Estate of Jocques Clemmons Secures Return of Phone; Deletion of Social Media Data Procured by MNPD

Constitutional Law, Criminal Law, Criminal Procedure, Fourth Amendment, ,

In an important win against investigative abuse, the Estate of Jocques Clemmons has secured all of the relief that it sought in a February 9, 2018 lawsuit concerning the Metro Nashville Police Department’s efforts to search Mr. Clemmons’ cell phone and social media accounts following his death.  The MNPD and MNPD Detective Danny Satterfield—who procured the warrants at issue and was similarly sued by Mr. Clemmons’ estate—also formally acknowledged that the search warrants that were sought against Mr. Clemmons could “be construed as overbroad.”

Following a settlement agreement reached on March 2nd, the MNPD agreed to relinquish Mr. Clemmons’ cell phone to his mother, which it had refused to turn over for more than a year following Mr. Clemmons’ death.  Yesterday, in keeping with the parties’ settlement agreement, the MNPD also filed a Declaration of Compliance certifying that the defendants had “administratively expunged and destroyed all data in their possession retrieved from Jocques Clemmons’ Instagram account and Facebook account.”  Accordingly, earlier this morning, the U.S. District Court for the Middle District of Tennessee issued a Final Order terminating the case.

The lawsuit arose out of a fatal officer-involved shooting on February 2017, during which Mr. Clemmons was shot in the back.  Days after Mr. Clemmons was killed, MNPD Detective Danny Satterfield filed three search warrant applications seeking “any/all data contained and/or stored within” Mr. Clemmons’ Facebook account, Instagram account, and cell phone.  Without any stated time or content limitation whatsoever, the warrants specifically sought Mr. Clemmons’ “pictures, videos, audio, text messages, incoming/outgoing Facebook Messanger [sic] conversations, voicemails, chat logs, contact information, call logs, emails, internet data, Wi-Fi data, IP address(es), search history, maps, locations, GPS data, drafts, deleted files/folders, etc.”

Officer Satterfield’s search warrant applications stated under oath that he had probable cause to believe that all of the data on Mr. Clemmons’ social media accounts and cell phone contained “certain evidence” of a crime committed by Mr. Clemmons, who was by then deceased and not subject to arrest.  A month later, however, the MNPD acknowledged that whether Mr. Clemmons’ social media accounts or cell phone contained any relevant evidence was actually “unknown.”   Disturbingly, such efforts to rifle through decedents’ social media accounts and cell phones in search of damaging information after controversial officer-involved shootings are not isolated.

“While we remain disappointed that these three wildly overbroad and comically unconstitutional search warrants were ever sought or approved in the first place, we appreciate that the MNPD has now taken the steps necessary to remedy those prior illegalities,” said attorney Daniel Horwitz, who represented Mr. Clemmons’ estate. “The Clemmons family is very happy to have back his phone—which contains several cherished family photos—and it is satisfied that the MNPD has now destroyed the data that it unlawfully obtained from Mr. Clemmons’ social media accounts following his death.”

Selected Case Documents:

–Clemmons Complaint & Exhibits (MNPD Social Media Warrants)

–*Settlement Agreement

–Defendants’ Declaration of Compliance

–Final Order

Selected Media Coverage:

-Patch: After A Year, Nashville Police Return Jocques Clemmons’ Phone

-The Tennessean: More than a year after Jocques Clemmons died, police returned his phone to family

-News Channel 5: Metro Police Return Clemmons’ Cell Phone After Lawsuit Is Filed

-The Tennessean: A year after Jocques Clemmons’ death, police still have his phone. His family wants it back.

-The Nashville Scene: It’s Been One Year Since the Jocques Clemmons Shooting

-The Nashville Scene: Why Does MNPD Need to Search Jocques Clemmons’ Social Media?

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Can the Tennessee Democratic Party Disqualify Angie Dalton for Fundraising for Republicans?

Constitutional Law, Election Law, ,

By Daniel A. Horwitz:

Election season is back!  As Nashville gears up for a major transit referendum and readies itself to choose critical new officeholders for…Register of Deeds and several other county offices that we inexplicably elect, the time for junk mail, jingles, and internal party shenanigans is officially upon us.

This blog has previously tackled the issue of whether trying to vote in another party’s primary is illegal (it’s not).  For this edition of “is that really allowed?”, we examine whether a political party can disqualify a candidate from running as a Democrat after fundraising for Republicans (or vice versa).  The answer: Yes—and candidates can also be disqualified by parties for any other reason the party sees fit.

Yesterday afternoon, a Democratic voter in Nashville officially contested the Democratic qualifications of Angelita (“Angie”) Dalton, who is running for Criminal Court Judge.  In August of last year, before being elevated to Criminal Court Judge by Republican Governor Bill Haslam, then-General Sessions Judge Dalton apparently contributed $250.00 to the Republican Party of Tennessee after attending a GOP fundraiser headlined by Vice President Mike Pence:

The donation appears to implicate some judicial ethics issues—Rule 4.1(A)(4) of Tennessee’s Code of Judicial Conduct prohibits sitting judges from “mak[ing] a contribution to a political organization”—but Judge Dalton’s primary concern is certain to be political.  Given most Tennessee Democrats’ outright revulsion to Vice President Pence, to the Trump White House, and to the Tennessee Democratic Party’s chief political opponent (the Republican Party of Tennessee) in general, Democrats, it seems, are not pleased.

It should first be noted that despite their pervasiveness, political parties are private organizations that enjoy a First Amendment right to set their own rules and determine the terms of their association.  The Supreme Court has held over and over again that governmental interference with a private group’s membership requirements “may impair the ability of the original members to express only those views that brought them together.” [1]  In Roberts v. U.S. Jaycees, for example, the U.S. Supreme Court held that “[f]reedom of association therefore plainly presupposes a freedom not to associate.”[2]   The Supreme Court has also made clear that this freedom is at its zenith when it comes to political parties’ “right to choose their own standard-bearers.”[3]

Enter Judge Dalton’s $250.00 contribution to the Tennessee Democratic Party’s chief political rival.  Can she still run as a Democrat despite that donation, or is such a contribution grounds for disqualification?  If the TNDP would like to disqualify her—which it has no obligation to do—the answer is that Judge Dalton can absolutely be disqualified from running in the upcoming Democratic Primary.  Some Democrats (like the author, for instance), have also called for more robust enforcement of the Democratic Party brand to prevent people like Sheriff David Clarke from ruining it.  Whether the TNDP will act on the pending petition to disqualify Judge Dalton, however, is a different question entirely.

