... and Justice for All: September 2016

September 23, 2016

Malicious Prosecution Claims in Kentucky; The Supreme Court Refines the Tort's Elements

Malicious prosecution claims are among the oldest of tort claims under Kentucky law; the law reports discuss them nearly all the way back to when Kentucky became a state. See Frowman v. Smith, 16 Ky. 7 (Ky. 1800): "A person discharged from a prosecution for felony, without a trial on the merits, cannot, in an action for malicious prosecution, require proof of probable cause, until he shows express malice."

The two centuries plus since had befogged the tort's elements, and the Kentucky Supreme Court has now refined them in Martin v. O'Daniel, advising as follows:

(1) the defendant initiated, continued, or procured a criminal or civil judicial proceeding, or an administrative disciplinary proceeding against the plaintiff;

(2) the defendant acted without probable cause;

(3) the defendant acted with malice, which, in the criminal context, means seeking to achieve a purpose other than bringing an offender to justice; and in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying proceeding was based;

(4) the proceeding, except in ex parte civil actions, terminated in favor of the person against whom it was brought; and,

(5) the plaintiff suffered damages as a result of the proceeding.

The Court added further that "procuring" a criminal or civil judicial proceeding means the same as "being the proximate and efficient cause of putting the law in motion against another person."

The Court's decision was 5-2; Justice Daniel Venters authored the majority opinion joined by Chief Justice John Minton, Justices Mary Noble, Elisabeth Hughes and Samuel Wright; Justice Bill Cunningham "forcefully" dissented and was joined by Justice Michelle Keller.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on September 23, 2016 in justice system, lawsuit procedures | Permalink | Comments (0)

Tags: Justice Venters, Kentucky Supreme Court, malicious prosecution

September 16, 2016

Career Offenders & Sentencing Guidelines; the Sixth Circuit Opens a Door for Relief

Federal inmates who had their sentences enhanced as career offenders under the United States Sentencing Guidelines prior to 2005 had a door opened for relief by the Sixth Circuit in Hill v. Masters, No 15-5188 (September 7, 2016).

The petitioner, Mark David Hill, was sentenced under the then-mandatory 2001 sentencing guidelines manual. Two prior felony convictions in Maryland caused Hill to qualify as a career offender under the guidelines, which resulted in an enhanced sentencing guidelines range of 292 – 365 months. He received a sentence of 300 months, which was affirmed on appeal by the Fourth Circuit in 2003. Of course, there have been substantial developments in the meantime.

In 2013, in Descamps v. United States, 133 SCt 2276 (2013), the Supreme Court clarified the approach for determining whether state law offenses qualified as "violent felonies" for purposes of sentencing enhancements. That same year the Fourth Circuit applied the Descamps rule to Maryland's second-degree assault statute – one of Hill's predicate felonies – and concluded it was not a "violent felony" for the sentencing enhancements under the Armed Career Criminal Act. The effect of that ruling, as the government acknowledged, is that were Hill to be sentenced today, he would not qualify as a career offender. The question, therefore, for the Sixth Circuit was "whether a misapplied sentence enhancement calculated under the mandatory Sentencing Guidelines Manual constitutes a fundamental error that may be redressed in a successive habeas corpus proceeding."

The Sixth Circuit decided that it could and relied on a Seventh Circuit decision, Brown v. Caraway, 719 F3d 583 (7th Cir 2013), and a dissent by Judge David Gregory in a Fourth Circuit case, United States v. Surratt, 797 F3d 240, now subject to en banc review. The Sixth Circuit saw two conditions raising fundamental fairness issues: (1) if the career-offender enhancement were considered under now-applicable Supreme Court precedent, Hill would not be treated as a career offender, and the sentencing court would have been required to impose a sentence within a lesser range; and, (2) Congress, through the sentencing commission, intended that prisoners in Hill's position be eligible for certain further reductions, for which his characterization as a career offender wrongly renders him ineligible.

The Sixth Circuit emphasized that the door it was opening for a successful petition under 28 U.S.C. § 2241 was narrow and applied only in the following circumstances:

(1) prisoners who are sentence under the mandatory guidelines regime pre-United States v. Booker, 543 US 220 (2005);

(2) who are foreclosed from filing a successive petition under § 2255; and,

(3) when a subsequent, retroactive change in statutory interpretation by the Supreme Court reveals that a previous conviction is not a predicate offense for a career-offender enhancement.

Robert L. Abell
www.RobertAbellLaw.com