Constitutional Law

THANA v. BD. OF LICENSE COMMRS. FOR CHARLES CNTY., MD., NO. 15-1660

Decided: June 28, 2016

The Fourth Circuit reversed the district court’s Rooker-Feldman ruling and remanded for further proceedings.

In 2009, Plaintiffs, owner of Thai Palace, a restaurant and lounge, sought an alcoholic beverage license from the Board of License Commissioners of Charles County, Maryland (the Board).  Thai Palace previously had an alcoholic beverage license but it was revoked in 2007 for hosting “entertainment that featured nudity.”  Thai Palace and the Board entered into a consent order stating Thai Palace could “‘be operated as a family restaurant’” for certain hours of the day and have no entertainment other than “‘dinner music from either a radio and/or t.v. . . . without prior written approval of the Board.’”  In November 2009, Thai Palace requested to be allowed to provide live entertainment and for the Board to rescind the earlier consent order.  The Board refused to rescind the earlier consent order but modified it, allowing Thai Palace to extend its hours and to provide “‘instrumental and acoustical music; Karaoke; [and] DJ music and dancing.’”  The 2012 consent order stated Thai Palace “‘shall not allow an outside promoter to maintain control of any entertainment and shall not offer any “teenager only” events or “go-go” entertainment.’”  Thai Palace did not follow the terms of the consent order and contracted with “‘go-go’ bands to perform at Thai Palace.”  The Board, after receiving information about the concerts, required Thai Palace to show cause as to why the 2012 consent order should not be revoked.  The Board revoked the 2009 consent order, the 2012 consent order and the alcoholic beverage license after it held an evidentiary hearing.  Thai Palace filed a petition for review of the Board’s revocations and the circuit court affirmed the revocation of the 2012 consent order.  Thai Palace appealed and the court of special appeals affirmed.  The Maryland Court of Appeals denied Thai Palace’s writ of certiorari.  Thai Palace commenced this federal action under 42 U.S.C. § 1983.  Thai Palace alleged the Board had violated its First Amendment rights by not allowing it to host “‘go-go’ entertainment” and sought $500,000 in compensatory damages.  The district court granted the Board’s motion to dismiss for lack of subject matter jurisdiction per the Rooker-Feldman doctrine.

On appeal, Thai Palace asserts the Rooker-Feldman doctrine does not apply to its § 1983 claim but rather the principles of claim preclusion apply.  The Board contends the Rooker-Feldman doctrine does apply because the federal court could not resolve Thai Palace’s claim without a “‘corresponding determination that the State court’s judgment, and the Board’s decision affirmed by that State court’s judgment, were decided in error.’”  The Court relied on Exxon v. Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005), which stated “‘[t]he Rooker-Feldman doctrine . . . is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.’”  The Court stated preclusion principles apply to “concurrent, independent suits that results when the two suits address the same subject matter, claims, and legal principles,” whereas the Rooker-Feldman doctrine applies when a party is “appealing a state court judgment to the Supreme Court.”  The Rooker-Feldman doctrine does not apply when a party “‘presents an independent claim.’”

The Court determined the Rooker-Feldman doctrine did not apply because the action was a concurrent, independent action; therefore, the district court had jurisdiction on the claim.  The Court supported its conclusion for five reasons: (1) “the doctrine does not apply here because the district court here was not called upon to exercise appellate jurisdiction over a final judgment from ‘the highest court of a State in which a decision could be had’”; (2) “Thai Palace’s action was, and is, challenging the action of a state administrative agency, rather than alleging injury caused by a state court judgment”; (3) “because Thai Palace challenges state administrative actions, the Rooker-Feldman doctrine does not apply as a categorical matter”; (4) “the differences between the two proceedings demonstrate that this federal action must be seen as an independent, concurrent action that does not undermine the Supreme Court’s jurisdiction over any state court judgment”; and (5) “while pursuing this independent, concurrent action, Thai Palace in fact never sought to bypass the Supreme Court’s appellate jurisdiction under 28 U.S.C. § 1257(a) over any relevant state court judgment.”  Therefore, the Court held Thai Palace had asserted an independent, concurrent action and the Rooker-Feldman doctrine did not apply.

Accordingly, the Court reversed the district court’s Rooker-Feldman ruling and remanded for further proceedings.

Full Opinion

Alicia E. Morris

RALEIGH WAKE CITIZENS ASS’N v. WAKE CNTY. BD. OF ELECTION, NOs. 16-1270 & 16-1271

Decided: July 1, 2016

The Fourth Circuit reversed the district court’s ruling and remanded in part and affirmed in part.

In 2013, the General Assembly passed Session Law 2013-110 making numerous changes to the School Board’s method of selection, changing the make-up from nine single-member districts to seven single-member districts.  This caused the maximum population deviation to be over 7% whereas it was 1% before the change.  It also created two super districts with the maximum population deviation being just shy of 10%.  In August 2013, Plaintiffs challenged the constitutionality of Session Law 2013-110 stating that under the redistricting laws some districts have been over-populated and others have been under-populated thus making some votes count more than others.  The Plaintiffs also claimed that one district was the product of racial gerrymandering.  The district court dismissed Plaintiffs’ suit for failure to state a claim in March 2014.  In April 2015, the General Assembly enacted Session Law 2015-4 making the Wake County Board of County Commissioners electoral system the same as the School Board’s.  On appeal of the district court’s order dismissing its claim, the Fourth Circuit concluded it survived the motion to dismiss for failure to state a claim.  The district consolidated the two lawsuits on remand.  In December 2015, the district court held a bench trial and ruled for the Defendant and discredited all of Plaintiffs’ witnesses.  Plaintiffs appealed.

On appeal, the Plaintiffs assert the district court applied the wrong legal standard for adjudicating their one person, one vote claim.  The Fourth Circuit concluded Plaintiffs’ must show by the preponderance of the evidence that improper considerations predominate in explaining the deviations in a one person, one vote case with population deviations below 10%.  The Fourth Circuit concluded the district court erred in discounting all of Plaintiffs’ witnesses and erred in what the Plaintiffs’ needed to show.  Further, the Court stated that only one resolution of Plaintiffs’ claims was permitted: “Plaintiffs have proven that it is more probable than not that the population deviations at issue here reflect the predominance of a illegitimate reapportionment factor . . . to create a ‘significant . . . partisan advantage.’”  The Court further stated that “rather than seeking proportional representation of the two main political parties, the evidence shows that the challenged plans under-populated Republican-leaning districts and over-populated Democratic-leaning districts in order to gerrymander Republican victories.”  This deviation was shown to be pretextual.  The reasons asserted for the redistricting were “to increase alignment between citizen’s voting districts and their assigned schools,” “reduc[e] campaign costs,” and “increase[e] voter turnout.  The Court stated these reasons had nothing to do with re-drawing the districts.

The Plaintiffs also asserted a racial gerrymandering claim regarding District 4 of the Board of County Commissioners contending “race predominated in determining the boundaries, shape, and composition of that district without narrow tailoring to serve a compelling state interest.”  The Court concluded the district court did not err in its decision on this claim.  The district court considered the relevant comments on race being a consideration in the redistricting process.  The Court concluded the district court’s conclusion that the Plaintiffs fell short of proving that traditional districting criteria were subordinated to race in the drawing of District 4 was plausible.

Accordingly, the Court reversed the district court’s ruling and remanded in part and affirmed in part.

Judge Motz dissented stating the district court did not err in rejecting Plaintiffs’ equal protection challenge to the redistricting plans.  Judge Motz stated Plaintiffs failed to meet their burden that it was more probable than not that a deviation of less than 10% reflected the predominance of illegitimate reapportionment factors and illegitimate partisanship because they failed to “offer any evidence truly probative of legislative intent.”

Full Opinion

Alicia E. Morris

NAAMJP v. LYNCH, NO. 15-1982

Decided: June 17, 2016

The Fourth Circuit affirmed the district court in granting the motion to dismiss.

The National Association for the Advancement of Multijurisdictional Practice (NAAMJP) challenged the conditions placed on the admission to the Bar of the United States District Court for the District of Maryland in Local Rule 701. Rule 701 governs attorney admission to practice in the district court. The Rule contains requirements based on the state of licensure and the location of the attorney’s office. The Rule allows for admission of attorneys licensed in the State of Maryland. Admission to non-Maryland attorneys extends only to attorneys in states whose district courts observe reciprocity with the District Court. Regardless of reciprocity, however, the District will not admit a non-Maryland attorney if that attorney maintains a law office in Maryland. NAAMJP described Rule 701 as being discriminatory, monopolistic, balkanizing, and unconstitutional. NAAMJP sued the Attorney General and each of the judges on the District Court, challenging the validity of Rule 701. The Defendants moved to dismiss, and NAAMJP moved for summary judgment. The district court granted the motion to dismiss and denied NAAMJP’s motion for summary judgment. NAAMJP appealed.

In order to survive a motion to dismiss, a complaint must state facts that, when accepted as true state a claim of relief that is plausible on its face. NAAMJP challenges the validity of Rule 701 under the First Amendment, the Equal Protection Clause, the Rules Enabling Act, and the Supremacy Clause. In regards to the First Amendment, Rule 701 is simply a regulation of a profession. The Rule does not compel attorneys to speak or regulate speech based on its content. Rule 701 qualifies as a generally applicable licensing provision and therefore does not violate the First Amendment. In regard to the Equal Protection Clause, Rule 701 does not infringe a fundamental right or disadvantage a suspect class. Applying rational basis review, Rule 701 passes constitutional muster. The rationales of promoting bar memberships for attorneys located in Maryland are plausible, and NAAMJP does not bear its burden in negating the legitimate government purpose. NAAMJP did not cite in cases to support their Equal Protection argument. In regards to the Rules Enabling Act, Rule 701 prescribes a rule for the District Court for the conduct of its business on which attorneys may practice before it. The Rule does not violate any Acts of Congress or any federal rules of practice and procedure adopted by the Supreme Court, thus Rule 701 does not violate the Rules Enabling Act. In regards to the Supremacy Clause, the court stated it was not applicable because Rule 701 is a federal rule prescribed pursuant to a federal statute. Rule 701 does not violate the First Amendment, the Equal Protection Clause, the Rules Enabling Act, or the Supremacy Clause so the court affirmed the decision of the district court in granting the motion to dismiss.

Full Opinion

Ryan Jones

GOINES v. VALLEY CMTY. SERVS. BD., NO. 15-1589

Decided: May 9, 2016

The Fourth Circuit affirmed in part, vacated in part, and remanded by the court for further proceedings.

Gordon Goines was experiencing difficulties with his cable service. Goines was informed by the cable company that his neighbor was splicing into his cable service and that he should report the theft. Goines proceeded to the police station near his house and reported the theft. Goines suffers from cerebellar ataxia, a neurological condition that causes him difficulties with his speech, balance and certain fine motor functions. The disorder does not affect Goines’ cognitive functioning, and he has no mental health issues. The officers that Goines spoke too regarding his cable service suspected he had mental health problems and asked him if he “wanted to talk to someone” to which Goines responded yes. The officers proceeded to handcuff Goines and involuntarily take him to a mental health institute where he was stripsearched and evaluated by mental health staff. Goines thereafter brought this action under 42 U.S.C. § 1983, alleging that he was unlawfully seized without probable cause in violation of the Fourth and Fourteenth Amendments. The district court dismissed his complaint in its entirety based on Fed. R. Civ. P. 12(b)(6). This appeal followed.

The Fourth Circuit affirmed the district court’s judgment as to the charges against the mental-health evaluator and her employer, but vacated the charges as to the police officers since the complaint was sufficient to survive a motion to dismiss as to those charges. First, the Fourth Circuit determined that the district court erred in treating the allegations of the incident report as true. The Fourth Circuit determined that Goines did not adopt the incident report as true simply by relying on the report for some of the facts alleged in his complaint. Because there was no reliance on the report’s truthfulness, the district court erred in treating as true the factual statements contained in the incident report. The Fourth Circuit then determined that the officers had no probable cause for an emergency mental health detention and Goines’ complaint therefore alleges a constitutional violation. The Fourth Circuit next determined that probable cause did exist for the mental health evaluation because Goines accepted the information set out in the screening report for purposes of his claim. Because probable cause did exist, the complaint failed to allege a constitutional violation against the mental-health evaluator and her employer. The Fourth Circuit therefore affirmed the district court’s dismissal of Goines’ claims against the mental-health evaluator and her employer.

Accordingly, the Fourth Circuit affirmed the judgment of the district court in part, vacated in part and remanded the issue for further proceedings.

Full Opinion

Michael W. Rabb

G. G. v. GLOUCESTER CNTY. SCH. BD., NO. 15-2056

Filed: May 31, 2016

The Fourth Circuit denied Gloucester County School Board’s petition for rehearing. Judge Niemeyer dissented from the denial of the petition for rehearing.

Judge Niemeyer begins his dissent by pointing out that “[b]odily privacy is historically one of the most basic elements of human dignity and individual freedom.” In his opinion, the current Administration has determined, without congressional authority and in spite of Congress’ “unambiguous authorization in Title IX to provide for separate restrooms, showers, locker rooms, and dorms on the basis of sex,” that they can sidestep such provisions by altering the definition of sex “to mean how any given person identifies himself for herself at any given time,” and consequently deny the dignity and freedom of bodily privacy of affected individuals.

Additionally, Judge Niemeyer points out that the norms on this issue of virtually every civilization are challenged. However, he clarifies that such norms are not meant to “protest against persons who identify with a gender different from their biological sex.” Instead, society needs to seek to understand their situation and strive to address it in helpful, but permissible, ways. Nonetheless, doing so does not require protections of bodily privacy be cut down, nor should the separation-of-powers principles, which were created to safeguard Congress’ role of policymaking and the traditional powers of the States, be circumvented or rejected.

Accordingly, while Judge Niemeyer supports the position that the issue at hand should be granted rehearing before an en banc court, he did not request a poll on the petition for rehearing en banc, because the case is of such “momentous nature” that nothing should impede its path to the Supreme Court so that the Court may present a controlling construction of Title IX for national application. Instead, he casts only a symbolic vote to grant panel rehearing, while urging the parties to seek Supreme Court review.

Full Opinion

Charlotte Harrell

DUCKETT v. FULLER, NO. 15-6568

Decided: April 25, 2016

The Fourth Circuit reversed the district court’s ruling and remanded the case for further proceedings.