Tennessee law expressly provides—as it must—that “[a] party may require by rule that candidates for its nominations be bona fide members of the party.”  See Tenn. Code Ann. § 2-13-104.  Tennessee law also provides that the state executive committee of a political party “with which a primary candidate filed [a qualifying] petition” is empowered to “determine[] that the candidate is not qualified” and have him or her removed from the party’s primary ballot.  See Tenn. Code Ann. § 2-5-204(a).

In determining whether a candidate qualifies as a “bona fide” Democrat, the TNDP’s bylaws helpfully include a specific definition.  Specifically, they provide:

“A bona fide Democrat is defined as an individual whose record of public service, actions, accomplishment, public writings and/or public statements affirmatively demonstrates that he or she is faithful to the interests, welfare and success of the Democratic Party of the United States and of the State of Tennessee. The State Party or a county party may make exceptions to this rule for requesting individuals in the spirit of an inclusive and a growing Party.”

Whether Judge Dalton’s contribution to the Tennessee Republican Party indicates that she is not “faithful to the interests, welfare and success of the Democratic Party” is an unreviewable question that only the TNDP is equipped to answer.  If past is prologue, the TNDP is also unlikely to act on the challenge, in which case Judge Dalton would remain qualified to run as a Democrat.  As to whether the TNDP is permitted to disqualify her from doing so, however, the law is equally clear: it can.

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[1] Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S. Ct. 3244, 3252, 82 L. Ed. 2d 462 (1984).

[2] Id. (emphasis added).

[3] Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 453, 128 S. Ct. 1184, 1192, 170 L. Ed. 2d 151 (2008) (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359, 117 S. Ct. 1364, 1370, 137 L. Ed. 2d 589 (1997)).

Estate of Jocques Clemmons Files Suit Over Social Media Search Warrants

Constitutional Law, Criminal Law, Criminal Procedure,

Nashville, TN—The Estate of Jocques Scott Clemmons, the Nashville man who was fatally shot in the back by Metro Nashville Police Officer Joshua Lippert on February 10, 2017, has filed a lawsuit regarding the MNPD’s successful efforts to search his social media accounts following his death.

Days after Mr. Clemmons was killed, MNPD Officer Danny Satterfield filed three separate search warrant applications seeking “any/all data contained and/or stored within” Mr. Clemmons’ Facebook account, Instagram account, and cellular telephone.  Without any stated time or content limitation whatsoever, the warrants specifically sought Mr. Clemmons’ “pictures, videos, audio, text messages, incoming/outgoing Facebook Messanger [sic] conversations, voicemails, chat logs, contact information, call logs, emails, internet data, Wi-Fi data, IP address(es), search history, maps, locations, GPS data, drafts, deleted files/folders, etc.”  Officer Satterfield also sought nearly identical information from Mr. Clemmons’ Instagram account and cell phone.

Mr. Clemmons was already deceased at the time of Officer Satterfield’s warrant applications.  Accordingly, he was not subject to arrest for any crime.  Even so, Officer Satterfield claimed that the warrants were necessary to investigate an “aggravated assault” that Mr. Clemmons had committed against Officer Lippert.  Notably, however, video released prior to Officer Satterfield’s warrant applications had already revealed that the altercation that Officer Satterfield claimed to be investigating had not occurred.

Officer Satterfield’s warrant applications stated under oath that he had probable cause to believe that all of the data on Mr. Clemmons’ social media accounts and cell phone contained evidence of Mr. Clemmons’ supposed aggravated assault against Officer Lippert.  In a subsequent statement, however, the MNPD acknowledged that whether Mr. Clemmons’ social media accounts or cell phone contained any relevant evidence was, in fact, “unknown.”  Based on the warrants’ lack of probable cause and several other constitutional deficiencies, Mr. Clemmons’ estate has filed suit seeking the return of all property seized as a result of Officer Satterfield’s defective search warrants.

“Mr. Clemmons’ Facebook and Instagram accounts had no conceivable bearing on the supposed crime that the MNPD claimed to be investigating, and Officer Satterfield’s comically unconstitutional warrant applications did not even bother to pretend that they did,” said Nashville attorney Daniel Horwitz, who filed the lawsuit on behalf of Mr. Clemmons’ estate.  “Further, at the time that Officer Satterfield applied for the search warrants at issue, there was literally nobody on earth who was less likely to be arrested than Mr. Clemmons, who had been deceased for nearly a week.  These search warrants could not have been any less valid if they were written in crayon.”

“We hope that the Mayor and the MNPD will do right by Mr. Clemmons’ family by returning his cell phone and relinquishing whatever private information they pulled from his social media accounts in their effort to assassinate his character,” Horwitz added.

The lawsuit was filed in the U.S. District Court for the Middle District of Tennessee.  The plaintiff’s pleadings are copied below.

–Plaintiff’s Complaint

–MNPD Search Warrants and Search Warrant Applications

###

Selected Media Coverage

The Tennessean: A year after Jocques Clemmons’ death, police still have his phone. His family wants it back.

The Nashville Scene: It’s Been One Year Since the Jocques Clemmons Shooting

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Tennessee Supreme Court Reforms Eligibility Rules for Foreign Attorneys

Business Law

By Daniel A. Horwitz:

In an order issued late Friday afternoon, the Tennessee Supreme Court officially reformed its rules to provide a clear path for international lawyers to obtain licensure in Tennessee.  The Court’s amendment to Tennessee Supreme Court Rule 7 § 7.01, which governs admission requirements for attorneys educated in foreign jurisdictions, comes on the heels of a recent win by attorney Maximiliano Gluzman, whose victory before the Tennessee Supreme Court last summer made national news.

