Notable Cases from the Seventh Circuit for November

This month features some interesting Fourth Amendment cases, a few decisions on guns, as well as a successful challenge to a Wisconsin statute which prohibits the “harassment” of hunters.

• United States of America v. Monica Wright, No. 22-2922: This case presents a knotty Sixth Amendment challenge premised on an alleged “actual conflict of interest.” At Wright’s drug trial, her lawyer told the jury that his cross-examination of a government witness would result in exculpatory testimony that his client was never seen with “large amounts of meth.” When the government prepped the witness, however, he told them that Wright’s lawyer had encouraged him to change his story. Accordingly, the government alerted the court to this potential conflict, as Wright’s lawyer was now a potential witness. Although Wright consented to her lawyer’s continued representation, she later raised this Sixth Amendment claim on appeal. The Seventh Circuit rejects her challenge and affirms, holding there was no actual conflict under these circumstances and there was no possible adverse effect to Wright.
• Robert Bevis v. City of Naperville, No. 23-1353: While the central issue in this case isn’t directly relevant to Wisconsin practitioners, those folks especially interested in gun litigation post-Bruen  may want to take a peek at this lengthy opinion holding that Illinois’ assault weapons ban is likely to survive lower court litigation. This is because that legislation targets weapons not cognizable as “arms” for the purposes of the Second Amendment. Accordingly, the Seventh Circuit permits the law to go into effect while these consolidated legal challenges proceed in district court.
• United States of America v. Arthur Miles, No. 22-2805: This is the second near-miss for a straightforward Bruen challenge to the federal FIPOF law in the Seventh Circuit. While acknowledging that its prior decisions upholding that law are no longer valid post-Bruen, the court holds that Miles’ failure to raise the claim at the district court level dooms his appeal. As it was not raised previously, the court must apply a plain error analysis; as the law in this area is obviously unsettled, there is no “clear and uncontroverted” error. The decision cites to a number of other relevant federal cases discussing the legality of § 922(g)(1) post-Bruen, including its prior decision in Atkinson v. Garland, where the court remanded so that the district court could have the first crack at applying the Bruen framework to Atkinson’s constitutional challenge. As far as we know, that case is still “live.”
• United States of America v. Tyrone Maxwell, No. 22-2135: Relevant to our readers, this appeal challenges a warrantless entry to Maxwell’s home. Ostensibly believing that a gunshot victim may be inside Maxwell’s apartment, police broke down the door with a sledgehammer. No injured persons were observed, but “loose cannabis” was readily apparent. When looking into a “closet large enough to fit a person” police found a gun. A subsequent search warrant, based on these fortuitous discoveries, yielded even more goodies. Despite Maxwell’s multiple challenges, the Seventh Circuit affirms.
• Joseph Brown v. Jeffrey L. Kemp, No. 21-1042: Wisconsin’s constitution protects the right to hunt. In addition to that constitutional provision, the Wisconsin statutes protect hunters against “harassment” from those opposed to their activities. The law is remarkably broad and makes it unlawful to even approach or confront a hunter, take a picture of a hunter, or maintain “visual proximity” to a hunter if those acts are done with the intent to “impede or obstruct” the hunter’s constitutionally-protected activities. Joseph Brown, a Marquette professor, is one of the victorious plaintiffs in this case holding that Wisconsin’s statute is vague, overbroad, and that it discriminates against protected First Amendment freedoms.
• United States of America v. Javares L. Hudson, No. 23-1108: Hudson sought treatment for a gunshot wound. While a police officer stood nearby, the medical staff discovered that Hudson had “something plastic” inside his mouth. After 20 minutes of back-and-forth between Hudson and the treatment team, he spit out a device that can be used to illegally convert a semiautomatic weapon into a fully automatic mode. On appeal, the Seventh Circuit rejects his attempt to argue that the treatment team was acting as an arm of the government when they coaxed him to disclose what was concealed in his mouth.
• Roy Sargeant v. Aracelie Barfield, No. 21-2287: While not a criminal case, we thought this case was worth drawing some attention to, if only to remind those readers in indigent defense of who and what we are fighting for. For complicated reasons not amenable to capsule summary, this prison inmate finds that he is unable to pursue a legal action against a prison employee who deliberately endangered his safety by placing him in cells with violent prisoners and then failing to protect him from inevitable harm.