man in handcuffs

United States v. Mayweather: Eleventh Circuit Clarifies the Meaning of Government Inducement in an Entrapment Defense and the Use of McDonnell Instructions

Jonathan Jenkins*

Photo Credit: https://perma.cc/66B7-DUMM 

            In United States v. Mayweather, the U.S. Court of Appeals for the Eleventh Circuit considered the convictions of four corrections officers for their roles in a drug smuggling operation.  The officers were convicted under the Hobbs Act for extortion and attempt to distribute cocaine and methamphetamines.  The officers argued on appeal that: (1) the trial court erred by refusing to allow them to use entrapment as a defense, and (2) the trial court improperly withheld instructions on the meaning of “official act” with regard to extortion under the Hobbs Act. Mayweather provides important guidance within the Eleventh Circuit as to what constitutes government inducement with regards to an entrapment defense.  While the burden of proof is light, there must be more than a scintilla of evidence regarding the defense. Additionally, the opinion compared and applied precedent on the McDonnell jury instruction issue in a manner that may prove useful for attorneys seeking to protect the rights of their clients.


scales of justice

Problem-Solving Courts in Alabama and Their Potential Role in the Alleviation of Poverty

William Breland

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Problem-solving courts offer state and municipal judiciaries an invaluable opportunity to leverage the power of the law and social policy in the name of aiding vulnerable populations.  Alabama, in particular, suffers from extreme prison overcrowding and high rates of poverty. Therefore, programs that seek to divert defendants away from prisons, treat substance abuse, address mental illness, and connect vulnerable populations with needed social services are laudable. However, criticisms of the implementation of these specialized courts have been warranted.  In order to be effective and just, these courts must be accessible, affordable, lenient, compassionate, and ultimately supported by judges and policymakers.  Though work is yet to be done, reforming traditional notions of criminal justice in Alabama must be embraced.

piece of paper saying abstention

Deal v. Tugalo Gas Co.: Eleventh Circuit Elects Not to Extend the Burford Abstention Doctrine to Judicial-Dissolution Claims

Robert Adams*

Photo Credit: https://perma.cc/6FAJ-66NS

In Deal v. Tugalo Gas Co., the U.S. Court of Appeals for the Eleventh Circuit addressed a laundry list of appeals stemming from a district court’s rejection of a plaintiff’s substantive claims as well as its decision to invoke the “Burford abstention” doctrine for the plaintiff’s equitable claims. In an unusual decision, by declining to adjudicate the plaintiff’s three equitable claims—“for judicial dissolution, an accounting, and appointment of an auditor”—the district court extended the “long-lost (or nearly lost)” Burford doctrine to cover such claims. However, on appeal, while affirming the district court’s disposal of substantive claims, the Eleventh Circuit reversed and remanded the three equitable claims because the district court should not have abstained from deciding the claims under the Burford doctrine.

street sign pointing in different directions

Marketing for Lawyers: It’s Now or Never

Cooper Shattuck

Photo Credit: https://perma.cc/QU6L-RPAC

People are constantly inundated by marketing efforts these days. Unless you are totally disconnected, you are exposed to it everywhere you look and with almost anything you listen to. Oh sure, marketing is on TV and in the newspapers—for those who still actually read them—but also on your screens while you shop, research, read the news, learn how to fix that leaky faucet, catch up on sports, or browse social media. If you connect with anything, marketers will find a way to connect with you, which is frustrating to many. However, an increasing number of lawyers have discovered the importance of marketing, and those who have not run the risk of being left behind.

photo of jury box

Granda v. United States: Criminal Defendant Fails to Overcome Procedural Bar

Will Brown*

Photo Credit: https://perma.cc/2JDH-HS38 

In Granda v. United States, the United States Court of Appeals for the Eleventh Circuit reviewed the denial of a plaintiff’s § 2255 petition after he claimed the jury may have relied on an invalid predicate resulting in the conviction of a “non-existent crime.” Because the plaintiff failed to overcome procedural hurdles and could not prevail on the merits, his assertions regarding the predicate were futile. Granda reaffirms the notion that, in a criminal conviction, regardless of the likelihood of success an argument may have, the defendant must raise an available challenge on direct appeal or be barred from raising that claim in a habeas proceeding.