Despite acknowledging that Gluzman—who had graduated Vanderbilt Law School’s LL.M program with an eye-popping 3.919 GPA while competing against American J.D. students in his second language—was “obviously very, very qualified,” the Tennessee Board of Law Examiners still attempted to prevent him from taking the Tennessee bar exam because he had received his first law degree from Argentina.  After getting the Board’s denial overturned last August, however, Gluzman is set to take the Tennessee bar exam next month.  Based on the Court’s reforms, other international lawyers will now be able to follow his lead.

“The Tennessee Supreme Court should be applauded for implementing this sensible rule change, which will significantly benefit consumers, provide Tennesseans greater access to new markets, and help solidify Tennessee’s increasingly large role in conducting international business,” said Daniel Horwitz, Gluzman’s attorney.  “We’re proud to have set this change in motion, and we’re thrilled that other qualified international lawyers will now be able to follow in Mr. Gluzman’s footsteps.”

Tennessee’s law schools—which can now offer LL.M. programs with confidence that they will offer practical value to graduates—welcomed the news as well.   “We’re pleased that the Court was willing to revisit the rule and provide greater clarity to prospective students and law schools,” University of Tennessee College of Law Associate Dean for Academic Affairs Alex B. Long told the Nashville Post.

The Court’s rule changes were formally prompted by a joint petition initiated by the University of Tennessee College of Law and Vanderbilt Law School, which the two law schools had filed in support of Gluzman during his litigation against the Board.  Previously, based on the Board’s former interpretation of Tennessee Supreme Court Rule 7 § 7.01, lawyers “from the vast majority of countries around the world” were forever prohibited from taking the Tennessee bar exam regardless of their ability or qualifications, since only a handful of jurisdictions follow the American model of separate undergraduate and legal degrees.  As a result of the Court’s amendments, however, foreign attorneys are now eligible to take the Tennessee bar exam if they satisfy either of the following two criteria:

First, foreign lawyers can take the bar exam if an approved credential evaluation service determines that their foreign education was “substantially equivalent” to an American legal education.  In evaluating an applicant’s foreign education, approved credential services will focus primarily on the scope of the applicant’s curriculum, whether an applicant received instruction in common law, and the number credit hours that applicants completed in their home countries.  Thereafter, if the evaluation service determines that an applicant’s education was substantially equivalent to an American legal education, the applicant will be permitted to take the Tennessee bar exam.  During Gluzman’s case, the Board formally conceded that notwithstanding its prior interpretation of the rule, this standard should not be construed as requiring separate undergraduate and legal degrees.

Second, foreign lawyers who have actively practiced law “for at least five of the eight years prior to applying to take the Tennessee bar” are eligible to take the Tennessee bar exam if they obtain either an “LL.M. Degree from a law school that is accredited by the ABA” or an LL.M. degree from a Tennessee law school approved by the Tennessee Supreme Court.  Thus, obtaining an LL.M. degree—which is essentially a master’s degree in American law—can “cure” a defect in an applicant’s foreign education, thereby allowing the applicant to sit for the Tennessee bar exam after graduating.

Critically, however, all applicants must also pass the Tennessee bar exam before they will be able to practice law in Tennessee.  This, of course, is no easy feat, especially given the number of foreign attorneys who would be taking the exam in their second language.  Even for many American-educated students, the bar exam often proves insurmountable.  For example, over the past few years, the failure rate among Nashville School of Law graduates has consistently hovered around 70%.

Taken together, the Court’s reforms should be universally applauded.  Ensuring that Tennessee’s businesses have access to high quality international lawyers is critical to several of the state’s leading industries, from agriculture to automobile manufacturing to intellectual property to any number of additional sectors in between.  As such, attracting foreign legal talent—which is currently concentrated in jurisdictions like New York, Texas, California—will quickly benefit both Tennessee’s businesses and consumers alike.

Selected news coverage about the case is available at the following links:

-Nashville Post: Supreme Court amends bar eligibility rules

-Nashville Post: Supreme Court rules Argentine can take Tennessee Bar

-Bloomberg: Argentine LL.M. With 3.9 GPA Wins Bid to Take Tenn. Bar Exam

-Nashville Post: Argentine lawyer challenging Tennessee Board of Law Examiners

-Nashville Post: National conservative groups join local bar fight

-Above the Law: State Bars Foreign Student From Bar Exam — Next Stop, State Supreme Court

-ABA Journal: Vanderbilt law prof who taught Argentine LLM student backs his bid to take the bar exam

-The Tennessean: How Tennessee discriminated against a talented Vanderbilt law grad

-Cato At Liberty Blog: Even Lawyers Have the Right to Earn an Honest Living

-Beacon Center Blog: Banned From the Bar Exam

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Court Denies Relief in Eighth Amendment Challenge to School Zone Law

Constitutional Law, Criminal Law, Criminal Procedure

Nashville, Tennessee—In an order issued earlier this morning, Calvin Bryant, a former college student and beloved Hillsboro High School football star who received a 17-year mandatory minimum sentence for a first-time, non-violent drug offense, was denied sentencing relief by Criminal Court Judge Steve Dozier.  The injustice of Mr. Bryant’s sentence garnered substantial local and national media attention, in part because his first-time, non-violent drug offense landed him a punishment that was more severe than the sentence that he would have received had he committed a violent crime like Rape or Second Degree murder.  Mr. Bryant—who has already served a decade in prison—had also received an outpouring of support from national advocacy groups and elected officials across the political spectrum.  Judge Dozier’s order denying him relief is accessible here.

