Weekly Case Digests November 8, 2021 - November 12, 2021.

Byline: Rick Benedict

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Whole Woman's Health Alliance, et al., v. Todd Rokita, et al.,

Case No.: 21-2480; 21-2573

Officials: FLAUM, EASTERBROOK, and WOOD, Circuit Judges.

Focus: Preliminary Injunction

The district court entered an injunction that prohibits officials from enforcing these provisions of Indiana's law:

Ind. Code 16-34-2-1(a)(1) to the extent this statute limits the provision of first-trimester medication abortion care to physicians; requires a physical examination to be performed on a woman prior to receiving an abortion; and prohibits the use of telemedicine by requiring the prescriber to be physically present at the abortion facility in order to dispense the abortion-inducing drug and the patient to ingest the drug in the physical presence of prescriber;

Ind. Code 16-34-2-1(a)(2) providing that second trimester abortions be performed only in hospitals or ambulatory surgical centers;

Ind. Code 16-34-2-1.1(a)(1), (a)(4), (b)(1) to the extent these provisions prohibit providers from using telemedicine or telehealth to obtain informed consent from patients or to conduct preabortion counseling sessions;

Ind. Code 25-1-9.5-8(a)(4) prohibiting the use of telemedicine in abortion care;

410 Ind. Admin. Code 26-17-2(d)(1)(A), (4), (e)(5) requiring clinics providing aspiration abortions to maintain 120-square-foot procedure rooms, scrub facilities, and 44-inch corridors;

410 Ind. Admin. Code 26.5-17-2(e)(1) requiring medication abortion clinics to maintain housekeeping rooms with storage sinks;

Ind. Code 16-34-2-1.1(a)(1)(E) and (a)(1)(G) requiring women seeking abortion services to be informed that "objective scientific information shows that a fetus can feel pain at or before twenty (20) weeks of postfertilization age" and that "human physical life begins when a human ovum is fertilized by a human sperm"; and

Ind. Code 16-34-2-1.1(b)(2) to the extent it requires dissemination of a Perinatal Hospice Brochure containing the following: "Studies show that mothers who choose to carry their baby [sic] to term recover to baseline mental health more quickly than those who aborted due to fetal anomaly."

2021 U.S. Dist. LEXIS 149959 at *20708 (S.D. Ind. Aug. 10, 2021). The officials (collectively Indiana) request a stay of some aspects of this injunction: the "physician-only law as applied to medication abortions, Ind. Code 16-34-2-1(a)(1); [the] second-trimester hospital/ambulatory surgical center requirement, id. 16-34-2-1(a)(2); [the] in-person counseling requirement, id. 16-34-2-1.1(a)(1), (a)(4), (b)(1); [the] in-person physical examination requirement, id. 16-34-2-1(a)(1); and [the] telemedicine ban, id. 25-1-9.5-8(a)(4)."

All of the contested provisions have been in force for years, so a stay would preserve the status quo pending appellate resolution. And Indiana has made the "strong showing" on the merits necessary to receive a stay. See Nken v. Holder, 556 U.S. 418, 426, 434 (2009).

We leave the merits for resolution after full briefing and argument. All we hold today is that existing precedents provide strong grounds for concluding that Indiana is likely to prevail on the contested issues. To the extent that the injunction bars Indiana from enforcing Ind. Code 16-34-2-1(a)(1), (2), 16-34-2-1.1(a)(1), (4), (b)(1), and 25-1-9.5-8(a)(4), it is stayed pending further order of this court.

Stayed

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7th Circuit Court of Appeals

Case Name: Joseph S. Ferguson v. Ryan McDonough

Case No.: 20-2741

Officials: MANION, ST. EVE, and KIRSCH, Circuit Judges.

Focus: Appellate Jurisdiction Qualified Immunity

Our jurisdiction over this interlocutory appeal turns on a police dashcam video that captured police officer Ryan McDonough's arrest of Joseph Ferguson, including the moment he tased Ferguson. Ferguson sued Officer McDonough under 42 U.S.C. 1983, alleging that Officer McDonough violated his Fourth Amendment rights by using excessive force to effectuate his arrest. Following discovery, the parties cross-moved for summary judgment, both asserting that the dashcam video supported granting summary judgment in their favor. The district court disagreed that the video resolved the parties' factual disputes and denied both motions.

