By Daniel A. Horwitz
The Beacon Center of Tennessee has sued the city of Nashville over its recent Airbnb ordinance. According to its press release:
“In a major development, the Beacon Center today announced the formation of a brand new litigation arm, the Beacon Center Legal Foundation, and filed its first lawsuit. The Beacon Center is suing the city of Nashville on behalf of P.J. and Rachel Anderson. They are challenging unconstitutional regulations the city has placed on their ability to rent their home on Airbnb, a website that connects homeowners like them with guests visiting Nashville.”
The Beacon Center’s complaint, which is accessible here, alleges myriad constitutional violations of both the U.S. and Tennessee Constitution, including:
- Violations of Article I, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (vagueness);
- Violations of Article I, Section 19 of the Tennessee Constitution and the First Amendment to the U.S. Constitution (commercial speech);
- Violations of Article I, Section 8 and Article XI, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (equal protection);
- Violations of Article I, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (substantive due process);
- Violation of Article I, Section 22 of the Tennessee Constitution (anti-monopoly); and
- Violation of Article I, Section 7 of the Tennessee Constitution and the Fourth Amendment to the U.S. Constitution (unreasonable administrative search).
The complaint also claims Continue reading Beacon Center Sues Nashville Over Airbnb Regulations
By Daniel A. Horwitz
A special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims, the Tennessee Supreme Court has held.
The Tennessee Supreme Court had previously held that in order to protect a defendant’s right to due process under the Tennessee Constitution, a special jury instruction is required in certain cases involving both kidnapping and a more serious criminal offense, such as robbery, burglary or rape. The basis for this special jury instruction – which is known as a “White” instruction in light of the eponymous Tennessee Supreme Court case State v. White – traces back to the Tennessee Supreme Court’s earlier decision in the 1991 case State v. Anthony. In Anthony, the Tennessee Supreme Court recognized that “the offense of kidnapping. . . at times ‘could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.’”
Stated differently, because “[i]t is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained,” the Anthony court expressed concern that a defendant could be convicted for two separate crimes –kidnapping as well as a more serious crime – when the defendant had only truly committed the more serious crime. In other words: “Where a defendant is charged with kidnapping and an accompanying offense involving some confinement . . . , there are appropriate due process concerns that the defendant could be convicted of two crimes—e.g. robbery and kidnapping—when he has only committed one crime—robbery.” More simply, as one Court of Criminal Appeals Judge once explained the issue: “I do not believe the legislature intended robbers to be prosecuted as kidnappers.” Continue reading Tennessee Supreme Court holds that a special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims.
By Daniel A. Horwitz:
On May 27, 2010, Terrence Feaster savagely beat his housemate, dragged her into a bedroom, tied her feet to an entertainment center, and threatened to kill her if she moved. Mr. Feaster was subsequently arrested and indicted for his crimes. Following a trial, a jury convicted him of voluntary manslaughter, aggravated assault, and false imprisonment. Over Mr. Feaster’s objection, the trial court declined to “merge” any of his convictions, meaning that it did not eliminate any of them for being duplicative.
Approximately two years after Mr. Feaster’s crimes, the Tennessee Supreme Court decided State v. Watkins. Watkins adopted a new test for determining when multiple convictions for offenses that arise under different statutes must be merged in order to avoid violating Tennessee’s Double Jeopardy clause. Importantly, Watkins also expressly abandoned the earlier (four-factor) merger test that the Tennessee Supreme Court had established in State v. Denton. For various reasons, the Denton rule was more favorable to criminal defendants than the Watkins rule, which is now in effect today. Under the current Watkins standard, courts must conduct the following three-factor inquiry to determine whether a defendant’s convictions must be merged:
First: “Tennessee courts must focus upon ascertaining legislative intent. If the General Assembly has expressed an intent to permit [or not to permit] multiple punishment, no further analysis will be necessary, and multiple convictions should be upheld against a double jeopardy challenge.”
Second: Continue reading Tennessee’s Double Jeopardy standard may be applied retroactively, holds Tennessee Supreme Court