“[I]n certain situations, such as with the Petitioner, a strict interpretation and enforcement of the Act can lead to sentences that courts and some members of the community would be hard-pressed to describe as fair.  This is especially true in Davidson County, where much of the county, and especially those areas with a higher concentration of minority populations, falls within the ambit of the Act,” the Court wrote in its Order.  However, “while the Court recognizes the Petitioner’s contention that his sentence is severe, the Court is of the opinion that the sentence is not so unjust as to give rise to an inference of gross disproportionality.  Thus, the Court must find the Petitioner’s sentence is constitutional,” the Order reads.

“While we respect the Court’s opinion, the fact that Tennessee law punishes first-time, non-violent drug sales between adults more harshly than violent crimes like rape and murder cannot be justified under any rational sentencing scheme,” said Daniel Horwitz, Bryant’s attorney.  “We continue to believe that Mr. Bryant’s mandatory minimum sentence is grossly disproportionate based on applicable precedent, and I have every expectation that this opinion will ultimately be overturned.”

The Court’s order also expressly encourages Mr. Bryant and his many supporters to seek clemency from the Governor, which he will do while his appeal is pending.  “In order to secure Mr. Bryant’s early release from his grossly excessive sentence, I intend to petition Governor Haslam to commute Mr. Bryant’s first-time, non-violent drug offense to the “lesser” offense of rape,” Horwitz stated.

Selected Media Coverage

-Patch:  Nashville Case Highlights Drug-Free School Zone Reform Efforts

-Reason: How a Drug-Free School Zone Sent a Tennessee College Student to Prison For 17 Years

-Nashville Scene:  Council Members Petition Judge Over Drug-Free School Zone Case

-The Tennessean:  He got 17 years for selling drugs near school. Now 12 Nashville officials are fighting on his behalf

-ScotBlog: Eighth Amendment Challenge Filed Against Tennessee’s “Drug Free School Zone” Law

-Families Against Mandatory Minimums: Calvin Bryant: 17 Years for a First Offense/FAMM Reacts to Denial in Calvin Bryant’s Drug-Free School Zone Case

-The Tennessean:  Judge agrees man’s 17-year sentence for dealing drugs is ‘harsh,’ but leaves it in place

Selected Case Filings

–Calvin Bryant Petition for Sentencing Relief

–Appendix

–Order

###

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Metro’s Public Records Scandal: The Mayor’s Illicit Scheme to Hide Records of Her Administration’s Efforts to Close Nashville General Hospital

Tennessee Public Records Act

By Daniel A. Horwitz:

This morning’s front-page Tennessean story features a blockbuster scoop from Joey Garrison outlining Metro’s scheme to circumvent public records law by running hospital consulting services through Metro Legal Director Jon Cooper.  Garrison’s report details a questionable arrangement between Nashville Mayor Megan Barry’s Administration and “volunteer” hospital consultant Kevin Crumbo, an accountant who specializes in corporate restructuring.  According to Garrison, since 2016, Crumbo has provided “hundreds, if not thousands” of hours of “unpaid” consulting services to Metro in furtherance of the Mayor’s recently abandoned efforts to shutter inpatient care at Nashville General, the city’s longstanding safety-net hospital.

Beyond basic questions like what Crumbo—whose accounting firm has a business relationship with Metro—expected to receive in return for his thousands of hours in “free” consulting services, the whiff of scandal arises from the fact that:

“Details of Crumbo’s findings and recommendations about Nashville General remain unclear because his interactions with the city have been kept secret.  Despite requests from The Tennessean, Metro won’t release any correspondence Crumbo had with the city.”

The supposed justification for denying the Tennessean’s public records requests is clearly set forth in the article.  According to the Barry Administration, Crumbo “reports directly to the Metro law director.”  As a result, “city officials cite attorney-client privilege” as a basis for denying the paper access to Crumbo’s reports.  For reasons that are readily apparent from Garrison’s article alone, however, Metro’s privilege claim is a sham, and the city is legally obligated to turn over the records that they have thus far insisted upon keeping secret.

To begin, it should go without saying that the government cannot circumvent applicable public records law by running non-legal matters through its legal department and then claiming attorney-client privilege.  The Tennessee Supreme Court has expressly held that such a scheme would represent a gross “misuse of [the attorney-client privilege] exception in order to circumvent the scope” of Tennessee’s transparency statutes, and that “any attorney who participates, or allows himself to be used in a manner that would facilitate such a violation, would be in direct violation of the Code of Professional Responsibility and subject to appropriate disciplinary measures.”[1]

Whether the Barry Administration’s privilege claim holds water is subject to a fact-dependent inquiry.  As this author explained in a recent law review article, “[a]s a general matter, all governmental records in Tennessee are considered public records under the Tennessee Public Records Act unless the records are specifically exempt from disclosure by law.”[2]  Significantly, both the attorney-client privilege and the related work-product doctrine provide such exemptions.[3]

Notably, though, the Tennessee Court of Appeals has cautioned that “[t]he attorney-client privilege is not absolute, nor does it cover all communications between a client and his or her attorney.”[4]  Instead, the attorney-client privilege is limited to bona fide relationships between attorneys and their clients regarding actual legal matters.  To be protected by the attorney-client privilege, Tennessee law specifically requires that:

“(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.”[5]

Based on Garrison’s report, Metro’s privilege claim does not—as Justice Kagan might put it—pass “the laugh test.”[6]  In this instance, there are several independent and glaringly obvious problems with the claim, which likely will not last through the week.

First, it is difficult to imagine how Metro Legal Director Jon Cooper could have been “acting as a lawyer” with respect to his receipt of Crumbo’s hospital consulting reports, or how the reports could even theoretically be construed as having been provided for the purpose of securing legal services.  We know this, because Garrison specifically quotes the Barry Administration as saying that Crumbo’s reports helped it “identify[ the] ‘financial and budgetary risks’ the hospital poses to the city.”

Rejecting a privilege claim in a similar case, Tennessee’s Court of Appeals held that “[u]nder our exercise of review, the correspondence that is the subject of this litigation does not contain any information of a confidential or secret nature.”[7]  “It cannot be said that as a general rule, [attorney-client privilege] applies to all documents written to an attorney or signed by an attorney,” the court noted.  “The Rule cannot have such a blanket application.”

