The Court of Appeals of Maryland today posted nine certiorari grants. The full list, with questions presented, appears after the jump.

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Md. High Court: No Post-Conviction DNA Test Requests After Alford Pleas

By John Grimm

The Court of Appeals recently held that defendants who plead guilty or enter an Alford plea are not eligible to request post-conviction DNA testing pursuant to Criminal Procedure § 8-201. Section 8-201 allows anyone convicted of a crime of violence to request DNA testing of evidence in their case, and § 8-201(d)(1) requires the court to order the requested testing if two conditions are satisfied:

(i) a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing; and

(ii) the requested DNA test employs a method of testing generally accepted within the relevant scientific community.

Md. Code Ann., Crim. Pro. § 8-201(d)(1). If the results of the DNA test are favorable to the petitioner, the court must open or reopen a post-conviction proceeding, or order a new trial. Id. § 8-201(i)(2).

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