In April 2013, Plaintiff, Lewis Duckett, and 15 other inmates at Kershaw Correctional Institution sued the South Carolina Department of Corrections and others, alleging that the food served to him was so deficient as to violate his Eighth Amendment rights.  The “Class Action Complaint” alleged that the prison authorities “failed to serve food satisfying recommended minimum daily amounts of vitamins and nutrients; that they served insufficient portions; and that they misrepresented food as beef when it was actually made from ground poultry offal and organs.”  The district court ruled that the case be severed into sixteen separate actions.  After the severance of the action, Duckett paid the filing fee and supplemented his claim.  The district court dismissed Duckett’s complaint on the state defendant’s Rule 12(b)(6) motion, concluding that Duckett was barred by the doctrine of res judicata even after the magistrate judge’s recommendation “‘that neither res judicata or collateral estoppel bar[red] the plaintiff’s complaint.’”  The court concluded that Duckett’s complaint was essentially the same as a 2010 complaint that had been dismissed on the merits and that Duckett was in privity with Plaintiff McFadden in the prior case.  The district court explained “The claims are at their core identical, and thus qualify as the same cause of action.  To allow this claim to go forward would mean relitigating the same issues this court litigated in [the earlier suit].  This goes against the principles behind res judicata.”

On appeal, Duckett argued that he was not bound by the 2010 suit because he was not a party to it, he never had his day in court, and he had no meaningful way of participating in the 2010 suit.  Generally, a person is precluded from relitigating the claim if he has had the opportunity to litigate the claim.  “The doctrine of res judicata, or claim preclusion, is applied to bar a suit in light of a prior judgment when three elements are demonstrated: (1) that ‘the prior judgment was final and on the merits, and rendered by a court of competent jurisdiction in accordance with the requirements of due process’; (2) that ‘the parties are identical, or in privity, in the two actions’; and (3) that ‘the claims in the second matter are based upon the same cause of action involved in the earlier proceeding’ i.e., the claims ‘arise out of the same transaction or series of transactions, or in the same core of operative facts.’”  Taylor v. Sturgill stated that a person is not bound by the judgment of another claim if the person was not a designated party.  The Fourth Circuit concluded that the 2010 suit did not bind Duckett because he was not a party to the 2010 suit and he had not been served in that action.  The Court noted Duckett could be bound by the 2010 judgment if he fit into one of the exceptions in Taylor.  The Taylor court identified six exceptions to the general rule:  (1) “a nonparty who agrees to be bound by a judgment in an action ‘“is bound in accordance with the terms of his agreement”’”; (2) “a nonparty may be bound by a judgment ‘based on a variety of pre-existing substantive legal relationships’ between the nonparty and a party in the action, such as ‘preceding and succeeding owners of property, bailee and bailor, and assignee and assignor’”; (3) “a nonparty may be bound by a judgment when the nonparty was adequately represented in the action by a party with the same interests, such as in ‘properly conducted class actions, suits brought by trustees, guardians, and other fiduciaries’”; (4) “a nonparty is bound by a judgment if the nonparty ‘“assumed control” over the litigation in which that judgment was rendered’”; (5) “‘a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy,’ making preclusion ‘appropriate when a nonparty later brings suit as an agent for a party who is bound by a judgment’”; and (6) “‘in certain circumstances a special statutory scheme may “expressly foreclose successive litigation by nonlitigants . . . if the scheme is otherwise consistent with due process.”’”  The Court concluded that Duckett did not fit within exception 1, 3, 4, or 6 because there was not evidence that Duckett agreed to be bound by the 2010 judgment, that McFadden represented Duckett, that Duckett assumed control over McFadden’s 2010 suit, or that Duckett’s action implicated a special statutory scheme limiting relitigation.  The Court also concluded that exception 2 did not apply because there was no evidence that there was a substantive legal relationship between Duckett and McFadden.  Finally, the court concluded that exception 5 did not apply because Duckett paid the filing fee and supplied the court with his own account of the nature of his personal injuries.  Therefore, Duckett was not bound by the 2010 judgment and Duckett was not precluded from pursuing his own similar claims in this action.

Accordingly, the Court reversed the judgment of the district court and remanded for further proceedings.

Full Opinion

Alicia E. Morris

ACLU OF NORTH CAROLINA v. TENNYSON, No. 13-1030

Decided: March 10, 2016

The Fourth Circuit reversed and remanded the judgment of the district court with instructions that the district court enter judgment in favor of the state.

The state of North Carolina offers a specialty license plate program that offers a “Choose Life” plate. The state refuses, however, to offer a pro-choice license plate. Several organizations brought a lawsuit against the state of North Carolina alleging that the state violated the First and Fourteenth Amendments with this program. The district court found for the plaintiffs and issued an injunction prohibiting the state from issuing “Choose Life” plates without offering a pro-choice plate. The state appealed the decision of the district court to the Fourth Circuit arguing that the program was government speech and therefore it was permissible for it to engage in viewpoint discrimination when administering the plate program. The Fourth Circuit affirmed the district court holding that the First Amendment was violated. The state appealed to the United State Supreme Court which vacated the decision of the Fourth Circuit and remanded the case for reconsideration in light of a new decision in a Texas case, Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), that addressed the same issue.

In Walker, a Texas state license program was determined by the Supreme Court to be government speech. The Fourth Circuit determined that the license program in this case is indistinguishable from the program in Walker. Therefore, the Court determined that the state of North Carolina is free to reject license plate designs that convey messages with which it disagrees.

Accordingly, the judgment of the district court is reversed and remanded with instructions.

Full Opinion

Michael W. Rabb

KOLBE v. HOGAN, NO. 14-1945

Decided: February 4, 2016  

The Fourth Circuit vacated the district court’s denial of Plaintiffs’ Second Amendment claims and remanded for the district court to apply strict scrutiny. Additionally, the Fourth Circuit affirmed the district court’s denial of Plaintiffs’ Equal Protection claim to the statutory exception allowing retired law enforcement officers to possess prohibited semi-automatic rifles. Finally, the Fourth Circuit affirmed the conclusion of the district court that the term “copies” as used by the statute is not unconstitutionally vague.

Prior to the passage of the Firearm Safety Act (FSA), Maryland law permitted citizens in good standing to possess semi-automatic rifles after passing an extensive background check. Here, the FSA substantially expanded Maryland’s gun control laws, making it a crime to “possess, sell, offer to sell, transfer, purchase, or receive” or to transport into Maryland any firearm designated as an “assault weapon.” Md. Code, Crim. Law § 4-303(a). Assault weapons include “assault long gun[s]” and is defined as any one of the more than 60 semi-automatic rifle or shotgun models specifically listed in section 5-101(r)(2) of the Maryland Public Safety Code, “or their copies.” The FSA does not define the term “copies.” Plaintiffs make several challenges to the FSA, contending that: (1) the assault weapons ban violates the Second Amendment right to keep firearms in defense of hearth and home; (2) the FSA’s ban of large capacity detachable magazines (LCMs) are also a violation of the Second Amendment; (3) the exception to the ban for retired officers is a violation of the Equal Protection clause; and (4) the FSA is void for vagueness to the extent that it prohibits possession of “copies” of the specifically identified semi-automatic rifles banned by the FSA. The district court granted summary judgment to the State for each of the Plaintiffs’ claims. Plaintiffs appealed.

The Fourth Circuit first looked at the Plaintiffs’ Second Amendment challenge to the FSA’s ban on semi-automatic rifles and LCMs. The Second Amendment states, “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The approach to resolving Second Amendment challenges involves: (1) whether the challenged law imposes a burden on conduct falling within the scope of the guarantee of the Second Amendment, and if yes, (2) an application of the appropriate form of means-end scrutiny is necessary. The Fourth Circuit determined that the bans imposed by the FSA burden conduct that falls within the scope of the Second Amendment because the law prohibits the ownership of assault weapons and LCMs, commonly used as “arms” by law-abiding citizens that are not unusually dangerous, to be used in the home for self defense; therefore, an application of the correct means of scrutiny is appropriate. The Fourth Circuit decided that the district court erred in applying intermediate scrutiny, and noted strict scrutiny was appropriate because what is at stake is a fundamental right that is substantially burdened by the FSA. The law here goes beyond simple regulation and is instead a total prohibition of possession of certain types of arms, which is similar to District of Columbia v. Heller where the Supreme Court stated that strict scrutiny was appropriate. The Fourth Circuit remanded this issue back to the district court to require the government to prove its restrictions are “narrowly tailored to achieve a compelling government interest” in order for the FSA to be constitutional.

Next, the Fourth Circuit looked at the Plaintiffs’ Equal Protection argument. To succeed on an Equal Protection claim, a plaintiff is required to demonstrate that he or she has been treated differently from others with whom he or she is similarly situated. The “similarly situated” standard requires a plaintiff to identify persons materially identical to him or her who have received different treatment. Here, under the FSA, a retired officer enjoys two privileges that the public does not. One, he or she may possess an “assault weapon” as long as it was sold or transferred to the officer by the law enforcement agency on retirement or the officer purchased it or obtained it for official use with the law enforcement agency before retirement. Two, he or she is not subject to any of the restrictions on LCMs. Plaintiffs argue that, when it comes to owning semi-automatic weapons and LCMs, retired law enforcement officers and the public at large are “similarly situated.” However, the Fourth Circuit concluded this argument failed because law enforcement officers are different from the public in several fundamental aspects; therefore, there is not a violation of Equal Protection. These differences include the level of training and experience of an officer; the special degree of trust of a law enforcement officer; and the special threats that retired police officers face.  

The last argument alleged by Plaintiffs contend that the FSA is void for vagueness on its face because it is not drafted with sufficient clarity to permit an ordinary citizen to understand when a firearm qualifies as a “copy” of a banned semi-automatic rifle. Due process creates a requirement that a criminal statute provides adequate notice to a person of ordinary intelligence that his or her contemplated conduct is illegal, for no man or woman should be responsible for conduct which could not be reasonably understood to be criminal. The issue is whether the section of the FSA is set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with. Here, the Fourth Circuit determined the phrase “assault weapons and their copies” has a plainly legitimate sweep and is not unconstitutionally vague. Despite the FSA not specifically defining “copy,” the plain meaning of the word is not beyond the grasp of the ordinary citizen.

In summary, the Fourth Circuit vacated the district court’s award of summary judgment order on Plaintiffs’ Second Amendment claims and remanded the case for the district court to apply strict scrutiny. The Fourth Circuit affirmed the district court’s grant of summary judgment stating that there was no violation of Equal Protection with respect to the FSA’s exception permitting retired law enforcement officers to possess semi-automatic rifles. Finally, the Fourth Circuit affirmed the conclusion of the district court that the FSA is not unconstitutionally vague.

Dissenting, Judge King determined that it would have been appropriate to wholly affirm the judgment of the district court on the basis of the summary judgment decision. Additionally, Chief Judge Traxler wrote a dissenting opinion for the Equal Protection part of the opinion determining that remanding this issue to the district court to decide whether the FSA’s exception permitting retired law enforcement personnel to possess semi-automatic rifles and LCMs can be justified would be appropriate.  

Full Opinion

Austin T. Reed

 

AIKENS v. INGRAM, JR., NO. 14-2419

Decided: January 29, 2016

The Fourth Circuit affirmed the judgment of the district court.

In 2001, Plaintiff Colonel Federick Aikens (“Aikens”), was promoted from executive officer to full colonel and commanding officer of the 139th Rear Operations Center (“ROC”). After Aikens promotion, General William E. Ingram (“Ingram”) named Lieutenant Colonel Peter von Jess (“von Jess”) as executive officer to replace Aikens. This assignment meant that Aikens was in a supervisory position over von Jess. In December 2002, Aikens was required to complete an officer evaluation report of von Jess, where he gave von Jess a negative report. In 2003, Aikens was called to active duty in Kuwait, but Ingram and von Jess remained in North Carolina. However, the animosity between Aikens and von Jess did not subside. In November 2003, Aikens was informed that two technology personnel staff members had used illegal means to obtain his personal emails. Aikens learned that those emails had been forwarded to von Jess. Von Jess then forwarded the emails to the Department of the Army Inspector General (“DAIG”). DAIG concluded that the emails had been improperly obtained, but nonetheless used to emails to find six instances of active duty misconduct on Aikens’ part. Ingram received the emails from DAIG and then forwarded the findings to the Commander of the First United States Army, Lieutenant General Russel Honoré. As a result, Aikens was terminated. On April 27, 2006, Aikens sued Ingram and von Jess pursuant to 42 U.S.C. § 1983, claiming that they facilitated unconstitutional searches and seizures of Aikens’ personal emails while he was deployed in Kuwait. The district court granted summary judgment in favor of Ingram and von Jess, based on the justiciability doctrine set forth in Mindes v. Seaman, which sets forth a four factor test for reviewability of claims based on internal military affairs.

On appeal, the Fourth Circuit found that Mindes had no place in its analysis because Mindes applies only to equitable relief and Aikens had abandoned his claim for equitable relief. Instead, the Court relied on Feres v. United States, and affirmed the district court’s grant of summary judgment on the basis of the military abstention doctrine. Originally, Feres stood for the proposition “that the Government is not liable under the Federal Tort Claims Act for ‘injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.’” This has been called the Feres “incident to service test.” The Untied States Supreme Court has subsequently applied the “incident to service test” to actions outside of the Federal Tort Claims Act. In the instant case, the Fourth Circuit found that the Feres “incident to service” test applies to §1983 actions. The Court justified this application based on Supreme Court jurisprudence and the delicate separation of powers necessary for smooth and effective military governance. As such, the Court applied the Feres “incident to services” test and found that Aikens alleged injuries arose out of activity incident to services because Aikens was on active duty, deployed in a war zone, and used a computer system set up by military personnel.

Accordingly, the Court abstained from reviewing Aikens’ §1983 claim because it fell under the Feres “incident to service test.” Consequently, the Court affirmed the district court’s dismissal of the case.

Full Opinion

Meredith Weisler

 

CENT. RADIO CO., INC. ET AL. v. CITY OF NORFOLK, VA., NO. 13-1996, 13-1997

Decided: January 29, 2016

The Fourth Circuit dismissed the appeal in part, affirmed in part, and reversed in part the judgment of the district court.

In this case, the district court granted summary judgment to the City of Norfolk (“Norfolk”) on plaintiffs’ claims that the City’s sign ordinance violated the plaintiffs’ rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs, Central Radio Company (“Central Radio”), Robert Wilson (“Wilson”), and Kelly Dickinson (“Dickinson”), argued that Norfolk’s sign ordinance unconstitutionally “exempted certain displays from regulation, effectuated a prior restraint on speech, and was enforced selectively in a discriminatory manner by zoning officials.” The plaintiffs’ challenges to Norfolk’s sign code relate to a protest of certain adverse actions taken against Central Radio by the Norfolk Redevelopment and Housing Authority (NRHA). In May of 2012, the plaintiffs initiated a civil action to enjoin the City from enforcing the former sign code. The plaintiffs claimed that the sign code was unconstitutional. The district court denied the plaintiffs’’ subsequent motions and granted summary judgment in favor of Norfolk. The court determined that the provisions of the former sign code exempting flags, emblems, and works of art were content-neutral. As a result, the court then applied intermediate scrutiny and held that the former sign code was a constitutional exercise of Norfolk’s regulatory authority.  