Second, because the attorney-client privilege is (unsurprisingly) restricted to communications between attorneys and their clients, the privilege is waived when communications are disclosed to third parties.[8]  In this instance, we can also be quite certain that Crumbo’s consulting advice was not limited to Jon Cooper, because the Barry Administration has candidly acknowledged as much.  “Barry’s administration has credited Crumbo . . .  as key in helping Metro explore ways to improve the hospital’s financial stability,” Garrison’s story reads.  “[Crumbo’s] advice led Barry in 2016 to expand the hospital authority board from seven to 11 members,” it adds.  “[Representatives] from the hospital were called into a meeting in September by the mayor and Crumbo,” it explains further.

Plainly, then, Crumbo’s communications were not restricted to legal communications between him and the Metro Legal Director.  Instead, to the extent that the claim that Crumbo “report[ed] directly to the Metro law director” can even be believed, Crumbo’s reports appear to have been run through the legal department and then given directly to non-lawyer members of Megan Barry’s Administration—including to the Mayor herself.

It is likely, however, that Director Cooper actually intended to invoke the broader work-product doctrine as a basis for withholding the reports at issue, rather than the attorney-client privilege, which quite clearly does not apply.  “The [work-product] doctrine, which is not a privilege, permits an attorney ‘to assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.’”[9]

As a general matter, the work-product doctrine permits attorneys wide latitude to hire experts and assemble information in advance of potential litigation.  As the Court of Appeals has explained, “[t]he policy underlying the doctrine is that lawyers preparing for litigation should be permitted to assemble information, to separate the relevant facts from the irrelevant, and to use the relevant facts to plan and prepare their strategy without undue and needless interference.”[10]  “In order to qualify as work product,” however, “the party seeking protection must establish the following three elements: (1) that the material sought is tangible, (2) that the documents were prepared in anticipation of litigation or trial, and (3) that the documents were prepared by or for legal counsel.”[11]

Unfortunately for the Barry Administration, the work-product doctrine does not apply here, either.  For one thing, identifying “financial and budgetary risks” regarding a decidedly non-legal matter places Crumbo’s reports well outside the ambit of the doctrine, which is necessarily limited to documents “prepared in anticipation of litigation or trial.”  For another, the work-product doctrine is similarly subject to waiver, and acknowledging the existence of a consultant’s report and discussing its contents with third parties unmistakably waives its protection.  As the Court of Appeals explained in a similar case:

“By stating that this report existed and its findings supported the feasibility of the acquisition, the City has, in effect, selectively used the reports in a public relations offensive to convince the City Council and the general public that the acquisition was both economically feasible and beneficial. . . .  [A] party may not use a work product to publicly further its cause offensively as a sword, and then assert the benefit of privilege as a shield.   Accordingly, we hold that the City has waived the confidentiality of these documents.”[12]

Here, the Barry Administration has publicly disclosed that Crumbo’s reports “assisted Metro in identifying ‘financial and budgetary risks’ the hospital poses to the city.’”  In Garrison’s story, Metro Councilmember Tanaka Vercher—who chairs the Metro Council Budget and Finance Committee—also criticizes the contents of Crumbo’s publicly-withheld reports, stating that they “only looked at the ‘bottom-line numbers’ when a ‘holistic’ review is needed.”  Further, to support the Administration’s public relations efforts, Director Cooper has “characterized the criticism of Crumbo’s work as inaccurate.”  Despite disclosing their subject matter and defending their contents, however (which third parties appear to be aware of), Barry’s Administration nonetheless refuses to disclose Crumbo’s reports to the public—thereby using the privilege, as the Court of Appeals has characterized it, improperly as both a “sword” and “shield.”

In sum: the Barry Administration’s privilege claims are laughable.  The attorney-client privilege and work product doctrines cannot be used to shield non-legal government documents from disclosure under applicable public records law.  Further, even if they applied, their protections are waived when privileged communications are disclosed to third parties or to shape a media narrative.  Metro’s illicit scheme to skirt applicable public records law by having a hospital consultant report directly to the Metro Legal Director is, quite simply, a sham to avoid its obligations under the Tennessee Public Records Act.  Neither the press nor the public should stand for it.

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[1] Smith Cty. Educ. Ass’n v. Anderson, 676 S.W.2d 328, 335 (Tenn. 1984).

[2] Daniel A. Horwitz, Closing the Crime Victims Coverage Gap: Protecting Victims’ Private Records from Public Disclosure Following Tennessean v. Metro, 11 Tenn. J.L. & Pol’y 129, 131 (2016) (citing Memphis Pub. Co. v. City of Memphis, 871 S.W.2d 681, 684 (Tenn. 1994) (noting that section 10-7-505(d) of the Tennessee Code “expressly sets up a presumption of openness to records of governmental entities” and that “the burden is placed on the governmental agency to justify nondisclosure of the records”)).

[3] The Tennessean v. Tennessee Dep’t of Pers., No. M2005-02578-COA-R3CV, 2007 WL 1241337, at *9 (Tenn. Ct. App. Apr. 27, 2007) (holding that the attorney-client privilege applies “with equal force to a government official who seeks legal advice in the performance of his duties,” and holding further that the work-product doctrine similarly exempts records from disclosure under the Tennessee Public Records Act).

[4] Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 213 (Tenn. Ct. App. 2002).

[5] Armouth Int’l, Inc. v. Dollar Gen. Corp., No. 3:14-0567, 2015 WL 6696367, at *2 (M.D. Tenn. Nov. 2, 2015).

[6] Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2239 (2015).

[7] Coats v. Smyrna/Rutherford Cty. Airport Auth., No. M2000-00234-COA-R3CV, 2001 WL 1589117, at *7 (Tenn. Ct. App. Dec. 13, 2001)

[8] Bryan v. State, 848 S.W.2d 72, 80 (Tenn. Crim. App. 1992) (“the presence of a third party at the time of the communication or the client’s expectation that the substance of the communication is to be disclosed to others does not bring the privilege into play.”).  See also Culbertson v. Culbertson, 393 S.W.3d 678, 684 (Tenn. Ct. App. 2012).