Photo of 11th Cir. Court Building

Armstrong v. United States: Eleventh Circuit Joins Sister Circuits in Holding a 18 U.S.C. § 3582(C) Sentence Reduction Does Not Constitute a De Novo Resentencing

Stephanie Lynge*

Photo Credit: https://perma.cc/5GT7-JC7W

In Armstrong v. United States, the U.S. Court of Appeals for the Eleventh Circuit addressed whether a sentence reduction pursuant to 18 U.S.C. § 3582(c) constitutes a new, intervening judgment and thus acts as a de novo resentencing. If the court held that § 3582(c) did in fact constitute a de novo resentencing, then the appellant potentially would not have been barred from bringing his second or successive 28 U.S.C. § 2255 habeas petition. Although surrounding sister circuits had considered this same question, Armstrong was the Eleventh Circuit’s first opportunity. Therefore, the Armstrong decision provides a unique glimpse into the court’s analysis regarding a case of first impression within its circuit.

photo of prison barbed wire

Dickinson v. Cochran: Eleventh Circuit Puts Qualified Immunity on the Ropes in Constitutional Challenge to Jail Conditions

Dale Turley*

Photo Credit: https://perma.cc/FNR8-8W87 

In Dickinson v. Cochran, the U.S. Court of Appeals for the Eleventh Circuit reviewed an inmate’s § 1983 claims against jail officials after he was stabbed by another inmate.  Dickinson should ring alarm bells for the Alabama Department of Corrections and prison officials throughout the state, because the court brushed aside qualified immunity and laid out a roadmap that future inmates in similar situations can follow. Dickinson emphasizes that the State of Alabama and its prison officials cannot always rely on qualified immunity for protection.  How the State will and should handle future inmate assaults while awaiting completion of new prisons remains to be seen.


Photo of building with fountain in front

Law Review Members Compete in Moot Court and Mediation Competitions – Mitchell Brisbon Named Top Advocate

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Cumberland Law Review members closed out February and started March off with more success in their extracurriculars!

Copy Editor Taylor Johnson and Junior Editor Kaylee Rose both competed in the ABA Appellate Advocacy Competition at the end of February. And Junior Editor Mitchell Brisbon competed in the Duberstein National Bankruptcy Competition and at the CKP Cup where Mitchell was named top advocate!

Copy Editor Madison Cumby also competed in the ABA Representation in Mediation Regional Competition along with partner Hannah Trucks this past weekend.

Congratulations to our members on their continued success!!

Thai Meditation Association of Alabama, Inc., v. City of Mobile: Eleventh Circuit Finds District Court Improperly Dismissed Plaintiff’s Claims that City Violated State and Federal Religions Protection Laws

Hannah Cassady*

Photo Credit: https://perma.cc/YP9S-WUL5 

In Thai Meditation Ass’n of Alabama, Inc., v. City of Mobile, the U.S. Court of Appeals for the Eleventh Circuit addressed whether the district court erred in its dismissal of claims brought by the Thai Meditation Association of Alabama (“the Association”) against the city of Mobile, Alabama (“the City”) for the denial of a permit.  The Association applied to the City for permits to build a “Buddhist meditation and retreat center,” the prospect of which was not received well by the public.  Due to the Association’s religious affiliation and the subsequent public outrage, the permit denial led the Association to believe that the City violated the U.S. Constitution, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), the Alabama Constitution, and state common law.  The Eleventh Circuit declined to decide whether the City committed these violations but held that the district court improperly dismissed the Association’s federal constitutional, RLUIPA, and state constitutional claims. Going forward, the Eleventh Circuit’s opinion in this case will likely be considered by similarly situated plaintiffs in determining whether to bring claims under federal or state law—especially plaintiffs in Alabama who are members of a religious minority.


Alternative Dispute Resolution and Advocacy: Insights and Strategies for the Modern Advocate

The Cumberland Law Review is excited to announce our upcoming annual Symposium!

The event will be held virtually this year on Friday, February 26! This year’s theme is “Alternative Dispute Resolution and Advocacy: Insights and Strategies for the Modern Advocate.” We have an impressive panel of speakers who will be sharing must-know ADR insights.

Best of all, attorneys who attend will receive 3 FREE CLE credits! Register by emailing lawrev@samford.edu.

Photo of definition of defamation

Up in Arms: Son of Former Albanian Prime Minister Claims Defamation in Arms-Dealing Controversy in Berisha v. Lawson

Niki Ozburn*

Photo Credit: https://perma.cc/XQ5W-56NV

In Berisha v. Lawson, the U.S. Court of Appeals for the Eleventh Circuit addressed a defamation suit brought by Shkelzen Berisha (“Berisha”), the son of Albania’s former Prime Minister, against a United States author, Guy Lawson (“Lawson”).  In analyzing the defamation claim, the court considered whether Berisha was a limited public figure in this circumstance, and, if so, whether he had to prove that Lawson acted with actual malice.  The court also expanded on the employee-equivalent theory as it relates to an independent contractor’s ability to claim attorney-client privilege for communications when the contractor is not a traditional employee. The importance of the Eleventh Circuit’s ruling in Berisha v. Lawson is two-fold: (1) it upholds the importance of the First Amendment within the judicial system, even when a public figure is an involved party; and (2) it brings further definition to the Supreme Court’s holding that the attorney-client privilege can be expanded to include non-traditional employees. 