On appeal, the Fourth Circuit found that the resolution of whether or not the sign ordinance was content-neutral or content based should be guided by the United States Supreme Court’s recent decision in Reed v. Town of Gilbert, 134 S. Ct. 2218 (2015). After applying the relevant principals of content neutrality found in Reed, the Court held that the sign ordinances challenged in the plaintiffs’ complaints were content-based regulations. “On its face, the sign code was content-based because it applied or did not apply as a result of content, that is, ‘the topic discussed or the idea or message expressed.’” As a result of the sign ordinance being content-based regulation of speech, the Court applied strict scrutiny in determining its constitutionality. The Court found that the sign ordinance failed strict scrutiny because Norfolk failed to satisfy its burden of proving that its restriction of speech was narrowly tailored to further a compelling government interest. Accordingly, the Court concluded that the sign ordinance failed strict scrutiny, and as such was unconstitutional under the First Amendment. The Court remanded the First Amendment claim to the district court to award nominal damages to the plaintiffs or any other relief. Further, the Court found that because Norfolk amended the sign ordinance in 2015 after the Supreme Court’s decision in Reed, that the plaintiffs’’ request for prospective relief based on the content restrictions in the prior ordinance was moot. The Court noted that on remand the district court has the option to consider whether the plaintiffs may bring a new claim challenging the constitutionality of the amended ordinance and seek any associated injunctive relief.

The Court, however, found no merit in the plaintiffs’ selective enforcement claim, and therefore, the Court affirmed the court’s disposition of that claim.

Full Opinion

Meredith Weisler

 

COLON HEALTH CTRS. OF AM. v. HAZEL, NO. 14-2283

Decided: January 21, 2016  

The Fourth Circuit affirmed the district court’s holding that the certificate requirement neither discriminated against nor placed an undue burden on interstate commerce and granted summary judgment to the Commonwealth of Virginia.

The Commonwealth of Virginia requires medical service providers to obtain a “certificate of public need” in order to establish or expand operations within its borders. The certificate of need (CON) program applies to most health care capital expenditures, but does not cover the replacement of existing equipment. The CON program requires an applicant to show a sufficient public need for its proposed venture in the relevant geographic area. A certificate may not be issued unless the State Health Commissioner has determined that a public need for the project exists. Constructing new facilities or supplementing existing operations without a CON is a Class 1 misdemeanor, punishable by fines of up to $1,000 for each day a service provider is in violation of the statute. Applicants who are dissatisfied with the Commissioner’s decision may seek judicial review.

Colon Health Centers and Progressive Radiology (Appellants) are out-of-state medical providers that desire to establish, via the use of private funds, specialized MRI and CT services in Virginia. Appellants were denied a CON and sought judicial review. The district court ultimately granted summary judgment in favor of the Commonwealth. Appellants argue on appeal, first, Virginia’s CON requirement violates the dormant Commerce Clause by discriminating against interstate commerce in both purpose and effect, and second, Appellants argue that even if the program does not unconstitutionally discriminate, it nevertheless violates the dormant Commerce Clause because it places an undue burden on interstate commerce.  

The Commerce Clause delegates Congress the power to regulate commerce among the states. Under the dormant Commerce Clause, the Supreme Court has recognized that there is a limit on the states to erect barriers against interstate trade. This constraint is driven by concerns over “economic protectionism,” which is regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors. When a state statute discriminates against interstate commerce, it must be struck down unless a valid factor unrelated to economic protectionism exists.

Here, the Appellants argued that the program discriminates in both purpose and effect. Concerning purpose, they noted that the law is intended to “protect the economic viability of existing [service] providers” by impeding the development of new medical facilities. However, the Fourth Circuit determined Virginia’s program serves several legitimate public purposes including, “improving health care quality by discouraging the proliferation of underutilized facilities, enabling underserved and indigent populations to access necessary medical services, and encouraging cost-effective consumer spending.” Additionally, Appellants argued that in practice, the CON program “systematically advantages established in-state providers at the expense” of new, primarily out-of-state firms. However, the Fourth Circuit stated that even though the Appellants might have been frustrated by the law, there was no appreciable difference in the treatment of in-state and out-of-state entities. Therefore, the Fourth Circuit decided not to take the potentially limitless step of striking down every state regulatory program that has some alleged adverse impact on market competition.

Even when a law does not facially, in effect, or in purpose discriminate against interstate commerce, the court has undertaken a second analytical step, to make sure none of the law’s incidental burdens on interstate commerce are not clearly excessive in relation to its local benefits. The weighing or quantifying of a law’s benefits and burdens can be a very difficult exercise. A rational basis standard of review is applied in identifying the local benefits to be weighed against incidental burdens on interstate commerce.

Virginia advanced a number of legitimate interests in support of its CON program. First, it argued that the CON program improves healthcare quality. Second, the CON program may benefit underserved and indigent populations’ access to medical care. Third, by reducing competition in highly profitable operations, the program might provide existing hospitals with the revenue they need to support money-losing but important operations. Finally, the CON program reduces capital costs and the costs to consumers of medical services. Although the Appellants offered several arguments as to the burdens that the CON program faced, the Fourth Circuit determined that the burdens did not outweigh the aforementioned local benefits. Under rational basis review, reasonable debates such as this one are resolved in favor of upholding state laws. Therefore, the Fourth Circuit ultimately affirmed the decision of the district court.

Full Opinion

Austin T. Reed

 

ESTATE OF ARMSTRONG v. VILL. OF PINEHURST, NO. 15-1191

Decided: January 11, 2016  

The Fourth Circuit held that the Appellees (Village of Pinehurst) used unconstitutionally excessive force when seizing Armstrong and agreed with the district court that the Appellees were entitled to qualified immunity. Therefore, the district court’s grant of summary judgment in the Appellees’ favor was affirmed.

Armstrong, who suffered from bipolar disorder and paranoid schizophrenia, had been off of his medicine for several days. Armstrong’s sister brought him into the hospital, and when he fled, the Pinehurst Police were called. When the police arrived, Armstrong’s commitment order had not yet been finalized, and the parties engaged in conversation in which Armstrong was acting weirdly. As soon as the commitment papers were complete, the police advanced toward Armstrong, where he wrapped himself around a post and refused to budge. After pleading with Armstrong for thirty seconds, the officers tased Armstrong a total of five times over two minutes and pulled Armstrong off of the post. While struggling with Armstrong to place him in handcuffs, Armstrong complained he was being choked. After subduing Armstrong, Armstrong’s sister noticed that he was facedown and unresponsive. His skin was blue, and he did not appear to be breathing. The officers administered CPR, called EMS, and the hospital pronounced him dead shortly after his admission.

Armstrong’s Estate (Appellant) sued each police officer involved in Armstrong’s seizure, pursuant to 42 U.S.C. § 1983, alleging that the officers used excessive force, in violation of Armstrong’s Fourth and Fourteenth Amendment rights, when seizing him. The district court granted summary judgment to the Appellees stating that there was not likely a constitutional violation, but if there was, the defendants were entitled to qualified immunity. This appeal followed. Qualified immunity is a protection for officers that commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful. This immunity involves two inquiries: “(1) whether the plaintiff has established the violation of constitutional right, and (2) whether that right was clearly established at the time of the alleged violation.” In order to survive summary judgment, both of these questions must be answered in the affirmative.     

The Fourth Circuit first inquired as to whether the facts alleged, taken in the light most favorable to the party asserting the injury, show the officer’s conduct violated a constitutional right. When determining if excessive force has been used, the court looks at first, “the severity of the crime at issue”; second, the extent to which “the suspect poses an immediate threat to the safety of the officers or others”; and last, “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” The first factor weighs heavily in Armstrong’s favor because no crime was actually committed, and even if his resisting was determined to be a crime, it was a minor one, and the factor would still weigh in Armstrong’s favor. It is important to note that the conduct used to treat a mentally ill person is different than the conduct used to treat someone who has committed a crime. The second and third factors, whether Armstrong threatened the safety of others and resisted seizure, do justify some, limited, use of force. However, the degree of force needed is enough to prevent Armstrong’s flight, and it was clear Armstrong was not going anywhere, and the only risk he posed was to himself. Further, the officers only spoke to Armstrong for thirty seconds to attempt to have him let go of the pole before tasing him. The use of a taser is unreasonable force in response to resistance that does not raise a risk of immediate danger. The proportionality of the force in light of the circumstances show that the amount of force Appellees used was not objectively reasonable. Here, the Fourth Circuit determined that when seizing Armstrong, the Appellees used unreasonably excessive force in violation of the Fourth Amendment.

However, the district court’s grant of summary judgment was still proper because Appellees were entitled to qualified immunity. A plaintiff can prove that an official has violated his rights, but an official is still entitled to qualified immunity. After defining the constitutional right, the court must ask whether it was clearly established at the time the Appellees acted. This requirement is satisfied when it is clear that every reasonable official would have understood that what he or she was doing would violate that right. Unlawfulness must be apparent. Here, the constitutional right in question is Armstrong’s right not be subjected to tasing while offering stationary and non-violent resistance to a lawful seizure. While the precedent supported the conclusion that Appellees violated that right while seizing Armstrong, the Fourth Circuit acknowledged that this conclusion was not so settled at the time they acted that “every reasonable official would have understood that tasing Armstrong was unconstitutional. Case law indicated that Appellees were treading close to the constitutional line; however, the case law did not have sufficiently clear guidance to forfeit their qualified immunity. Therefore, the Fourth Circuit affirmed the district court’s grant of summary judgment to the Appellees.

The Fourth Circuit used this opinion to clarify when the use of a taser amounts to excessive force, at least in some circumstances. A taser is expected to inflict plain or injury when it is used. It, therefore, may only be deployed when a police officer is confronted with a circumstance that creates an immediate safety threat and that is reasonably likely to be cured using a taser. A seizure suspect does not create a sufficient risk because he or she is doing something that can be characterized as resistance, even when that resistance includes physically preventing an officer’s manipulations of his body. Safety risks do not necessarily arise because there is erratic behavior or mental illness. Importantly, when a seizure is intended to prevent a mentally ill individual from harming himself, the officer affecting the seizure has a lessened interest in deploying potentially harmful force. Therefore, during the course of the seizure of a mentally ill person who is only in danger to himself, police officers who choose to use a taser in the face of stationary and non-violent resistance to being handcuffed have used unreasonably excessive force. Even though qualified immunity protected the officers in this situation, law enforcement officers should now be on notice that this type of taser use constitutes a violation of the Fourth Amendment.

Full Opinion

Austin T. Reed

 

U.S. v. RUSH, NO. 14-4695

Decided: December 21, 2015

The Fourth Circuit reversed the order of the district court and remanded the case for further proceedings.

On May 23, 2012, Marquita Willis (“Willis”) called the Metropolitan Drug Enforcement Network Team of Charleston, West Virginia (“MDENT”) to inform them that she suspected Defendant Kenneth Rush (“Rush”) of dealing drugs from her apartment. Willis gave the police officers a key to her apartment. The officers found Defendant asleep in the master bedroom. After waking Defendant, the officers handcuffed and questioned Defendant. Sergeant Winkler told Defendant that the officers had a warrant to search the apartment, however, they did not in fact have a warrant. In a search of the apartment, the officers found crack cocaine and digital scales. Defendant was arrested and charged with one count of knowingly and intentionally possessing with intent to distribute twenty-eight grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). Defendant moved in limine to suppress the evidence obtained from the warrantless search of Willis’s apartment. The district court found a constitutional violation, however, it denied the motion to suppress. The court noted that the police lied “in a justifiable effort to protect Willis.”

On appeal, the Fourth Circuit noted that both parties agreed that the Defendant’s Fourth Amendment rights were violated. The parties, however, disagreed about whether the resulting evidence should be suppressed. The Court stated that exclusion of evidence is appropriate when the deterrence benefits of suppression outweigh the “substantial social costs” of excluding the evidence. The Court cited United States Supreme Court case law that found a good-faith exception, “when police act with an objectively reasonable good-faith belief that their conduct is lawful.”

In this case, the Court found that the search was unconstitutional due to the intentional decision of Sergeant Winkler to tell Defendant that he had a search warrant, when he did not. Furthermore, the Court held that the good-faith exception did not apply because the officers did not hold an objectively reasonable belief that it was lawful to conduct the search after lying about the existence of a warrant. The government argued that the officers acted in good faith because the officers merely sought to protect Willis. The Court, however, disagreed and reiterated that the good-faith exception only applies if the officers have an objectively reasonable belief that their conduct is actually lawful. Therefore, the Court found that the good-faith exception did not apply in this case.

Accordingly, the Court reversed the judgment of the district court and remanded the case.

Full Opinion

Meredith Weisler

 

U.S. v. STOVER, NO. 14-4283

Decided: December 18, 2015  

The Fourth Circuit affirmed the district court’s denial of the defendant’s motion to suppress a firearm as the fruit of an illegal seizure.  

In the early morning hours, two uniformed police officers were patrolling the “King Sector” of Temple Hills, Maryland. This was an area where several violent robberies had recently occurred. At approximately 1:00 a.m., the officers noticed a vehicle double-parked in the small private parking lot of an apartment building. Despite noting that it was “not suspicious for someone to be sitting in a parking lot,” the officers returned a few minutes later to check on the car. Because of the car’s out-of-state plates, the area’s reputation for crime, and the double-parking, the officers concluded they had the right to stop the occupant of the car to see what was going on.  The officers pulled behind the vehicle, activated the emergency lights, and illuminated the driver’s side of the vehicle with a spotlight.  

During the suppression hearing, there was conflicting testimony between the officers and a passenger that was in the vehicle. After considering the conflicting accounts, the district court found the following facts by a preponderance of the evidence. When the police vehicle pulled up, Stover did at some point get out of the vehicle and open two of the vehicle’s doors. Stover, at some point, did walk to the front of the car. At some point, one of the officers said, “get back in the car” and tried to stop Stover from getting out of the car. When one of the officers saw Stover move to the front of the vehicle, the officer ran to the front of the vehicle with his gun out, and put the gun in Stover’s face. It was the presence of the officer’s gun in the face of Stover that caused Stover to “acquiesce” and for Stover to drop a gun in front of the vehicle. Only after Stover dropped his loaded gun did he comply with the officers and got back in the vehicle.