[9] State ex rel. Flowers v. Tennessee Trucking Ass’n Self Ins. Grp. Tr., 209 S.W.3d 602, 616 (Tenn. Ct. App. 2006)

[10] Swift v. Campbell, 159 S.W.3d 565, 572 (Tenn. Ct. App. 2004)

[11] The Tennessean v. Tennessee Dep’t of Pers., No. M2005-02578-COA-R3CV, 2007 WL 1241337, at *10 (Tenn. Ct. App. Apr. 27, 2007)

[12] Arnold v. City of Chattanooga, 19 S.W.3d 779, 788 (Tenn. Ct. App. 1999).

A Summary of Tennessee’s Expungement Law

Expungement

By Daniel A. Horwitz:

*Note: This is a free informational resource about expungement law in Tennessee.  It is not intended to be construed as legal advice.  If you are seeking to hire an attorney to expunge your record for you, you can click here instead.*

The most common legal question I receive has nothing to do with constitutional law, appellate litigation, or other staples of my standard law practice.  Instead, on an almost daily basis, somebody wants to know whether they—or their son, daughter, husband, wife, mother, father, brother, or sister—can get their criminal record expunged.

Usually, the reason for the inquiry is that someone is having trouble getting a job, renting an apartment, or is experiencing some other collateral consequence of their public criminal record.  It’s a huge problem in Nashville, because criminal records are unusually accessible via this public search tool.  After I filed this case back in 2015, the number of inquiries that I received about expungement eligibility was so large that I created a free FAQ on expungement law in an attempt to provide some much-needed public information on the issue.  Unsurprisingly, it hasn’t been enough.

Because the criminal justice system has metastasized to the point where it is the default tool that society uses to address even the most harmless wrongdoing, between 2000 and 2012, more than 128,000 people in Nashville alone—representing roughly a quarter of the city—acquired 350,000 separate criminal records for charges that were ultimately dismissed outright.  In a sensible world, the magnitude of that figure would be staggering.  As far as the American criminal justice system is concerned, though, it’s fairly standard.  Across the United States, approximately 70 million adults have a criminal record of some kind, meaning that roughly a third of our eligible workforce is bogged down by a prior interaction with law enforcement.

Fortunately, Tennessee is better than many other states in enabling people to expunge their criminal records and move on with their lives, especially when it comes to dismissed and non-violent offenses.  Recent changes to Tennessee’s expungement statute have also expanded the number of people who are able to take advantage of the many benefits that expungement offers.  Accordingly, this post is intended to be a current—but non-exhaustive—summary of the most common scenarios in which a person is eligible to have their criminal record expunged in Tennessee.  It is not, however, intended to be a substitute for case-specific legal advice.  If you are looking to hire a professional to evaluate your expungement eligibility or expunge your record for you, then you should contact a lawyer who provides the service.  The attorney who represented you after your arrest may handle it for you for free.  Other attorneys may quote you a small fortune to handle your expungement.  For my part, I charge $100 to conduct expungement eligibility evaluations in Nashville and between $100 and $350 per charge to prepare and file your paperwork, depending on the type of charge at issue.  As always, if you are able to do so, hiring an attorney is a better idea than attempting to practice law yourself.

With that disclaimer in mind, here are the four most common scenarios in which a person will be able to expunge their record in Tennessee—a formal process that has the legal effect of “restor[ing] the person to the position he or she occupied prior to the arrest or charge.”[1]

1.  Dismissed and Retired Charges:  Far and away the most common charges that are eligible to be expunged under Tennessee law are those that were either dismissed or retired.  Any other charge that did not result in a conviction—such as a nolle prosequi or a not guilty verdict—is eligible to be expunged as well.  Tennessee law also provides that such charges are eligible to be expunged without payment of an expungement fee.  If you were assessed court costs, however, then those costs must be paid or waived by a judge before the charge can be expunged.

2.  Diversions:  Tennessee law has various forms of diversion.  As a general rule, though, if you successfully completed a pretrial diversion program or a judicial diversion program, then you will be eligible to have your record expunged.  There is, however, a $280.00 fee to expunge charges that were resolved via a diversion program.

3.  Non-Violent Convictions:  Many non-violent convictions are eligible to be expunged under Tennessee law.  As long as you have no more than two non-violent convictions on your record (excluding traffic offenses, like driving on a suspended license), your non-violent conviction is probably eligible to be expunged five years after your sentence expired.

If you were convicted of a felony, then you may be eligible for expungement if your charge appears on this list.  Alternatively, if you were convicted of a misdemeanor, then you may be eligible for expungement if your charge does not appear on this list.  Notably, despite a lot of advertising from DUI lawyers intimating that DUI charges will stay on your record forever if you don’t hire them to acquit you, DUI charges that were pleaded down to the reduced charge of either Reckless Driving or Reckless Endangerment are eligible to be expunged.  There is also a mandatory $280.00 fee to expunge convictions in Tennessee, which will have to be paid in addition to any outstanding court costs before your charge can be expunged.

Where convictions are concerned, however, there are both exceptions and grey areas.  For example, a person who has three total convictions for simple possession of marijuana can sometimes get all three convictions expunged due to a drafting error in Tennessee’s expungement statute.  Conversely, people who are otherwise eligible to expunge a conviction may be denied an expungement if the District Attorney opposes it.  If you are wondering whether your situation falls within a potential exception, then you should contact an attorney to evaluate your eligibility for you.

4.  “Partial” Expungements:  In many cases, a person is charged with several offenses in the same indictment, but has one or more charges dismissed at the end of the case.  Under these circumstances, a person can have any charge in their indictment for which they were not convicted expunged from electronic databases.  This is known as a “partial” expungement, and the electronic version of it is new.