Photo of gavel on a law book

Collier v. Harland Clarke Corp.: Reinforcing a High Bar: Eleventh Circuit Rules in Favor of Employer on Disability, Age Discrimination, and Privacy Claims

Photo Credit:  https://perma.cc/BE4J-G358

Meredith Smith Taylor*

In Collier v. Harland Clarke Corp., the U.S. Court of Appeals for the Eleventh Circuit addressed a claim brought by a sixty-one-year-old terminated employee against his employer alleging violations of the Americans with Disabilities Act (the “ADA”), the Age Discrimination in Employment Act (the “ADEA”), and Alabama privacy law. Although the Eleventh Circuit expressed sympathy for Collier in his termination, the court held the district court did not err in granting summary judgment in favor of the employer because there were no genuine issues of material fact for any of Collier’s claims. Collier is significant in the employment discrimination context because it reaffirms the notion that in order to survive summary judgment, a plaintiff must provide enough evidence to establish a prima facie case of discrimination and an employer’s discriminatory intent beyond mere speculation.

Police officer behind yellow caution tape

Williams v. Aguirre: Eleventh Circuit Denies Immunity for Police Officers on a Malicious Prosecution Complaint

Photo Credit: https://perma.cc/6VG9-53PB

Meredith Buckner*

In Williams v. Aguirre, the U.S. Court of Appeals for the Eleventh Circuit addressed whether qualified and state immunity applied to a malicious prosecution claim brought by an arrestee. An individual alleged he was maliciously prosecuted for attempted murder of a police officer after the police officer shot him. Aguirre answers questions on the availability of both qualified and state-agent immunity to police officers. In deciding this case, the Eleventh Circuit considered constitutional and state law to determine that the officers were not entitled to either form of immunity and that the district court did not err in denying the officers’ motion for summary judgment.

TAX spelled out on Scrabble pieces on top of money

McKenny v. United States: Eleventh Circuit Clarifies the Deductibility of Litigation Fees and the Exclusion of an Unreimbursed Loss in a Federal Tax Return

Photo Credit: https://perma.cc/4P9R-KPZN

Kate Belyayeva*

In McKenny v. United States, the U.S. Court of Appeals for the Eleventh Circuit addressed a question of first impression: whether the taxpayers’ settlement with their accounting firm, whose negligence allegedly led to a $2 million overpayment in federal taxes to the government, constitutes taxable income. The court also discussed whether the corresponding litigation fees and the difference between the settlements with the law firm and the IRS are deductible. Taxpayers are likely to see McKenny as the baseline for determining the business or personal nature of litigation expenses as well as the deductibility of a settlement with the IRS.

Photo of bankruptcy filing

Relief for Debtors: Eleventh Circuit Holds That Change of Circumstances Not Required to Modify a Chapter 13 Plan in In re Guillen

Amanda Nelson*

Photo Credit: https://perma.cc/E64Y-FGTT

In In re Guillen, the United States Court of Appeals for the Eleventh Circuit addressed whether a party is required to demonstrate that they experienced some change in circumstances in order to modify a confirmed Chapter 13 bankruptcy plan under 11 U.S.C. § 1329. The ruling answered a question of first impression for the Eleventh Circuit that has divided some of its sister circuits. The First, Fifth, and Seventh Circuit Courts of Appeals do not require a threshold showing of any change in circumstances in order to modify a confirmed bankruptcy plan, while the Fourth Circuit does require such a showing. The Eleventh Circuit ultimately determined that a change in circumstances is not required to modify a plan, and thereby concurred with the First, Fifth, and Seventh Circuits.

Photo of police vehicles with lights on

Stryker v. City of Homewood: Eleventh Circuit Finds Plaintiff Deserves Jury Trial in Police Brutality Case

Chloe Champion*

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In Stryker v. City of Homewood, the United States Court of Appeals for the Eleventh Circuit addressed a conflict involving alleged excessive use of force by the police. In recent months, use of force by the police has been a hotly debated topic, creating fervor that has grown, in some cases, to a call to abolish the police. In Stryker, the Eleventh Circuit reversed and remanded the district court’s grant of summary judgment in favor of the police. While this decision does not create any altering legal precedent, it is worth considering in light of the tumultuous debate which is currently surrounding the police.