Stover was charged with a single count of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) (2012). Stover attempted to suppress the gun as the fruit of an illegal seizure. The government did not maintain that the officers had reasonable suspicion to stop Stover; however, the government argued that under California v. Hodari, Stover never submitted to police and thus was not seized until after he dropped the loaded gun at the hood of the vehicle. The district court agreed and because Stover dropped his gun prior to complying with police orders, the district court found that the gun had been abandoned before the seizure and was admissible at trial. Stover was found guilty and appealed, challenging the district court’s denial of his motion to suppress.

Neither party disputed that a seizure occurred during the interaction in the parking lot. However, they did dispute exactly when the seizure occurred. Stover argues that the officers seized him, without reasonable suspicion, when the police vehicle pulled up behind his vehicle in the parking lot, rendering his gun the fruit of an illegal seizure. Conversely, the government argues that the officers did not seize Stover until after he abandoned his firearm in front of his car, prior to submitting to police authority.

The Fourth Amendment protects the rights of the people against unreasonable seizures. Generally, law enforcement officers do not seize individuals by merely approaching them in a public place and putting questions to them. In Terry v. Ohio, the Supreme Court explained, “only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred.” When there is an absence of physical force, a seizure requires both a “show of authority” from law enforcement officers and “submission to the assertion of authority” by the defendant. In order to display a “show of authority,” an objective test is used, looking at the circumstances of the incident and whether a reasonable person would have believed that he was not free to leave. But without actual submission to the police, there has only been an attempted seizure, which is not subject to protection by the Fourth Amendment.

First, the Fourth Circuit considered whether, under the totality of the circumstances, a reasonable person would have felt free to leave after the officers pulled behind Stover’s car. The officers blocked Stover’s vehicle, were armed and uniformed and did not ask if they could speak to him, activated the blue lights, drew their weapons, and shined a spotlight on Stover. The Fourth Circuit determined this was not a close question and the police officers’ aggressive conduct from the start of their interaction would have made a reasonable person feel unable to leave.

Second, the Fourth Circuit considered whether Stover’s conduct constituted a submission to the assertion of authority by the police officers. Stover argues that he passively acquiesced to police authority by remaining at the scene. However, the district court determined his actions did not show his submission to the assertion of the officer’s authority. The evidence shows that instead of remaining seated in his car, Stover exited the vehicle with the loaded gun in his hand. Officers attempted to get him to stay in the car; however, Stover continued to walk away towards the front of the vehicle. Only after Stover dropped his firearm did he comply with police orders. The Fourth Circuit concluded that, under the totality of the circumstances, it could not hold that “walking away from police with a loaded gun in hand, in contravention of police orders, constitutes submission to police authority.” Therefore, the Fourth Circuit held the gun was not the fruit of the seizure, but was abandoned.

Judge Gregory dissented, believing that Stover passively acquiesced to the police’s show of authority because he remained at the focal point of the investigation without attempting to avoid being seized; therefore, the firearm would have been the fruit of an illegal seizure.

Full Opinion

Austin T. Reed

 

U.S. v. SCHNITTKER, NO. 14-4905

 

Decided: December 2, 2015

The Fourth Circuit affirmed the district court’s ruling that there was no Double Jeopardy.

This case arose when Michael Schnittker (“Schnittker”) pled to the possession of child pornography under 18 U.S.C. 2252(a)(4) and then was tried and convicted under 18 U.S.C. 2252(a)(2) for the receipt of child pornography. There were two hard drives containing images at issue: the Maxtor hard drive and the Western Digital hard drive. Schnittker brought this appeal, claiming that the plea should have barred his conviction of the second charge due to the Fifth Amendment’s Double Jeopardy Clause.

The Fourth Circuit began by briefly reciting the facts and procedural history of the lower court, and then determined that the proper standard of review was de novo. First, the Fourth Circuit determined whether or not the two charges were the same in fact, after assuming for the purposes of this case that they’re the same in law. The Court said that “the inquiry must focus on what a reasonable person would understand at the time the defendant entered his plea, because that is the time at which jeopardy attaches.” The Court decided that an “objective person” in Schnittker’s place would have thought he was pleading guilty to possession only in regard to the Western Digital hard drive. Furthermore, once the government learned of his intent to plea, the government expressly limited his guilty plea to what was found on the Western Digital hard drive, and had spreadsheets documenting the file names on the different hard drives to show that the Maxtor hard drive only applied to Count 1 and the Western Digital hard drive only applied to Count 2. Although the hard drives shared some of the same images, the Court decided that because there were different files on the Western Digital hard drive that did not support the receipt of files that the Maxtor hard drive supported, there was no double jeopardy. Accordingly, the Fourth Circuit affirmed.

Full opinion

Jennie Rischbieter

GRIFFIN v. BALTIMORE POLICE DEP’T, NO. 14-1494

Decided: October 27, 2015

The Fourth Circuit affirmed the district court’s ruling.

In 1982, Plaintiff, Wendell Griffin was convicted for the murder of James Williams Wise and also for related weapons charges. In June of 2010, Griffin filed a pro se petition seeking post-conviction DNA testing of certain evidence. Griffins’ appointed counsel filed a Maryland Public Information Act request, which provided documents that allegedly revealed that Baltimore City Police Department detectives withheld from the defense certain exculpatory evidence.  On February 2, 2012, Griffin moved for state post-conviction relief and on May 23, 2012, Griffin was placed on three years unsupervised probation. Griffin then sued the Baltimore City Police Department and three of its former detectives under 42 U.S.C. § 1983 for damages. The district court dismissed his claims pursuant to the bar set forth in Heck v. Humphrey, stating that Griffin had “ample opportunity to seek federal review . . . prior to his release from incarceration.”

In Heck, the United States Supreme Court prohibited § 1983 claims from implicating issues more appropriately resolved via federal habeas corpus or state post-conviction relief. Griffin argued that his claims were not subject to Heck because they fell under an exception recognized in Wilson v. Johnson. Wilson recognizes an exception to the Heck bar in cases where a litigant could not have sought habeas corpus relief while in custody. The Court found, however, that Griffin did not lack access to habeas relief while he was in custody. Griffin had three decades to seek habeas relief, whereas Wilson only had a few months to make a habeas claim. Griffin was even able to bring a federal habeas claim while in custody. Although his petition was denied, the fact that he was able to file it demonstrates the differences between his case and Wilson. Therefore, the Court found that Griffin had no obstruction to habeas access allowing an expansion of the Heck exception. The Court noted that its decision sounded in procedure and not substance. Its holding was not meant to bar Griffin from seeking a remedy for possible police misconduct, only that the vehicle he chose was not appropriate under Supreme Court and circuit precedent.

Accordingly, the Court affirmed the judgment of the district court.

Full Opinion

Meredith Weisler

 

U.S. v. PATIUTKA, NO. 14-4932

Decided: October 23, 2015

The Fourth Circuit affirmed the lower court’s ruling.

The district court rejected all of the Government’s contentions that that the evidence was admissible under Fourth Amendment exceptions, granted the defendant’s motion to suppress, and the Government appealed.

After determining that the standard of review on a motion to suppress was de novo, and then examined the two exceptions to the warrant requirement that the Government set forth. The first exception that the Government contends applied was that the search was incident to Patiutka’s arrest. Although the Court agreed that a search incident to an arrest may be made under appropriate circumstances, and cited to appropriate case law, in this instance, the Court found that the officers did not have probable cause to arrest Patiutka for any offense after he revoked consent for officers to search his car. The Court pointed to the district court’s findings that Trooper Cox’s testimony regarding probable cause was not held to be creditable, and specifically noted that the video shown at the hearing showed that Cox stopped the search as soon as Patiutka objected, which indicated that the search was purely consent-based. Therefore, because Trooper Cox did not have probable cause to arrest Patiutka, the search incident to arrest exception was inapplicable.

As to the Government’s second argument, that the search was valid under the automobile exception, the Court again found that this argument was without merit. After carefully setting forth the automobile exception rule, as well as the probable cause definition, the Court then delineated the facts that the district court used in making its determination, and agreed with the district court that those facts did not provide an adequate objective basis for finding probable cause to search an automobile. Because the Court found that there were legitimate, law-abiding reasons for Patiutka to have had credit card readers, iPads, and suitcases in his car, and that at best Trooper Moore potentially had a “reasonable articulable suspicion” that should have resulted in further questioning, the automobile exception did not apply.

Although the Government attempted to argue that the “collective-knowledge doctrine” should impute Trooper Cox’s suspicion about Patiutka’s identification to Trooper Moore, the Court agreed with the district court that the doctrine did not apply, albeit for a slightly different reason. The Court found that because Trooper Cox had no probable cause to “communicate to a fellow officer,” and that Trooper Moore continued the search even though Trooper Cox had halted the search, the collective knowledge doctrine was insufficient to provide probable cause. For those reasons, the Fourth Circuit held that neither of the exceptions applied and affirmed the district court’s grant of Patiutka’s motion to suppress.

Full Opinion

Jennie Rischbieter

U.S. v. SLOCUMB, NO. 14-4733

Decided: October 22, 2015  

The Fourth Circuit reversed the district court’s denial of defendant’s motion to suppress, vacated the defendant’s conviction and sentence, and remanded for further proceedings after determining the Culpeper, Virginia, Police Department lacked reasonable suspicion to detain the defendant.

The Culpeper Police department executed a search warrant on a house that was suspected for drug activity. The police used the parking lot of Culpeper Salvage, located across the street, as a staging area for the search. When the officers arrived, they found Slocumb, his girlfriend, Lewis, and an infant in the parking lot transferring a child seat from one car to the other. The officers observed Slocumb hurrying Lewis along, and Slocumb told an officer that one of the cars had broken down. The officers informed Slocumb and Lewis to not leave and had an officer wait with them as the other officers executed the warrant.

At some point, the officer waiting with Slocumb and Lewis asked Slocumb for identification. Slocumb cooperated and gave the officer the name “Anthony Francis.” Further, Slocumb declined to give the officer consent to search him and answered inconsistently to several questions. When Lewis was asked what Slocumb’s name was, she responded that his name was “Hakeem,” which officers recognized as someone who was under investigation for drug trafficking. Slocumb was promptly arrested for providing a false name, and officers found approximately $6,000 on his person. When asked by officers, Lewis gave permission for the search of one of the vehicles. The officers found methamphetamine, cocaine powder, cocaine base, and marijuana in the car. At that moment, Slocumb claimed ownership of the drugs. A subsequently obtained search warrant for Slocumb’s residence uncovered more drugs and paraphernalia.  

Slocumb made a motion to suppress the physical evidence seized and the statements made. The district court denied the motion, finding that his initial detention was supported by reasonable suspicion, and the officers had probable cause to arrest him. Additionally, the district court found Lewis had authority to consent to the search of the vehicle. Slocumb appealed.

In review of Slocumb’s seizure, the court looks at the totality of the circumstances to determine whether the officer had reasonable suspicion of criminal activity. The district court determined that factors such as the high-crime area, the lateness of the hour, the fact that the business had been closed for many hours, and Slocumb’s individual behavior are permissible factors that can contribute to a finding of reasonable suspicion. However, the Fourth Circuit determined that these factors were insufficient to support reasonable suspicion. When a defendant does not try to flee or leave the area, we have found reasonable suspicion on a showing of more “extreme” or unusual nervousness or acts of evasion. It is important to not overplay a suspect’s nervous behavior in situations where citizens would normally be expected to be upset. Here, Slocumb’s behavior was normal considering the situation, and his behavior did not give rise to reasonable suspicion. Therefore, the district court erred in denying Slocumb’s motion to suppress.

Full Opinion

Austin T. Reed

 

U.S. v. SAID, NO. 14-4413

Decided: August 13, 2015

In this piracy case, the Fourth Circuit rejected the defendants’ objections to the district court’s failure to dismiss piracy charges, jury instructions on piracy, and sufficiency of evidence on piracy and other charges.  The Fourth Circuit found merit in the Government’s appeal of the district court’s finding that the statutorily mandated life sentences for piracy violated the Eighth Amendment prohibition against cruel and unusual punishment.  On this basis, the Fourth Circuit reversed the district court’s Eighth Amendment Order, vacated defendants’ sentences, and remanded for resentencing.

In early 2010, seven Somalis including Said piloted a boat into the Gulf of Aden for the purpose of seizing a merchant ship.  Their plan was foiled when they were stopped by a British warship, the HMS Chatham, and ultimately sent home.  In April, 2010, another group of seven Somalis including Said and three of his earlier accomplices took a boat into the Gulf of Aden.  Incorrectly thinking that it was a merchant ship, the Somalis attacked a United States Navy warship, the USS Ashland.  During the attack and resulting response from the Ashland, several of the Somalis sustained injury, one Somali died, and the Somali boat was destroyed.  There was little to no damage to the Ashland and her crew.  The crew of the Ashland apprehended the Somalis.

In April, 2010, a grand jury in the Eastern District of Virginia indicted the six remaining Somalis (the six).  In July of that same year, the grand jury, in a superseding indictment based only on the Ashland incident, indicted the six for various crimes, including piracy under 18 U.S.C. § 1651.  In July, the six moved to dismiss the piracy charge on the basis that piracy required robbery at sea, and because they had not seized the Ashland, they could not be guilty of robbery at sea.  The district court granted their motion, and dismissed the piracy charge.  In August, one of the six agreed to assist the government in the prosecution of the remaining five Somalis (the five), and subsequently pled guilty to three non-piracy charges.  The government appealed the district court’s dismissal of the piracy charges.  Following the Fourth Circuit’s holding in United States v. Dire, which found that the definition of piracy did not require robbery on the high seas, the Fourth Circuit in May, 2012, vacated the dismissal of the piracy charges, and remanded for further proceedings.  

In August, 2012, the grand jury indicted the five in a second superseding indictment on piracy and related charges which incorporated both the Chatham and Ashland incidents.  The five again moved to dismiss the piracy charges, and the district court rejected the motion based on Dire.  At trial, the five moved unsuccessfully for acquittal of charges, and objected unsuccessfully to jury instructions based on Dire.  In February, 2013, the five were convicted on all counts.  They again moved unsuccessfully for acquittal.  Before sentencing, the five moved to invalidate the mandatory life sentence under 18 U.S.C. § 1651 as constituting cruel and unusual punishment in violation of the Eighth Amendment.  Applying the two prong test from Graham v. Florida for as-applied non-capital punishment, the district court first found that the there was a gross disproportion between the crime here and the life sentence, because the five had in effect committed only attempted piracy.  Under the second prong of the test, the court found the life sentence disproportionate in relation to other crimes requiring mandatory life sentence which nearly all involve the death of another, and in relation to global sentences for piracy, which average 14 years.  On the basis of this analysis, the district court found the mandatory life sentences for piracy cruel and unusual, and sentenced the five to from 360 to 500 months imprisonment, of which 140 to 264 months were for piracy.  The government appealed the district court’s decision not to impose the mandatory life sentence under 18 U.S.C. § 1651.  The five cross-appealed the court’s failure to dismiss the piracy charge, jury instructions on piracy, and sufficiency of evidence supporting their convictions.