For most people, expungement is a valuable and important tool, because a person’s criminal record is no longer accessible to prospective employers, and “persons whose records have been expunged may properly decline to reveal or acknowledge the existence of the charge.”[2]  For some people, however, expungement may be harmful, or may require additional precautions like certification of a person’s expungement order.  Thus, there is no substitute for contacting a licensed attorney to discuss your own individual situation with you.  If you are seeking to hire an attorney to expunge your record for you, you are welcome to click here instead.

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[1] Miller v. Tennessee Bd. of Nursing, 256 S.W.3d 225, 231 (Tenn. Ct. App. 2007).

[2] Pizzillo v. Pizzillo, 884 S.W.2d 749, 754 (Tenn. Ct. App. 1994).

Sixth Circuit Upholds Vote On Amendment 1

Constitutional Law, Election Law, , ,

In a decision issued earlier this morning, the U.S. Court of Appeals for the Sixth Circuit formally upheld Tennesseans’ 2014 vote to ratify Amendment 1 to the Tennessee Constitution.  The amendment provided that:

“Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”

Following the referendum election—which Tennesseans supported by a margin of 53%-47% in a contest involving nearly 1.4 million voters—opponents of the amendment challenged the results of the election in federal court, arguing that state officials should have disqualified the votes of anyone who declined to vote in the Governor’s race.  The challengers’ claim was premised upon a reading of an inartfully drafted provision of Tennessee’s Constitution, which states that:

“[I]f the people shall approve and ratify such amendment or amendments by a
majority of all the citizens of the State voting for Governor, voting in their favor,
such amendment or amendments shall become a part of this Constitution.”

Although initially accepted by the now-vacated decision of the District Court, the challengers’ reading of the above provision had several critical problems.  Among them, the novel interpretation that they demanded had never previously been applied in any referendum election in Tennessee’s history.  Most importantly, however, as the Yes On 1 Committee argued in an amicus brief filed in the Sixth Circuit, the challengers’ position would have unconstitutionally caused “the votes of tens of thousands of qualified voters—as many as eighty thousand, by some estimates—[to] be subject to wholesale invalidation for no other reason than that the voters who cast them did not support any candidate for governor.”  The same deficiency was noted in an editorial penned by Daniel Horwitz, Yes On 1’s eventual election counsel, in a 2014 op ed published in the Tennessean.

The Sixth Circuit’s opinion held that for purposes of the federal lawsuit, a separate state court decision that had previously determined that all votes in a referendum election must be counted regardless of whether or not a voter had voted in the Governor’s race was entitled to preclusive effect.  In a footnote, however, the Sixth Circuit also explained that it would have reached the same conclusion independently, noting that:

“[P]laintiffs’ preferred reading of the text of Article XI, Section 3, while not implausible on its face, would be patently unreasonable in effect. Not only would their proposed construction—requiring a voter to vote for governor as a prerequisite to casting a valid vote on Amendment 1—contravene longstanding practice and pre-election instructions published to the public, and effectively nullify the votes of thousands of citizens; it would also conflict with another provision of the Tennessee Constitution. Article IV, Section 1 prohibits the imposition of any additional qualification to vote, beyond age, U.S. citizenship, state residency, and registration. To adopt plaintiffs’ proposed interpretation would be to run afoul of our obligation, in construing state law, “to avoid constitutional difficulty” when fairly possible.”

“The issues involved in this lawsuit had absolutely nothing to do with abortion,” said Daniel Horwitz, election counsel for the Yes On 1 Campaign. “Instead, this was a direct challenge to pro-life voters’ right to vote itself, and fortunately, the right to vote won. Anybody who cares about the integrity of the democratic process should be both gratified and reassured by this outcome.”

The Sixth Circuit’s decision in the case is available here.

Selected Case Documents:

–Brief of the “Yes On 1” Campaign as Amicus Curiae

–Sixth Circuit Opinion Reversing District Court

–Sixth Circuit Order Denying En Banc Review

Selected Media Coverage:

-The Tennessean: Appeals court won’t reconsider Tennessee abortion measure decision

-Patch: Federal Court Denies Challenge To Tennessee Abortion Amendment

-Yes on 1: Yes on 1 Files State Court Motion on Behalf of Disenfranchised Voters

-The Tennessean: Amendment 1 plaintiffs on shaky legal ground

-The Tennessean: Appeals court upholds vote count on Tennessee abortion measure Amendment 1

-The Tennessean: Fate of Tennessee abortion measure Amendment 1 now up to appeals court

-Pro Life News: Tennessee: Pro-Life Win as Judge Says State Counted Votes Correctly on Amendment 1

-News Channel 5: Vote Counting For Tennessee Abortion Measure Argued In Federal Court

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Memphis Immigrant Wins Freedom Following U.S. Supreme Court Victory

Constitutional Law, Criminal Law, Criminal Procedure, Sixth Amendment, ,

By Daniel A. Horwitz:

Memphis, Tennessee—A Memphis man who secured a groundbreaking win before the U.S. Supreme Court this summer has officially won his freedom after a nearly nine-year legal battle to avoid being deported.  At the request of the U.S. Attorney for the Western District of Tennessee, the indictment against Mr. Lee was formally dismissed earlier this month, and his case is finally over.

In 2009, Mr. Jae Lee—a South Korean immigrant and successful Memphis restaurateur—was indicted for what the U.S. Court of Appeals for the Sixth Circuit described as “a relatively small-time drug offense.”  Thereafter, Mr. Lee pleaded guilty based on the advice of his defense attorney, who assured Mr. Lee that he would not be deported if he did so.

Unfortunately for Mr. Lee, his attorney’s advice was wrong, and spectacularly so.  Under federal immigration law, possession of ecstasy with intent to distribute is considered an “aggravated felony,” rendering Mr. Lee deportable immediately.  Consequently, when the Government initiated deportation proceedings against him, Mr. Lee sought to withdraw his guilty plea, asserting that his attorney had ineffectively assisted him by misadvising him about the consequences of pleading guilty.  Noting the strong evidence of his guilt, however, the District Court refused to allow Mr. Lee to withdraw his guilty plea, and the Sixth Circuit affirmed the District Court’s decision.