This appeal concerns only the denial of Officer McDonough's motion, which asserted that he was entitled to summary judgment because qualified immunity shielded him from civil liability for any damages Ferguson sustained from the arrest. The district court concluded that when the facts were viewed in a light most favorable to Ferguson, one reasonable interpretation of the dashcam video was that Ferguson was not actively resisting arrest when Officer McDonough tased him. It further concluded that a reasonable officer would have known by the time of Ferguson's tasing that an officer's escalation of force in response to an individual not actively resisting violated the Fourth Amendment's proscription against excessive force. Because one view of the evidence supported that Ferguson was not actively resisting when Officer McDonough tased him, a jury could reasonably find that Officer McDonough's use of the taser was unreasonably excessive under the circumstances. Accordingly, the district court held that Officer McDonough was not entitled to summary judgment on his qualified immunity defense.

On appeal Officer McDonough argues that the dashcam video contradicts the district court's finding that the video is open to interpretation because the video clearly shows that Ferguson was actively resisting arrest moments before Officer McDonough tased him, and that Ferguson continued to argue with Officer McDonough while raising his hands. Under these circumstances, Officer McDonough contends that his deployment of the taser was objectively reasonable, and hence, he is entitled to qualified immunity.

We have jurisdiction to review the merits of Officer McDonough's appeal only if the dashcam video utterly discredits the district court's finding that there was a factual dispute over whether Ferguson was actively resisting when Officer McDonough tased him. It does not, so we must dismiss his appeal for lack of appellate jurisdiction.

Dismissed

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7th Circuit Court of Appeals

Case Name: United States of America v. Elston Stevenson

Case No.: 20-2261

Officials: KANNE, BRENNAN, and SCUDDER, Circuit Judges.

Focus: Sentencing Guidelines Enhancement

Elston Stevenson possessed a firearm as a felon, and as an armed career criminal he received an enhanced sentence. In the district court and on appeal, he challenges whether, given that state officials sent him a restoration of rights letter, two of his prior Illinois state convictions could support that enhancement. The district court concluded that Stevenson did not establish by a preponderance of the evidence that the letter in question pertained to those predicate convictions. That court did not clearly err, so we affirm.

Affirmed

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7th Circuit Court of Appeals

Case Name: United States of America v. Edward Soybel

Case No.: 19-1936

Officials: SYKES, Chief Judge, and BAUER and ST. EVE, Circuit Judges.

Focus: 4th Amendment Violation Warrantless Search & Seizure

Industrial-supply company W.W. Grainger was the victim of a series of cyberattacks against its computer systems in 2016. Grainger isolated the source of the intrusions to a single internet protocol ("IP") address, which came from a high-rise apartment building where disgruntled former employee Edward Soybel lived.

Grainger reported the attacks to the FBI. To confirm the source, the government sought and received a court order under the Pen Register Act, 18 U.S.C. 3121 et seq., authorizing the installation of pen registers and "trap and trace" devices to monitor internet traffic in and out of the building generally and Soybel's unit specifically. Among the data collected, the pen registers recorded the IP addresses of the websites visited by internet users within Soybel's apartment. The IP pen registers were instrumental in confirming that Soybel unlawfully accessed Grainger's system. The district court denied Soybel's motion to suppress the pen-register evidence and its fruits, and a jury convicted him of 12 counts of violating the Computer Fraud and Abuse Act.

This appeal presents a constitutional issue of first impression for our circuit: whether the use of a pen register to identify IP addresses visited by a criminal suspect is a Fourth Amendment "search" that requires a warrant. We hold that it is not. IP pen registers are analogous in all material respects to the telephone pen registers that the Supreme Court upheld against a Fourth Amendment chal lenge in Smith v. Maryland, 442 U.S. 735 (1979). The connection between Soybel's IP address and external IP addresses was routed through a third partyhere, an internet-service provider. Soybel has no expectation of privacy in the captured routing information, any more than the numbers he might dial from a landline telephone.

Soybel insists that this case is governed not by Smith but by Carpenter v. United States, 138 S. Ct. 2206 (2018). We disagree. Carpenter concerned historical cell-site location information ("CSLI"). The warrantless acquisition of that type of data implicates unique privacy interests that are absent here. Historical CSLI provides a detailed record of a person's past movements, which is made possible so long as he carries a cell phone. In contrast, the IP pen register had no ability to track Soybel's past movements. And Carpenter is also distinguishable based on the extent to which a person voluntarily conveys IP-address information to third parties. Accordingly, though our reasoning differs from the district judge's, we hold that the suppression motion was properly denied.

Soybel also challenges the sufficiency of the evidence on one of the 12 counts. We reject this argument and affirm the judgment in all respects.

Affirmed

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