The Fourth Circuit first analyzed the five’s objections.  The Court held that the district court did not err in declining to dismiss piracy charges, nor in instructing the jury on piracy.  The Court based this finding on Dire’s holding that piracy did not require robbery on the seas, which the five conceded the district court had to, and did, follow.  The Fourth Circuit then held, based on Dire and the trial evidence, that there was sufficient evidence to prove a case against the five on piracy.  The Court also held, based on the trial evidence, that there was sufficient evidence against four of the five of conspiracy, intent to perform an act of violence against an individual on a ship, and consequently against two of the five on related firearms charges.  

The Fourth Circuit next analyzed the government’s objection to the finding that the statutorily mandated life sentences for piracy violated the Eighth Amendment.  Using the Graham v. Florida test, the Fourth Circuit found that the first prong was not met, because it is hard to meet the grossly disproportionate standard for non-capital sentences, and Congress had rationally decided that piracy should be harshly punished.  Because the first prong of the test was not met, the Fourth Circuit did not analyze the second prong.

On this basis, the Fourth Circuit affirmed the conviction of the five, reversed the district court’s holding in regards to the Eighth Amendment, vacated the sentences of the five, and remanded for resentencing.  Judge Davis wrote a separate concurring opinion to note that not all piracy offenses are alike.  Though he found the Fourth Circuit’s holding correct under the current law, he noted that Congress could allow federal judges more discretion in sentencing those convicted of piracy, so that the sentences would more accurately reflect the actual crimes committed.

Full Opinion

Katherine H. Flynn

 

CAHALY v. LAROSA, NO. 14-1651

Decided: August 6, 2015

The Fourth Circuit held that under the content-neutrality framework articulated in Reed v. Town of Gilbert, South Carolina’s anti-robocall statute was a content-based regulation that did not survive strict scrutiny, and was therefore deemed unconstitutional. The Court affirmed the district court’s judgment, except for its compelled speech claim, which was vacated and remanded with instructions to dismiss.

The South Carolina General Assembly, in 1991, enacted a “robocall” statute, which regulates automated telephone calls that deliver recorded messages. The statute has different restrictions for robocalls, depending on whether they are (1) unsolicited and (2) made for consumer, political, or other purposes. All qualifying robocalls are banned except for three exceptions, which are based on the express or implied consent of the party called.

On September 23, 2010, Plaintiff Robert Cahaly (“Cahaly”), a self-described Republican political consultant, allegedly placed robocalls in six South Carolina house legislative districts. The calls consisted of a one-question survey that did not advocate for a particular candidate. The day before Cahaly made the calls, the Attorney General issued a letter stating that as long as the calls do not advocate a particular candidate, they may be made, even if they are of a political nature. However, Cahaly’s calls were still reported and in November 1, 2010, a state magistrate judge issued six warrants for Cahaly’s arrest. The warrants were dismissed eighteen months later.

The Fourth Circuit found that, according to Reed, South Carolina’s anti-robocall statute is content-based because it makes content distinctions on its face. Therefore, per Reed, the government’s regulatory purpose need not be considered. Content-based regulation is subject to strict scrutiny, where the government must prove “that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” The Court held that the government failed to prove that the anti-robocall statute is narrowly tailored to serve the government interest of protecting residential privacy. As a result, the Court affirmed the district court’s judgment declaring the statute unconstitutional. The Court also agreed with the district court’s ruling that Cahaly lacked standing for his vagueness challenge because the Court found that the statute squarely covered Cahaly’s calls.

The Court, however, did not agree with the district court’s ruling on Cahaly’s compelled-speech challenge. The Court found that Cahaly lacked standing to challenge the disclosure provision as compelled speech because Cahaly did not suffer an “injury in fact,” under the standing requirement of Article III.

Finally, the Court found that there was probable cause for Cahaly’s arrest. A law enforcement officer who obtains an arrest warrant only loses the protection of qualified immunity “where the warrant application is so lacking in indicia of probable cause as to render official believe in its existence unreasonable.” Even if a police officers determination was wrong as a matter of law, the officer may still have probable cause to arrest based on “reasonable mistakes of law.” Consequently, the Court held that the police officers had probable cause to arrest Cahaly.

Full Opinion

Meredith Weisler

 

DOE v. ROSA, NO. 14-1748

Decided: July 28, 2015

The Fourth Circuit affirmed the judgment of the district court and held that Defendant, under 42 U.S.C. § 1983, did not have an affirmative duty to protect the Plaintiffs from a pre-existing danger under the Due Process Clause of the Fourteenth Amendment.

Plaintiffs are John Doe 2 and his brother, John Doe 3, who were sexually abused by Louis “Skip” ReVille from 2005 to 2007. ReVille began abusing Doe 2 when ReVille volunteered to coach Doe 2’s basketball team. ReVille later became a part-time caregiver to Doe 2 and Doe 3, and began molesting Doe 3.  During this time, the Plaintiffs attended the Citadel Summer Camp, where ReVille, a former Citadel cadet, worked.  Defendant, John Rosa, was the president of The Citadel during this time period. In April 2007, he received a phone call from a father of a former camper alleging that ReVille had molested his son in 2002. Rosa did not report the complaint to law enforcement and, the Plaintiffs contended, attempted to conceal the allegations. The Plaintiffs argued that Defendant’s actions allowed ReVille to continue the abuse of Plaintiffs throughout the summer of 2007.

Plaintiffs argued that Defendant was liable under §1983 based on a state-created danger theory. To prevail under a state-created danger theory, a plaintiff must show that the state actor created or increased the risk of private danger, and did so directly through affirmative acts, not merely through inaction or omission. The Court disagreed with Plaintiffs and found that their claim failed because they could not demonstrate that Defendant created or substantially enhanced the danger. The Court concluded that ReVille began abusing the Plaintiffs two years before Defendant could have been aware of the complaint. Furthermore, the Court found that Defendant did not create or increase the risk of the Plaintiffs abuse. Allowing continued exposure to an existing danger by failing to intervene is not equivalent to creating or increasing the risk of that danger. Therefore, the Court held that the state-created danger doctrine did not impose liability on Defendant for ReVille’s ongoing abuse of the Plaintiff.

Accordingly, the Court affirmed the district court’s order.  

Full Opinion

Meredith Weisler

 

U.S. v. WATSON, NO. 14-4388

Decided: July 17, 2015

The Fourth Circuit reversed the order of the district court and found that the government did not meet its burden of proving that involuntary medications were substantially likely to restore Defendant’s competency to stand trial.

In 2012, Defendant, John Watson (“Watson”), was arrested for firing a handgun at a Coast Guard helicopter. No one was injured or killed in the incident. After Watson’s arrest he was interviewed by a psychologists, who determined that he was “unable to participate meaningfully and effectively in his defense,” as a result of his many delusions. Watson was transferred to the Federal Medical Center (“FMC”) in Butner, North Carolina for further mental health evaluation. Six months later, the government submitted to the court a report by FMC psychiatrist, which recommended that Watson be forcibly medicated in order to render him competent to stand trial.

In 2014, the magistrate judge recommended that Watson be forcibly medicated in order to restore his competency. The district court then issued a brief order adopting the recommendations and findings of the magistrate judge and granting the government’s motion for involuntary medication.

Given the critical liberty interests at stake, the Court required the government to meet a heavy burden to justify forcible medication. The Court required that the government meet its burden by the “clear and convincing” standard. The Fourth Circuit applied a four-factor test to determine whether the burden had been met. First, the government had to show that important governmental interests are at stake and that special circumstances did not mitigate those interests. Second, the government had to show that involuntary medication significantly furthered the government’s interests, which requires proof that the medication is substantially likely to render the defendant competent to stand trial. Third, the involuntary medication must be necessary to further the government’s interests and less intrusive means must be unlikely to achieve substantially the same results. Finally, the Court must conclude that the administration of drugs is medically appropriate and in the patients best medical interests in light of his condition.

The Fourth Circuit found that the district court did not undertake the searching and individualized assessment of Watson’s likely susceptibility to forcible medication that is required by the four-factor test. The district court took the government at its word when it argued that the requirements of the test had been met, without considering whether the government had produced evidence “relating the proposed treatment plan to the individual defendant’s particular medical condition.”

Accordingly, the Court reversed the district court’s order.  

Full Opinion

Meredith Weisler

 

JEHOVAH v. CLARKE, NO. 13-7529

Decided: July 9, 2015  

The Fourth Circuit held that the dismissal of Jehovah’s Sabbath claims, cell assignment claims, and deliberate indifference claim was inappropriate. Additionally, the Fourth Circuit held that the trial court erred in granting summary judgment to the Appellees regarding Jehovah’s communion wine claim. The district court’s judgment was reversed in its entirety and remanded back to the lower court.

Jehovah is an inmate who was incarcerated at Sussex I Prison (SIP) in Virginia when he filed this suit. Jehovah alleged in his complaint four separate actions taken by Virginia Department of Corrections (VDOC) employees that violated his rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA). First, Jehovah claimed that certain prison policies have prevented him from taking communion in the manner required by his religious beliefs. The final VDOC policy did not allow prisoners to consume communion wine. Second, Jehovah claimed that he has not been able to obtain a job that will allow him to observe his Sabbaths. According to Jehovah, there are very few jobs at SIP that allow for prisoners to work and still observe the Sabbaths. Third, Jehovah claims that VDOC has housed him with nonbelievers and anti-Christians, contrary to his beliefs. Fourth, Jehovah alleged that he received several medical ailments that VDOC staff deliberately ignored. Jehovah filed this lawsuit seeking compensatory and injunctive relief for these alleged violations of RLUIPA, the First Amendment, and the Eighth Amendment.

On appeal, Jehovah argues that the district court erred in 1) dismissing his Sabbath, cell assignment, and deliberate indifference claims under § 1915A, and 2) granting Appellees summary judgment on his communion wine claim. RLUIPA requires a stricter protection of prisoners’ free exercise rights than does the First Amendment, applying “strict scrutiny instead of reasonableness.” Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir. 2006). The Fourth Circuit determined the award of summary judgment on his communion wine claim was inappropriate because the district court did not allow Jehovah an opportunity to brief the court regarding whether the wine ban substantially burdened his religious exercise and the record was insufficient to support the conclusion that the wine ban was the least restrictive means to address the government’s purported security interest. The court found that a reasonable jury could rule in Jehovah’s favor regarding the communion wine issue.

The district court dismissed Jehovah’s Sabbath work claims because prisoners do not have a constitutional right to job opportunities while incarcerated. However, Jehovah correctly pointed out that the constitutional right being violated is his right to free exercise of his religious beliefs; the unavailability of prison jobs accommodating his Sabbath schedule is the alleged burden on that right. When stating a RLUIPA claim, Jehovah need only plead facts tending to show a substantial burden on his exercise of sincerely held religious beliefs. 42 U.S.C. § 2000cc-2(b). Here, Jehovah has alleged that his religious practice forbids him from working on the Sabbaths. The Fourth Circuit determined that Jehovah alleged enough facts that support a plausible claim for relief under the RLUIPA and the First Amendment and remanded the claim for further proceedings.

The district court dismissed Jehovah’s housing claims because it determined that Jehovah did not have a right to choose a cellmate based on that person’s religious background. However, again, the Fourth Circuit determined the proper inquiry is to what extent VDOC burdened Jehovah’s right to exercise his religious beliefs by assigning him cellmates who did not share his religious views. Jehovah claimed that he was harassed and burdened on account of his religious beliefs by being housed with these inmates. Additionally, Jehovah claimed that his housing assignments were deliberately done to harass him. Based on Jehovah’s claims, the Fourth Circuit held that Jehovah alleged enough facts that support a plausible claim for relief under the RLUIPA and the First Amendment and remanded the claim for further proceedings regarding his housing assignment.

In order to present a claim of deliberate indifference under the Eighth Amendment, the inmate must show “the deprivation of a basic human need was objectively sufficiently serious” and “subjectively the officials acted with a sufficiently culpable state of mind.” De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003). Jehovah alleged constant chest pain, chronic headaches, and diminished hearing and eyesight. Additionally, Jehovah claimed he has been diagnosed with pulmonary hypertension, a serious and sometimes fatal condition. Jehovah received some treatment; however, his doctors ignored and failed to treat many of his symptoms. Sufficient factual allegations supporting a plausible claim for relief was presented by Jehovah and the Fourth Circuit held that the district court erred in dismissing Jehovah’s Eighth Amendment claim.

Full Opinion

Austin T. Reed

 

HUNTER v. TOWN OF MOCKSVILLE, NO. 14-1081

Decided: June 15, 2015

The Fourth Circuit denied Defendants’ appeal from the district court’s denial of summary judgment, holding that the Plaintiff officers spoke out on corruption as citizens and were therefore protected by the First Amendment.

This appeal arises from the firing of three police officers who raised concerns about mismanagement by the police chief.  Initially, the three officers raised their concerns with the town manager.  When the situation did not improve and the Plaintiffs began to perceive retaliation, they anonymously took their complaints outside of the city.  The Plaintiffs used a disposable phone to call the state Attorney General’s office and the Governor’s office.  A representative from the Governor’s office referred the case to the State Bureau of Investigation (“SBI”).  The police chief ultimately discovered what the Plaintiffs had done and fired all of them.  The Plaintiffs filed suit in April 2012, alleging, among other things, that their First Amendment rights had been violated.  The Defendants moved for summary judgment under 42 U.S.C. § 1983, which was ultimately dismissed.  The Defendants appealed the denial of summary judgment.  

To successfully assert a § 1983 claim, a Defendant must show that either no Constitutional right was violated, or that the violated right was not clearly established.  Defendants first contended that the district court had erred when it found that the Plaintiffs had acted as citizens instead of employees.  The Fourth Circuit engaged in the requisite “practical” inquiry into whether the Plaintiffs’ speech had occurred in the normal course of the employees’ daily professional activities.  Ultimately, the Court held that calling the Governor’s office from a disposable phone was not part of the ordinary business of police officers and that the district court had rightly refused summary judgment on this basis.  