Two football helmets colliding

Mickell v. Bell: Former NFL Player Obtains a Win Against the NFL Retirement Board After Being Denied Disability

Allison Lowery*

Photo Credit: https://perma.cc/J9RJ-TQST

In Mickell v. Bell, the United States Court of Appeals for the Eleventh Circuit revived former NFL player Darren Mickell’s claim for denial of disability benefits.  Reversing the District Court’s ruling, the Eleventh Circuit held that the NFL Retirement Board abused its discretion in denying disability benefits by failing to consider two key components: medical records and reports from his treating physicians and the cumulative effect of his impairments. Mickell v. Bell serves as a guidepost for disability benefit plan administrators in the Eleventh Circuit.

Champions Retreat Golf Founders, LLC v. Commissioner: Golf Course Qualifies for Charitable Deduction Due to its Wildlife Conservation

Willie Wofford*

Photo Credit: https://perma.cc/8J27-CNA7

In Champions Retreat Golf Founders, LLC v. Commissioner, the United States Court of Appeals for the Eleventh Circuit addressed whether a taxpayer qualified for a charitable deduction for a donation of a conservation easement that encompassed a private golf course as well as undeveloped land. The Eleventh Circuit vacated the Tax Court’s decision to uphold the Commissioner of Internal Revenue’s denial of the charitable deduction, “[b]ecause the [Internal Revenue] Code does not disqualify an easement just because it includes a golf course . . . . Owners of golf courses and other similarly developed commercial properties likely see Champions as a new tax-break opportunity. The Eleventh Circuit’s finding that Champions’ easement property satisfied the meaning of a relatively natural habitat, despite the use of chemicals, artificial drainage, and introduction of nonnative species, provides a baseline of the extent and type of property modifications that can exist within the limits of the Code.

Executive Editor Lauren Brasher Published in The Alabama Municipal Journal

Lauren Brasher*

While clerking this Summer at Wallace, Jordan, Ratliff, & Brandt, LLC, Executive Editor Lauren Brasher, in conjunction with Attorneys Phillip Corley and April Danielson, wrote an article overviewing Alabama’s drainage laws and their impact on municipalities. In general, courts have been hesitant to impose liability on municipalities for drainage they have not expressly accepted to maintain or constructed the drainage system themselves. The article discusses the Public Purpose Doctrine, when drainage is considered within the the control of the municipality, and what does and does not constitute acceptance for maintenance.

Click the link below to read the full article in the Fall 2020 Issue of The Alabama Municipal Journal! The article begins on page thirty-one.

False Alarm label in all caps

Ga. Elec. Life Safety & Sys. Ass’n v. City of Sandy Springs: Can Cities Constitutionally Impose Fines on Alarm Companies for False Alarms?

Cullen Armstrong*

Photo Credit:  https://perma.cc/UMZ9-MJED

In Georgia Electronic Life Safety & System Ass’n v. City of Sandy Springs, the United States Court of Appeals for the Eleventh Circuit addressed the constitutionality of a city ordinance that imposes a fine on alarm companies for false alarms. Affirming the lower court’s ruling, the Eleventh Circuit deemed the city ordinance constitutional because “[i]mposing a fine on . . . alarm companies is rationally related to the City’s strong interests in reducing the number of false alarms that heavily burden its police and fire departments and waste public resources.” In deeming the Ordinance constitutional, the Eleventh Circuit demonstrated that it will not interfere in a municipality’s regulation of economic behavior when that municipality can establish that the regulation is rationally related to the governmental interest.

Cumberland Law Review Hosts Visit to Equal Justice Initiative’s Legacy Museum and National Memorial for Peace and Justice

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The Equal Justice Initiative has invited Cumberland School of Law students to visit its Legacy Museum and National Memorial for Peace and Justice for free as part of its Law School Racial Justice Program. This event is open to all 2L and 3Ls, with 1Ls having attended during their orientation. The Cumberland Law Review is hosting a visit this Saturday, October 10th from nine a.m. to one p.m. Students have the opportunity to visit for free on October 17th and 24th as well. Students who attend will receive free copies of Just Mercy and The Sun Does Shine.