Ultimately, the United States Supreme Court agreed to hear Mr. Lee’s case in order to clarify the legal standard that governs ineffective assistance of counsel claims with respect to immigration-related plea bargaining.  In a 6-2 opinion, the Supreme Court held that “Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.”[1]  As a result, the Supreme Court permitted Mr. Lee to withdraw his guilty plea and proceed to trial instead.

The two dissenting Justices who ruled against Mr. Lee—Clarence Thomas and Samuel Alito—held that Mr. Lee could not have been prejudiced by his attorney’s incompetent advice because Mr. Lee intended “to pursue a defense at trial with no reasonable chance of success.”[2]  As this author explained in his 2016 Harvard Latino Law Review article on the matter, however, this analysis is overly simplistic in several respects, and it significantly mischaracterizes the relevant prejudice inquiry.

Further, the notion that a weak defense necessarily means that a defendant will be convicted at trial is also quite simply wrong.  Several reasons support this conclusion, including the fact that the Government retains discretion not to take a case to trial at all for any reason.  As the above-mentioned article explains: “longstanding precedent entrusts to the Executive Branch’s ‘absolute discretion’ all decisions ‘not to prosecute or enforce, whether through civil or criminal process.’”  See Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 8 (2016).  Accordingly, no matter how strong the evidence of a defendant’s guilt, all immigrants “are potentially eligible for relief from deportation [and from being criminally prosecuted at all] through the Executive Branch’s use of prosecutorial discretion.”

Mr. Lee’s case aptly proves this point.  After the Supreme Court permitted Mr. Lee to withdraw his guilty plea back in June, the U.S. Attorney’s Office filed a motion to dismiss the indictment against him.  No specific reason was offered to justify the Government’s decision, and because prosecutorial discretion is absolute, the Government is not obligated to provide one.  If anyone were looking for a reason to support the U.S. Attorney’s decision to drop the charges, however, one need look no further than the Sixth Circuit’s opinion in Mr. Lee’s own case, which explained—in a ruling against him—that:

“[W]e should not be read as endorsing Lee’s impending deportation. It is unclear to us why it is in our national interests—much less the interests of justice—to exile a productive member of our society to a country he hasn’t lived in since childhood for committing a relatively small-time drug offense.”[3]

Ultimately, the Government’s decision to drop the case represents a tremendous win for Mr. Lee and his new lawyer, Mr. Patrick McNally, who was part of Mr. Lee’s Supreme Court team and secured the final dismissal of his indictment.  “[S]omeone finally understood the harm that his [first] lawyer’s advice caused him,” Mr. McNally told The Tennessean after the Supreme Court’s ruling in June.

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[1] Lee v. United States, 137 S. Ct. 1958, 1961 (2017).

[2] Lee v. United States, 137 S. Ct. 1958, 1969 (2017) (Thomas, J., dissenting).

[3] Lee v. United States, 825 F.3d 311, 316–17 (6th Cir.), cert. granted, 137 S. Ct. 614 (2016), and rev’d and remanded, 137 S. Ct. 1958 (2017).

White County Judge Sam Benningfield Publicly Reprimanded for Instituting Inmate Sterilization Program, Retaliating Against Defendants

Constitutional Law, Criminal Law, ,

White County General Sessions Judge Sam Benningfield, the architect of a controversial sterilization-for-jailtime program that has been compared to eugenics and is the subject of a pending federal lawsuit, has been publicly reprimanded by the Tennessee Board of Judicial Conduct.  The Board’s Order, entered November 20, 2017 and accessible here, concludes that Judge Benningfield violated Code of Judicial Conduct Rule 1.1 (Compliance with the Law) and Rule 1.2 (Promoting Confidence in the Judiciary).

Benningfield was publicly reprimanded for two separate incidents, both of which are referenced in this federal lawsuit against him.

First, Benningfield was found to have retaliated against a defendant for registering a valid hearsay objection—threatening to withdraw the entire county’s house arrest program and inform other defendants in the county that “they can thank [her]” for what happened if she failed to do so.  The defendant’s attorney ultimately withdrew his hearsay objection following Judge Benningfield’s threat.

Second, and more prominently, Judge Benningfield was found to have instituted an illegal sterilization-for-jailtime program in White County, Tennessee.  “[Y]ou now realize that this [program] could unduly coerce inmates into undergoing a surgical procedure which would cause at least a temporary sterilization, and it was therefore improper,” the public reprimand states.

Last week, several inmates who sued over the program sought an immediate order terminating it on the basis that it was still pending and violates the 14th Amendment.  The public reprimand indicates that since the inmates’ most recent filing, Judge Benningfield has entered an order ending the program.

Notably, the Board of Judicial Conduct’s public reprimand stops short of recommending Judge Benningfield’s removal from office.  (Attorney Daniel Horwitz, who is representing the inmates who sued Judge Benningfield, has previously stated that “if Judge Benningfield will not resign his office, he should be removed.“)   If sterilizing inmates and retaliating against defendants who exercise their rights in his courtroom does not merit removal, however, one might reasonably wonder what a judge could do that would.  Selected documents from the lawsuit filed against Judge Benningfield are available below.

–Plaintiffs’ Amended Complaint for Injunctive and Declaratory Relief

–May 15, 2017 Standing Order

–July 26, 2017 Order Rescinding Previous Standing Order

–Defendants’ Motion to Dismiss

–Plaintiffs’ Response in Opposition to Motion to Dismiss

–Plaintiffs’ Motion to Certify State Law Claims

–Plaintiffs’ Motion for Partial Summary Judgment

Selected media coverage about the case

-The Washington Post: Tennessee judge reprimanded for offering reduced jail time in exchange for sterilization

-The Tennessean: 2nd lawsuit challenges Tennessee county’s inmate birth control practice

-WSMV Channel 4: Judge under scrutiny for offering reduced sentences for vasectomies, birth control implants

-BBC News: ‘We were guinea pigs’: Jailed inmates agreed to birth control

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