Defendants next argued that the Plaintiffs’ speech had not been a cause of their termination.  The Fourth Circuit ruled that this argument was not an issue for appellate review because a material issue of fact existed.   Defendants’ last argument on appeal was that if they had violated at Constitutional right, that the right was not clearly established at the time.  The Court rejected this argument, stating that a citizen’s speech about serious misconduct in police conduct was a clearly established right.  

Plaintiffs also appealed from the district court’s dismissal of their claims against the town of Mocksville.  The disposal of only the claims against the town of Mocksville did not constitute a final judgment, and appellate courts only have jurisdiction over final decisions.  Therefore, the Fourth Circuit held that this issue was not properly before it.

Full Opinion

William H. Yarborough

EVERETT v. PITT CNTY. BD. OF EDUC., NO. 13-2312

Decided: June 3, 2015

The Fourth Circuit affirmed a North Carolina district court’s grant of a motion requesting that the court declare that Defendant’s school district is unitary in compliance with desegregation orders. This case involved two desegregation orders entered in 1970 by a North Carolina district court for Greenville City and Pitt County Board of Education who were operating racially segregated schools. Following the school districts’ initial compliance with the orders, the cases were administratively closed and lay dormant for over thirty-five years until concerns about the School Districts’ consideration of race when devising student assignment plans framed the present dispute. In 2011, Plaintiffs moved to enjoin the implementation of the Board’s 2011-12 student assignment plan, arguing that it failed to move the school district toward unitary status. Defendants filed a motion requesting that the district court declare the school district unitary, which was granted by the district court and rendered Plaintiff’s injunction against the plan moot.

First, the Court addressed whether, procedurally, the district court could have determined unitary status before deciding whether, for the purposes of an injunction, the student assignment plan was a sufficient method for achieving unitary status. Plaintiffs contented that “the district court violated the law of the case by considering the unitary status question before first deciding whether the 2011-12 student assignment plan moved the school district toward that status. According the Fourth Circuit, the burden of proving discriminatory intent shifts to the Plaintiffs when the district court determines that the Board first achieved unitary statuts. Thus, a district court “may assess unitary status before addressing the request for relief that brought the plaintiff before the court in the first place.” Moreover, the district court’s decision to assess unitary status “comports with its obligation to ‘restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.’”

Then, the Court determined whether the district court’s finding that the school district is unitary was of merit. The standard of appellate review on this issue is clear error. The test for determining whether a school district is unitary is a two-prong test: (1) whether the school district “complied in good faith with the desegregation decree since it was entered”; and, (2) whether the district court is satisfied that “the vestiges of past discrimination have been eliminated to the extent practicable.” Weighing the facts presented by both parties against the test provided, the Court found that the school district was unitary.

The dissent disagreed concerning the present unitary nature of the school district. The dissent cited statistical examples that the dissenting judges contended showed a racial imbalance that lingers within the school districts.

Full Opinion

Katie Ramseur

WRIGHT v. STATE, NO. 13-2312

Decided: May 27, 2015

The Fourth Circuit held that the thirteen citizens of Wake County, North Carolina (“Plaintiffs”) stated a claim upon which relief could be granted when they sued the State of North Carolina and the Wake County Board of Elections to challenge a state law redrawing the Wake County Board of Education electoral districts. In their complaint, Plaintiffs alleged that the new redistricting plan resulted in a Board of Education with a Democratic majority. This result caused the Republican-controlled General Assembly to pass a new Session Law that “made numerous changes to the Wake County Board of Education’s methods of election.” The new law changed the Board of Education’s make-up from nine single-member districts to seven single-member districts and created “super districts” that consisted of outer, rural areas of the county. Plaintiffs alleged that the districts created by the new law were “visually and mathematically” ineffective, and therefore unjustifiable. Principally, Plaintiffs claimed the Session Law “violates the United States Constitution’s one person, one vote guarantees and the North Carolina Constitution’s equal protection clause.” Plaintiffs also sought leave to amend the complaint to add Governor Patrick McCrory, Senate President Pro Tem Phillip Berger, and General Assembly Speaker Thom Tillis in their official capacities.

First, the Fourth Circuit considered whether Tillis and Berger are proper parties to this suit, to which it answered no. The Eleventh Amendment provides protection from suit for certain state officials. The Court recognized that a special relationship must exist between the state official being sued and the challenged action for the official to be amenable to suit. The Court found that neither Tillis nor Berger had “a special duty to enforce the challenged Session Law, and thus neither is amendable to suit.” Also, the Court found, there are other ways for future claimants to “force[] a constitutionally valid election, should [future claimants] succeed in enjoining the Session Law.”

The Fourth Circuit’s finding that the district court erred when it dismissed Plaintiffs complaint for failure to state a claim was framed by the Fourteenth Amendment’s equal protection clause that guarantees that “[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” To establish a claim, Plaintiffs were required to show a “taint of arbitrariness or discrimination” in the apportionment process. According to the Court, Plaintiffs accomplished such by complaining that “the challenged districts discriminated between urban and rural voters, overpopulating, without justification, certain districts, causing the vote of Plaintiffs living in those overpopulated districts to be weighed less than votes of citizens in districts that are unjustifiably under-populated.” Also, Plaintiffs contended that the challenged redistricting was intended “to disfavor incumbents who are registered Democrats and support progressive education policies.” The Fourth Circuit determined that the facts alleged in Plaintiff’s complaint were sufficient when “viewed through he forgiving lens mandated at the motion-to-dismiss stage.” The Court also disagreed with the district court—which claimed that political gerrymandering claims are nonjusticiable—because the claims alleged by Plaintiffs presented an equal protection claim, not merely a gerrymandering claim. Accordingly, the Fourth Circuit held that Plaintiffs allegations were sufficient to state a claim that the Session Law violates the one person, one vote principle.

The dissent believed that the complaint failed to state a claim upon which relief can be granted because the Plaintiffs were not able to provide evidence that the apportionment process had a taint of arbitrariness or discrimination. The dissent expressed concern that the Plaintiffs may have preferred another redistricting plan, however, that fact does not make the current plan unconstitutional.

Full Opinion

Katie Ramseur

 

BLAKE v. ROSS, NO. 13-7279

Decided: May 21, 2015

The Fourth Circuit held that Blake reasonably believed that he had exhausted his administrative remedies as required under the Prison Litigation Reform Act (PLRA), and reversed and remanded for further proceedings.

This appeal stemmed from the district court’s dismissal of Blake’s § 1983 claim against Ross in favor of Ross’s summary judgment. Ross was originally a co-defendant in an action that Blake brought against Madigan, a prison guard who severely beat him until he sustained nerve damage. After the incident, Blake filed a report with the Internal Investigative Unit of the Maryland Department of Public Safety, who conducted an investigation and issued a report confirming the events of Blake’s beating, and the report did not put him at fault for the incident. Following the report, Blake filed pro se claims against Madigan and Ross, among others, and Ross moved to dismiss or for summary judgment on the issues. The district court denied summary judgment to Ross, and appointed counsel to Blake to proceed. Almost two years after Ross filed an answer to Blake’s complaint, Ross attempted to amend his answer, which Blake’s counsel agreed to do on the condition that Blake be allowed to file an amended complaint. When Ross filed his amended answer, he asserted a new defense, that Blake had not exhausted all of his remedies, and the district court granted the motion to amend without giving Blake the opportunity to object. Blake moved two different times to strike the amended answer, while Ross moved for summary judgement; the district court denied Blake and granted Ross’s summary judgment. After succeeding in his trial against Madigan, Blake appealed the denial of his claim against Ross, asserting that Ross waived his exhaustion defense because he failed to include it in his initial answer or motion, and that even if Ross had not waived his defense, Blake had exhausted all of his administrative remedies. The Fourth Circuit held that Ross’s exhaustion defense was without merit without reaching the issue of whether or not he had waived that defense.

The court first established that they would be reviewing the decision de novo, and, as it was summary judgment, viewing the evidence in the light most favorable to Blake, the nonmovant. The court then examined the PLRA’s requirements for exhausting remedies, noting that although “true exhaustion” is required, “an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” The court further noted the main source of conflict in this case: the intersection between the Administrative Remedy Procedure, (ARP), and the IIU, and examined the procedures required by both of those administrative bodies. Although Blake did not go through the ARP process, he contended that since he complied with the IIU investigation, he was prevented from the ARP process through no fault of his own. To decide this matter, the court first addressed the question of what legal standard Ross had to meet in order to show that Blake did not exhaust his remedies. After considering the policy reasons for the exhaustion requirement, the court noted that in certain cases, exceptions to the exhaustion requirement could be necessary, and adopted the two-part test from the Second Circuit’s decisions in Marias and Giano. To satisfy the two-prong test, the claimant must have procedurally believed he had exhausted his remedies because the administrative system was confusing, and substantively he must have exhausted his remedies by permitting authorities enough time to conduct an internal investigation. In applying the test, the court found that Blake very clearly satisfied the substantive prong, as the IIU’s one-year investigation into the incident provided them with ample time to deal with the situation. The court then looked to see if the process was confusing, examining the Handbook, Maryland Code of Regulations, and Maryland Department of Corrections Directives. The Fourth Circuit concluded that these three manuals were ambiguous, and Blake’s interpretation of their “murky process” was reasonable in light of the ambiguities. The court thus held that the district court erred when it granted Ross’s summary judgment motion on the basis of the exhaustion defense, and reversed and remanded for further proceedings.

Full Opinion

Jennie Rischbieter

 

USSERY v. MANSFIELD, NO. 14-7096

Decided: May 19, 2015

The Fourth Circuit affirmed a North Carolina district court’s denial of summary judgment to correctional officers implicated in a Section 1983 excessive force claim.

The 1983 claim arose from Ussery’s forcible extraction from his cell. According to Ussery, in the several days leading up to the extraction, officers had searched his cell repeatedly and never found any weapon or other contraband. On the date of the extraction, when told to exit his cell, Ussery refused to do so for fear that his cell would be “tossed.” Upon his refusal, Sergeant Mansfield pepper sprayed Ussery, but Ussery continued to refuse to exit. The parties agree about the extraction, but have significantly different versions of the event. While they all agree Sergeant Mansfield assembled a team of five correctional officers for the extraction and one to videotape the extraction per prison procedure, then telling the team that Ussery had a weapon and threatened to harm anyone who entered, Ussery denies ever possessing a weapon or making a threat. Furthermore, the team found no weapons. Ussery contends when his cell was unlocked, the officers restrained him on the floor and repeatedly beat, punched, and kicked him. While the video is consistent with Ussery’s account in some respects, Sergeant Mansfield stood in front of the camera for a significant period of time, blocking the view of the extraction. Later, Ussery had to go to a hospital for emergency treatment of his wounds and lacerations, which he contends medical records indicated caused an increase in bi-lateral hearing loss, neck pain, loss of vision in the right eye, chronic swelling and loss of feeling in his hands and knees, and recurring migraines. As a result, the North Carolina Department of Corrections launched an investigation into whether the officers employed excessive force. The report was inconclusive but stated the behavior of the officers appeared too aggressive for the situation. The officers denied punching and kicking Ussery and relied on a report from a prison doctor who had not personally examined Ussery that stated Ussery’s injuries were all minor and had since healed.

Given the timing of the incident, the applicable precedent (prior to the Wilkins standard adopted in 2010) required that an inmate must show more than de minimis injuries or that the defendants’ use of force be repugnant to mankind’s conscience. The trial court found there was insufficient evidence in the record regarding the extent of injuries and noted that the repugnant circumstances were a question of fact for the jury, thereby precluding a granting of summary judgment. The Fourth Circuit disagreed with the officers’ account that Ussery’s injuries were de minimis and pointed to the Department of Corrections investigation into the incident to establish that the injuries were likely severe if they warranted an investigation into excessive force. The court also compared Ussery’s injuries to comparable injuries that were not held to be de minimis.

Full Opinion

Kayla M. Porter

 

RAUB v. CAMPBELL, NO. 14-1277

Decided: April 29, 2015

The Fourth Circuit affirmed the district court’s decision to grant the Defendant summary judgment on the basis of qualified immunity and to deny Plaintiff’s request for injunctive relief.

This appeal stemmed from the district court’s granting of summary judgment to a mental health evaluator, Michael Campbell, for petitioning the state for a temporary detention order for the Plaintiff, Brandon Raub after Raub composed a series of ominous Facebook posts, which drew the attention of his former fellow marines.  Local officers, acting on Campbell’s recommendation, detained Raub for evaluation, and Raub was subsequently questioned at his home.  Thereafter, authorities placed Raub in custody and transported him to a local jail where Campbell asked Raub about his recent Facebook posts and radical beliefs.  After interviewing Raub, Campbell petitioned for and received a temporary detention order from a magistrate judge.  Raub was then taken to a hospital and then to treatment.  Raub subsequently filed suit under 42 U.S.C. § 1983, seeking damages and injunctive relief against Campbell for violating his Fourth and First Amendment rights.  The district court granted summary judgment to Campbell and denied Raub’s request for injunctive relief.  Thereafter, Raub appealed, arguing that Campbell violated his Fourth and First Amendment rights.  Additionally, Raub claimed that, even if his constitutional claims failed, he was still entitled to injunctive relief.

The court determined that summary judgment on Raub’s Fourth Amendment argument was proper because Campbell’s conduct was not proscribed by clearly established law and because his actions were reasonable under prevailing legal standards.  Moreover, the court determined that Raub failed to establish a viable First Amendment claim because Campbell’s decision to recommend Raub’s detention was not based solely on Raub’s statements, but it was also based on Raub’s demeanor, emails, the nature of his posts, and other facts that were indicative of Raub’s mental disturbance.  Lastly, the court rejected Raub’s claim for injunctive relief because Raub’s claim that he would be subject to unreasonable seizures and retaliation in the future were merely speculative.  Thus, the court affirmed the district court’s judgment.

Full Opinion

Charles Buist

WEST v. MURPHY, NO. 13-2014

Decided: November 14, 2014

The Fourth Circuit held that the appellees were entitled to qualified immunity, and affirmed the district court’s grant of appellees’ motions for summary judgment.