To obtain free admission, students must wear their red volunteer Samford shirts and bring their student IDs. Students must also fill out this form prior to arriving to confirm their attendance and masks must be worn. Please tag any photos taken with #changemakers2b #lawstudentwellness and #ABAmentalhealth

photo of gender bathroom symbols

Adams ex rel. Kasper v. School Board of St. Johns County: Restricting Transgender High School Students’ Restroom Access Violates the Fourteenth Amendment and Title IX

Mitchell Brisbon*

Photo Credit: https://perma.cc/N7C9-SSZX

In Adams ex rel. Kasper v. School Board of St. Johns County, the United States Court of Appeals for the Eleventh Circuit considered a challenge to a Florida high school’s policy prohibiting transgender students from using the bathroom of the gender with which they identify. The plaintiff, a transgender male, challenged the policy under the Fourteenth Amendment’s Equal Protection clause and Title IX of the Education Amendments Act of 1972. The court affirmed the district court’s judgment on both grounds, with one judge dissenting, holding that the School Board’s policy violated both the Fourteenth Amendment’s Equal Protection Clause and Title IX’s prohibition of sex discrimination in education. Although not specifically decided, the case tees up a potential challenge to sex-separated bathrooms.

picture showing people submitting voter ballots

Greater Birmingham Ministries v. Secretary of State for the State of Alabama: Eleventh Circuit Finds Alabama Voter Identification Law Constitutional

Kaylee Rose*

Photo Credit: https://perma.cc/VSU6-3J93

In Greater Birmingham Ministries v. Secretary of State for the State of Alabama, the United States Court of Appeals for the Eleventh Circuit addressed the constitutionality of an Alabama law that governs “‘one of the most fundamental rights of our citizens: the right to vote.’” The Eleventh Circuit affirmed the lower court’s ruling that Alabama’s 2011 Photo Voter Identification Law is constitutional and not racially discriminatory. Circuit Judge Elizabeth L. Branch, writing for the majority, found that “[t]he burden of providing a photo ID pursuant to Ala. Code § 17-9-30 in order to vote is a minimal burden on Alabama’s voters—especially when Alabama accepts so many different forms of photo ID and makes acquiring one simple and free for voters who lack a valid ID but wish to obtain one.”

Picture of Insurance Claim

MAMA JO’S INC. V. SPARTA INSURANCE CO.: “DIRECT PHYSICAL LOSS” REQUIREMENT IN INSURANCE POLICIES RESTRICTS CLEANING AND BUSINESS INCOME LOSS CLAIMS

Terra Silva *

Photo Credit: https://perma.cc/RCM9-65GR

In Mama Jo’s Inc. v. Sparta Insurance Co., the United States Court of Appeals for the Eleventh Circuit held that an insurer properly denied coverage for a restaurant’s cleaning and business interruption claims because neither claim satisfied the policy’s “direct physical loss” requirement. The Mama Jo’s decision may be used by insurance companies arguing that denial of claims was proper based on the lack of any “direct physical loss,” as required by many policies. Though pandemic-related case law is still developing, Mama Jo’s may have major impacts on the outcome of such litigation.

Microphone in front of crowd

Political Speech On Campus: A Practical Look At University Policies and Regulations

Laura Beltz and Mary Zoeller

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In just forty-five words, the First Amendment to the United States Constitution is a “blueprint for personal freedom and the hallmark of an open society.” Critically, the First Amendment protects citizens from governmental interference with these foundational rights and prevents state actors—such as public colleges and universities—from hindering the exercise of these rights. In contrast, the First Amendment does not generally apply to students at private colleges.

READ FULL ARTICLE HERE

Words such as equality, women, race, rights, etc.

Monaghan v. Wordplay U.S., Inc.; Eleventh Circuit Clarifies the Standard for Title VII Retaliation Claims

Taylor A. Johnson

In Susan Monaghan v. Worldpay US, Inc., the Eleventh Circuit reversed a district court’s grant of summary judgment in a Title VII retaliation complaint. This decision clarifies the requirements needed for successful Title VII retaliation claims.

READ FULL ARTICLE HERE

 

Volume 52 Executive Board Announced

The Cumberland Law Review is pleased to announce our Volume 52 Executive Board who will serve the Law Review for the 2021-2022 school year!

Editor-in-Chief: Meredith Taylor

Executive Editor: Robert Adams

Managing Editor: Kaylee Rose

Acquisitions Editor: Stephanie Lynge

Student Materials Editor: Cullen Armstrong

Online Managing Editor: Chloe Champion

Online Research Editor: Niki Ozburn

Copy Editors: Kate Belyayeva and Meredith Buckner

Research Editors: Mitchell Brisbon and Hannah Cassady

Writing and Bluebook Editors: Amanda Nelson and Terra Silva

Junior Editor Dale Turley Reaches Seigenthaler-Sutherland National Moot Court Competition Quarterfinals

At the close of March, Junior Editor Dale Turley competed along with partner Forrest Hyde in the Seigenthaler-Sutherland National Moot Court Competition. This team reached the quarterfinals and was awarded Second Best Brief. Emily Hopper, a previous Acquisitions Editor for the Cumberland Law Review, coached this team.

Congratulations!!