The named appellants, who went through the booking process at the Baltimore Central Booking and Intake Center (“Central Booking”), represent a certified class of individuals arrested between May 12, 2002 and April 30, 2008 “(a) on charges [or in cases] not involving weapons, drugs, or felony violence, and (b) strip searched (c) prior to or without presentment before a court commissioner or other judicial officer.” Appellants brought suit against two former wardens of Central Booking challenging the constitutionality of the strip searches, which were conducted in a room with other arrestees. Appellees filed a motion for summary judgment on the basis that they were entitled to qualified immunity. The motion was initially denied, but an intervening decision by the U.S. Supreme Court caused the district court to reverse course its summary judgment decision. In Florence v. Board of Chosen Freeholders of County of Burlington, 132 S. Ct 1510 (2012), the U.S. Supreme Court held that all detainees admitted to the general population may be subjected to “a close visual inspection while undressed.” The district court determined that this decision overruled some aspects of Fourth Circuit precedent that it had relied on in denying the Appellees’ motion for summary judgment.

Under the doctrine of qualified immunity, a government official is immune from suit if: (1) the facts are sufficient to show a violation of a constitutional right, and (2) the right at issue was clearly established at the time of the alleged misconduct. The Fourth Circuit noted that a right is clearly established if a reasonable official would have known that his conduct violated that right. Appellees contend, that Florence demonstrated that the law was not clearly established. The Court, however, emphasized that the relevant inquiry is whether the law was clearly established at the time of the search. This timing aspect is “tethered to the need for notice.” Thus, the Florence decision that was issued after the alleged violation does not affect whether the law was clearly established at the time of the conduct, unless the Florence decision itself established whether the law was clearly established at the time of the challenged official action. Here, the Court noted that Florence did not demonstrate that the law on jail strip searches either was or was not clearly established at the time the alleged searches were conducted.

The Court then turned to three other cases, relied on by Appellants, where the Court had previously found strip searches unconstitutional. The Court, however, concluded that those cases did not clearly establish that the Appellees’ alleged conduct was unlawful. Unlike the Appellees’ alleged conduct, which was conducted in a search room, the conduct at issue in those cases was in a much more public setting and more intrusive. Furthermore, there were no security reasons strong enough to justify the nature of the searches in those cases. Because there was no precedent that would provide fair notice, the Court determined that the law on strip searches in jails was undeveloped, and that “the immunity defense [did] not permit [it] to tax correction officers with clairvoyance.” Accordingly, the Court held that the officers were entitled to qualified immunity.

Judge Wynn concurred in the majority’s opinion, but wrote a separate concurrence to emphasize the importance of addressing the constitutionality of strip-searching detainees out of the general population.

Full Opinion

Abigail Forrister

U.S. v. CATONE, JR., NO. 13-4663

Decided: October 15, 2014

The Fourth Circuit upheld Defendant’s (“Catone”) conviction for making a false statement in connection with his receipt of federal worker’s compensation benefits, but vacated his sentence and the restitution order, and remanded for further proceedings.

In 2006, Catone, a former United States Postal Service employee, began receiving payments under the Federal Employees Compensation Act based on injuries arising from extended periods of driving. To verify his continued eligibility for benefits, Catone was required to submit a form each year, which disclosed whether he had been employed, or earned any compensation, during the past fifteen months. From March 2007 to September 2009, Catone reported that he was unemployed for all periods and had not earned any compensation. Catone, however, had received $635 for custodial services. As a result, Catone was convicted by a jury for violating 18 U.S.C. § 1920. The district court sentenced Catone to a sixteen-month term of imprisonment, and imposed restitution in the amount of $106,411.83.

On appeal, Catone challenged his conviction, imprisonment, and the imposed restitution amount. First, Catone argued that the Government should have produced a form that he had submitted to the Department of Labor in March 2007, which disclosed the $ 635 compensation. Catone claimed that the Government’s failure to produce the form as part of discovery constituted a Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963). Reviewing the claim for plain error, the Court rejected Catone’s argument because the material was known to Catone; the form was publicly available and could have been uncovered by Catone; and, because Catone was unable to show that had the form been disclosed, it would have likely changed the verdict.

The Court, however, citing 18 U.S.C. § 1920, did conclude that the imposition of Catone’s sixteenth months’ felony sentence violated his Sixth Amendment right to trial by jury. Section 1920 establishes two levels of sentencing depending on the amount of benefits “falsely obtained.” If the amount of loss does not exceed $1,000, the defendant may be convicted of a misdemeanor, but if the amount received is more than $1,000, the defendant may be convicted of a felony. Thus, the Court adopted the Eleventh Circuit’s interpretation of § 1920, and held that the amount of benefits falsely obtained constitutes a substantive element for a felony offense, which must be submitted to the jury and proven beyond a reasonable doubt. The Court further rejected the Government’s claim that the error was harmless. Rather, the Court concluded that the jury made no finding that the amount of benefits obtained exceeded $1,000, which would support a felony sentence. Accordingly, the Court vacated Catone’s felony conviction, and instructed the district court to impose a misdemeanor sentence on remand.

Finally, the Court held that the district court erred in calculating the loss amount for purposes of sentencing enhancement and restitution. The district court failed to use the correct formula, as established in United States v. Dawkins, 202 F.3d 711, 715 (4th Cir. 2000), when calculating the loss amount. Thus, the Court vacated the restitution order and remanded to the district court for calculation under the correct formula.

Full Opinion

Abigail Forrister

GESTAMP SOUTH CAROLINA, L.L.C. v. NLRB, NO. 11-2362

Decided: October 8, 2014

The Fourth Circuit held that the “recess session” appointment of a National Labor Relations Board (“NLRB”) member was valid under the U.S. Constitution. The Court also held that the General Counsel of the NLRB failed to establish a prima facie case that two Gestamp South Carolina, LLC (“Gestamp”) employees had been discharged in violation of the National Labor Relations Act (“NLRA”). Finally, the Court held that substantial evidence supported an Administrative Law Judge’s (“ALJ”) finding that a Gestamp supervisor had made a threat to one of the discharged employees for attempting to unionize.

David Kingsmore (“Kingsmore”) worked as a “quality inspector” and Reggie Alexander (“Alexander”) worked as a “supply coordinator” for Gestamp until both were fired in late February of 2010. Prior to being fired, Kingsmore had contacted United Steelworkers (“the union”) about unionizing Gestamp’s hourly employees. Alexander eventually joined Kingsmore on a small committee of Gestamp employees to explore unionization. Supervisors for the two employees were aware of the committee, and Kingsmore’s supervisor warned him that he would be “gone” for attempting to unionize. Shortly thereafter, Alexander was fired for falsifying one day on his timesheet. He failed to correct a discrepancy between when the company system automatically signed him in, and the time he actually arrived—a period of thirty-eight minutes. Meanwhile, Kingsmore had been denied access to a nearby BMW facility, which also happened to be his former employer, while making a trip to the facility on behalf of Gestamp. This incident prompted an inquiry in to whether Kingsmore had been truthful when he told Gestamp that his employment at BMW had ended on amicable terms. After Kingsmore was unable to explain why he was banned from the BMW facility, he was fired from Gestamp for “falsification of work history” and failure to present documentation from his previous employer.

First, the Court reasoned that the recess appointment of a NLRB board member was constitutional because it occurred during a two-week Senate recess. The Recess Appointment Clause gives the President power to fill vacancies during a Senate recess. Although the Supreme Court had previously held that a recess of less than ten days was presumptively not long enough, a two-week recess, according to the Court, was adequately long to fall within the Recess Clause.

Next, the Court reasoned that neither Kingsmore nor Alexander had been discharged from Gestamp in violation of the NLRA because neither was able to carry his burden of proving that the Gestamp employee who fired both of them did so with knowledge of their union activity. The Court rejected Kingsmore and Alexander’s assertion that the requisite knowledge of their union activity could be automatically imputed to that Gestamp employee merely because Kingsmore and Alexander’s supervisors were aware of their union activity.

Finally, the Court upheld the ALJ’s ruling that Kingsmore had been threatened for his union activities because there was “substantial evidence” presented to the ALJ that he was threatened, and that a qualified “supervisor” (as defined in the NLRA) made the threat. Gestamp appealed this ruling because the ALJ’s decision was based largely on Kingsmore’s testimony, and the ALJ had already determined that his testimony was “not fully reliable[.]” Further, the ALJ had determined that a Gestamp employee who testified on this issue was credible. However, that Gestamp employee admitted that he did not remember certain facts. Ultimately, the Court found that the ALJ’s decision as a whole was not so inconsistent with the testimony as to warrant reversal.

Full Opinion

James Bull Sterling

DUKE v. NORTH CAROLINA, NO. 14-1845

Decided: October 1, 2014

The Fourth Circuit reversed the district court’s denial of a preliminary injunction on House Bill 589’s (“H.B. 589”) elimination of same-day registration and prohibition on counting out-of-precinct ballots, and remanded with instructions to the district court to enter a preliminary injunction. However, the Fourth Circuit affirmed the district court’s denial of Appellant’s request for a preliminary injunction regarding other provisions of H.B. 589.

The Supreme Court lifted certain Voting Rights Act (“VRA”) restrictions on June 25, 2013, that had previously prevented jurisdictions from passing laws that denied minorities equal access to voting. The next day, North Carolina started pursuing broad voting reform by introducing House Bill 589 which—among other effects—imposed rigorous voter identification requirements; cut a week off of early voting; prohibited local election boards from keeping the polls open on the final Saturday afternoon before elections; eliminated same-day voter registration; and barred votes cast in the wrong precinct from being counted at all. Appellants, and the U.S. Government, sued North Carolina in response, alleging that H.B. 589 violates the Equal Protection provisions of the U.S. Constitution, as well as the VRA. Appellants requested that the district court grant a preliminary injunction to prevent H.B. 589 from taking effect, but the district court refused. Appellants then timely filed an appeal.

The Fourth Circuit stated that Appellants failed to establish at least one of the elements necessary to win a preliminary injunction with respect to the following provisions of H.B. 589: (i) the reduction of early-voting days; (ii) the expansion of allowable voter challengers; (iii) the elimination of the discretion of county boards of elections to keep the polls open an additional hour on Election Day in “Extraordinary circumstances”; (iv) the elimination of pre-registration of sixteen and seventeen-year-olds who will not be eighteen-years-old by the next general election; and (v) the soft roll-out of voter identification requirements that will go into effect in 2016. Thus, the Fourth Circuit declined Appellants’ request for a preliminary injunction as to those provisions of H.B 589. However, the Fourth Circuit also stated that it was not suggesting that Appellants could not prove and eventually succeed on their challenges to all of these H.B. 589 provision at trial. The Fourth Circuit did grant Appellants’ request for a preliminary injunction with respect to the H.B. 589 provision affecting same-day registration and out-of-precinct voting because Appellants demonstrated through substantial evidence that they were likely to succeed on their Section 2 claims under the VRA; that Appellants’ were likely to suffer irreparable harm because minority voters in North Carolina would be disproportionately, and adversely, affected with no redress; that the balance of hardships showed that old systems could be resurrected to counteract the little time that North Carolina would have to implement the relief granted by the Fourth Circuit; and that the injunction was in the public interest because it stripped away the ability of qualified voters to participate in elections.

Full Opinion

Alysja S. Garansi

DANSER v. STANSBERRY, NO. 13-1828

Decided: July 3, 2014

The Fourth Circuit held that the district court erred in denying the defendants’, employees at a federal detention center, motion for summary judgment based on qualified immunity.

After he was assaulted by another inmate in the Butner, North Carolina Federal Correctional Institute, Plaintiff, David Danser, alleged that Theron Boyd, a correctional officer, Lieutenant Bobby Roy, Boyd’s immediate supervisor, and Patricia Stansberry, the prison warden, violated Danser’s Eighth Amendment right to be free from cruel and unusual punishment. Specifically, Danser alleged that the defendants showed deliberate indifference to his safety. Defendant Boyd’s job duties included, inter alia, grouping inmates in the recreation cages for outdoor time and supervising the recreation area. Boyd assigned Danser, who was serving a sentence for sexual abuse and exploitation of a minor, and possession of child pornography, and three other inmates, including a member of a violent prison gang, to the same recreation cage. In violation of his duties, Boyd left the recreation area for several minutes. While Boyd was gone, the gang member assaulted Danser, and during the assault commented about Danser’s sexual abuse of children. Danser suffered “a ruptured spleen, a punctured lung, some broken ribs, and numerous bruises and abrasions.” The defendants filed a motion for summary judgment on the basis of qualified immunity, and the district court denied the motion.

In reviewing the district court’s decision to reject the defendants’ qualified immunity claim, the Court applied the two-step Saucier test. The Saucier test first requires that the reviewing court “decide whether the undisputed facts show that the government official’s actions violated the plaintiff’s constitutional rights.” Saucier v. Katz, 533 U.S. 194, 201 (2001). If the first step is satisfied, then the court “must determine whether the right at issue was ‘clearly established’ at the time of the events in question.” Id. To prove the deprivation of a constitutional right a prisoner must show (1) a serious deprivation in the form of a “serious or significant physical or emotional injury,” Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 723 (4th Cir. 2010), and (2) that the prison official allegedly responsible for the deprivation had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Here Danser suffered serious physical injuries, thus the Court found the first element was satisfied. Specific to the claim against Boyd, the Court reasoned that Boyd may have been negligent when he left the inmates unsupervised, but that Danser failed to provide any evidence to suggest that Boyd acted out of deliberate indifference. With respect to the claims against Stansberry and Roy, the Court concluded that the district court’s conclusions were erroneous for two reasons. First, government officials cannot be held liable under a theory of respondeat superior. Second, the record revealed no evidence that the prison had a policy or practice that failed to provide adequate protection for sex offenders. Because Danser failed to prove the first step of the Saucier test, the Court concluded that the district court erred in denying the defendants’ summary judgment motion on the basis of qualified immunity without reaching the second step of the Saucier test.

Full Opinion

Amanda K. Reasoner

AMUER v. GATES, NO. 13-2011

Decided: May 13, 2014

The Fourth Circuit held that the U.S. Supreme Court’s decision in Boumediene v. Bush, 553 U.S. 723 (2008), did not strike down 28 U.S.C. § 2241(e)(2), and that § 2241(e)(2) was severable from § 2241(e)(1), which was struck down in Boumediene.

Amuer was detained as an enemy combatant at Guantanamo Bay before being released to his native country after an administrative review board determined that he was no longer a threat. Amuer sought compensatory damages against U.S. officials involved in his detention under the Alien Tort Claims Act, 28 U.S.C. § 1350; the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-bb-4; and the United States Constitution for alleged abuses during his detention by the United States. The district court dismissed the case for lack of subject matter jurisdiction under the Military Commissions Act of 2006 (“MCA”), 28 U.S.C. § 2241(e)(2).

With the exception of habeas corpus petitions, § 2241(e)(2) of the MCA strips all courts of jurisdiction to hear any claims by formerly detained enemy combatants on the conditions of the enemy combatant’s detention by the United States. After determining that Amuer’s claims fell within the plain language of the MCA statute, the Fourth Circuit considered the constitutionality of § 2241(e)(2) after Boumediene. In Boumediene, the U.S. Supreme Court ruled a different section of the MCA unconstitutional because it forbid judicial review over habeas corpus petitions of enemy combatants detained at Guantanamo Bay. 28 U.S.C. § 2241(e)(1). The Fourth Circuit reasoned that Boumediene did not expressly strike down this applicable provision, § 2241(e)(2), because the U.S. Supreme Court only considered § 2241(e)(1). The Court further reasoned that “§ 2241(e)(2) lacks any nexus” to the U.S. Supreme Court’s reasoning in Boumediene because § 2241(e)(2) “does not limit, discuss, relate to, or otherwise touch upon [§ 2241(e)(1)].”

The Court then considered the severability of § 2241(e)(2) from the distinct statutory section considered in Boumediene, and stated that § 2241(e)(2) would be non-severable from § 2241(e)(1) in one of three limited circumstances: (1) the provision is unconstitutional; (2) the provision is incapable of “functioning independently;” or (3) the separate existence of the provision would be inconsistent with “Congress’ basic objectives in enacting the statute.” United States v. Booker, 543 U.S. 220, 258–59 (2005).

Addressing the first circumstance for severability, the Fourth Circuit provided four reasons for the constitutionality of § 2241(e)(2). First, § 2241(e)(2) is constitutional because the Supreme Court has not required judicial review of cases involving only compensatory damages on multiple occasions, even in cases where money damages are the plaintiff’s only means of recovery. Second, Congress did not violate the separation of powers doctrine by dictating how a court must decide an issue of fact, or by binding the Court to a rule that is independently unconstitutional. Third, courts should apply a rational basis standard of review because nationality is not a suspect class that requires a higher standard of review. The Court then determined that § 2241(e)(2) survived rational basis review because it “limit[ed] court interference in our nation’s war on terror[,]” and granted a high level of deference to Congress to distinguish between citizens and non-citizens. The Court further reasoned that Congress may have rationally concluded that courts are ill equipped to deal with matters involving foreign relations, immigration, or military affairs in cases concerning non-citizen combatants. Finally, the Court determined that § 2241(e)(2) was not a bill of attainder under three tests: the “historical” test, contemplating the traditional ways the legislature has chosen to mete out punishment; the “functional” test, regarding the reasons for the bill; and the “motivational” test, considering the legislature’s actual motives. Under these three tests, the Court concluded that this statute was not a bill of attainder because there were: no historical examples of limits on jurisdiction as a punishment; legislative purposes for the statute beyond punishment; and no punitive motivations in the legislative history. Furthermore, the Court observed that the statute did not restrict jurisdiction for any specific or named person or group.

The Court, in deciding whether the provision was capable of functioning independently, held that § 2241(e)(2) did function independently from § 2241(e)(1). The Court noted that the applicable statute in this case, § 2241(e)(2), was still constitutional despite: cross-references the MCA section struck down in Boumediene, § 2241(e)(1); the necessity of § 2241(e)(1) to understand the language of § 2241(e)(2); and the Government’s change in terminology from “enemy combatant” to “unprivileged enemy belligerent.”

The Fourth Circuit also concluded that § 2241(e)(2) was consistent with Congress’ basic objective in enacting the MCA. The Court reasoned that the congressional purpose of § 2241(e)(2) was to limit judicial review of enemy combatants, and, therefore, the expansion of judicial review to habeas corpus petitions in Boumediene did not change Congress’ ability to achieve its objective under § 2241(e)(2). In reviewing the legislative history, the Court found no evidence of Congressional intent that § 2241(e)(2) should be non-severable from § 2241(e)(1). Also, the Court did not consider congressional inaction after Boumediene, or the absence of a severability clause, to be dispositive of congressional intent that § 2241(e)(2) and the statute in Boumediene were non-severable.

Full Opinion

Verona Sheleena Rios

BOSTIC v. SCHAEFER, NO. 14-1167

Decided: July 28, 2014

The Fourth Circuit affirmed the district court and held as unconstitutional Virginia’s statutes and constitutional amendments that prohibit (1) same-sex marriage in Virginia and (2) state recognition of same-sex marriages performed outside of Virginia.

The Appellees, two same-sex couples, each in committed relationships for more than twenty years, challenged the constitutionality of Virginia statutes and constitutional amendments that ban same-sex marriage in the state. Specifically, the Appellees objected to: (1) Virginia Code section 20-4.2, which prohibits marriage between persons of the same-sex and declares as void all same-sex marriages performed outside of Virginia; (2) Virginia Code section 20-4.3, which applies the same-sex ban to civil unions and any other similar arrangements; and (3) the Marshall/Newman Amendment to the Virginia Constitution, which provides that the only valid marriages in Virginia are those between members of the opposite sex. The Appellees averred that the aforementioned laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution.

After determining that the Appellees had standing, the Fourth Circuit addressed the appropriate level of scrutiny for the Appellees’ Fourteenth Amendment claims. The Court noted that the United States Supreme Court has held that marriage is a fundamental right, and that in its seminal right-to-marriage cases, the U.S. Supreme Court defines the right to marriage broadly, instead of as the “the right to marry interracially” or “the right of prison inmates to marry.” See Turner v. Safley, 482 U.S. 78 (1987); Loving v. Virginia, 388 U.S. 1 (1967). Finding that the right to marry was a fundamental right that applied to same-sex couples, the Court declared that the appropriate level of scrutiny is strict scrutiny for laws that impede on same-sex couples’ right to marry. Thus, to justify the laws, the proponents of these laws would need to show that the laws furthered a “compelling state interest” and that the laws were “narrowly drawn to express only those interests.” Cary v. Population Servs. Int’l, 431 U.S. 678, 686 (1977).

The Fourth Circuit rejected each of the five compelling interests that the proponents of these laws claimed, which included: (1) Virginia’s federalism-based interest in defining marriage within the state; (2) the history and tradition of marriage as a relationship between a man and woman; “(3) protecting the institution of marriage; (4) encouraging responsible procreation; and (5) promoting the optimal childrearing environment.”

The Court reasoned that (1) federalism does not “justify denying individuals of their constitutional rights;” (2) neither history nor tradition are compelling interests; (3) same-sex couples seek marriage for the very same hallmarks that the state seeks to protect, including faithfulness, and allowing same-sex couples to marry will likely “strengthen the institution of marriage;” (4) because infertile opposite-sex couples are permitted to marry, prohibiting same-sex couples from marrying “makes little sense;” and (5) in addition to the “dubious proposition that same-sex couples are less capable parents,” there is no congruency between the same-sex marriage prohibition, and the state’s desired outcome of “optimal childrearing;” a prohibition on marriage does not preclude same-sex couples from raising children. Ultimately, the Court noted that “inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” and to do so violates the Fourteenth Amendment.

Full Opinion

Amanda K. Reasoner

MASSEY v. OJANIIT, NO. 13-1460

Decided: July 21, 2014

The Fourth Circuit affirmed the district court’s judgment as to Officers Ojaniit and Esposito, and dismissed the appeal as to Officer Ledford.

The Appellant initiated a civil action against officers of the Charlotte-Mecklenburg Police Department under 42 U.S.C. § 1983 and North Carolina law, after his release from prison in early 2010. The Appellant alleged that the police department fabricated evidence that led to his arrest, convictions, and subsequent incarceration. In support of his claims, Appellant’s relied on two allegedly falsified reports. The officers moved for a Federal Rule of Civil Procedure (F.R.C.P.) 12(c) judgment on the pleadings. The district court granted all three motions, although the magistrate’s report recommended that the Appellant’s claims against Ledford be dismissed, and the motions by Ojaniit and Esposito be denied. The district court stated that the officers were entitled to qualified immunity, and Appellant failed to state a § 1983 claim on which relief could be granted against Ojaniit or Esposito. The Appellant then filed a timely appeal.

The Fourth Circuit stated that the Appellant’s attempt to revive his claim against Officer Ledford failed because he unequivocally stated to the district court that he did not object to the magistrate’s recommendation that Ledford’s F.R.C.P. Rule 12(c) motion be granted. Thus, Appellant’s failure to file an objection to the magistrate’s report waived his right to appeal on that issue. The Court stated that it applied a F.R.C.P. Rule 12(b)(6) standard to determine the district court’s grant of F.R.C.P. Rule 12(c) judgments to Ojaniit and Esposito. The Appellant failed to state a claim on which relief could be granted under § 1983 because the facts alleged did not assert a violation of a constitutional right. The Fourth Circuit stated that fabrication of evidence alone is insufficient to support a claim for a due process violation, and that the Appellant must plead facts that demonstrate that his loss of liberty directly resulted from the fabrication. Further, the Court agreed that there was not a “sufficiently strong [causal nexus]” that led to a conclusion that Esposito’s allegedly fabricated statement and Ojaniit’s fabricated statement were the but-for proximate cause of the Appellant’s convictions, nor were the convictions a foreseeable consequence of the alleged fabrication. The Appellant’s Fourth Amendment claim failed to meet the materiality requirement, in that, even after removing the fabricated evidence, there was still sufficient probable cause to arrest the Appellant. Appellant’s conspiracy claim also failed because he did not state a claim for deprivation of a constitutional right. Additionally, Appellant’s state law claims fell short because he failed to present probable cause and adequately plead the essential elements for his these claims. Thus, the Fourth Circuit affirmed the district court’s judgment as to Officers Ojaniit and Esposito, and dismissed the appeal as to Officer Ledford.

Full Opinion

Alysja S. Garansi

LEFEMINE v. WIDEMAN, NO. 13-1629

Decided: July 11, 2014

In Lefemine v. Wideman, the Fourth Circuit held that the district court erred, and that Appellant was entitled to attorney’s fees he incurred in connection with his civil lawsuit against various Greenwood County Sheriffs’ Office officials.

Appellant and other members of his group, Columbia Christians for Life, staged a demonstration on a public sidewalk in Greenwood County, South Carolina with the purpose of conveying their anti-abortion message. After receiving several complaints about the graphic images displayed, the Sheriff’s Office instructed Appellant to take the signs down, but Appellant refused. The following year, Appellant sent a letter to the Sheriff informing him that the group intended to return to the area and protest in a similar fashion. The letter also stated that the group would pursue legal action if there were any interference with their demonstration. In response, the Sheriff’s Office declared that, faced with the same circumstances, it would respond in the same manner.

Appellant then filed suit alleging First Amendment violations, and seeking a declaratory judgment, a permanent injunction, damages, and attorneys’ fees. Appellant was successful on his First Amendment claim again the officials, but the district court held that Appellant could not recover damages, and refused to award attorneys’ fees. Appellant appealed; the Fourth Circuit affirmed the district court; and, Appellant sought and was granted certiorari by the United States Supreme Court. The Supreme Court remanded the case to the Fourth Circuit, who, in turn, remanded to the district court to award fees unless the court determined by express findings that special circumstances rendered such an award unjust.

Generally, “[p]laintiffs who prevail in suits to vindicate civil rights are entitled to attorney’s fees.” The district court, however, concluded that “special circumstances” existed such that an award of attorney’s fees to Appellant would be unjust. The Fourth Circuit reversed. Relying on the language and purpose of § 1988, the Court emphasized that awarding attorney’s fees to prevailing plaintiffs is particularly important where constitutional rights are to be protected. The Court also noted that the special circumstances exception is a narrow exception.

After summarizing relevant cases, the Court asserted that no precedent supported the district court’s conclusion that qualified immunity constitutes a special circumstance. Rather, the Court stated, “special government immunities that restrict civil rights plaintiffs’ recoveries weigh in favor of-and certainly not against-awarding Section 1988 fees.”

Next, the Court rejected the district court’s conclusion that the absence of a policy or custom of discrimination by the Sheriff’s Office constituted a special circumstance. The district court noted that Appellant failed to show that the Sheriff’s Office had a policy or custom of discrimination, and thus, found that Appellant could not obtain damages from the Sheriff’s Office. Notwithstanding, the Fourth Circuit emphasized that neither it nor the Supreme Court had ever suggested that the inability to bring a viable claim against an entity “somehow blocks otherwise prevailing civil rights plaintiffs from obtaining their attorneys’ fees under Section 1988.”

Finally, the Fourth Circuit concluded that the limited nature of the relief granted to Appellant did not constitute a special circumstance that made a § 1988 fee award unjust. The Court stated that the district court downplayed the relief Appellant received, but that the relief Appellant received was in fact “notably broader than the district court acknowledged.” Accordingly, the Court held that the district court erred in denying Plaintiff attorneys’ fees.

Full Opinion

Abigail Forrister

U.S. v. BROWN, NO. 13-4249

Decided: July 1, 2014

The Fourth Circuit affirmed Brown’s convictions for conspiring to traffic drugs, and for her role in a related murder. The Court concluded that the police did not violate Brown’s Fifth Amendment rights by interviewing her without her attorney present; that the district court did not commit plain error when it left the bench while the jury watched Brown’s taped interview with the police; and that although the district court miscalculated the conversion rate of kilograms to pounds, which enhanced Brown’s sentence, the miscalculation resulted in harmless error.

For many years, Brown ran a drug trafficking operation where she smuggled drugs into the United States from Mexico, and sold them throughout the Northeast. She moved about one ton of marijuana per month, using a portion of the proceeds to invest in real estate in Jamaica. In 2010, Brown was indicted and pled guilty to “bulk cash smuggling” money out of the United States. While in jail, she elected to conduct two interviews with the police to discuss her role in the murder of Michael Knight. Brown’s attorney was not present for either interview, but each time she waived her Miranda Rights prior to speaking with the police. Based on her two interviews and further investigation, the Government brought charges against Brown for conspiring to traffic drugs, and for her role in Knight’s murder. For sentence enhancement purposes, on the drug trafficking charge, the Government had to prove that Brown conspired to traffic 1,000 or more kilograms of marijuana. However, when the jury was charged, all parties miscalculated the proper conversion ratio between kilograms and pounds. The parties believed 2,200 pounds equates to 1,000 kilograms, but 2,200 pounds actually equates to just less than 998 kilograms. Therefore, the Government presented evidence that Brown trafficked 2,200 pounds of marijuana, when it needed to prove she trafficked 2,204.63 pounds. Brown’s attorney initially questioned the conversion but failed to object, and Brown was convicted on all counts.

The Court reasoned that the district court did not err by introducing the videotaped interviews between Brown and the police, although these interviews were conducted without Brown’s attorney present, because she made those statements voluntarily. Furthermore, Brown’s attorney was not constitutionally ineffective under the Sixth Amendment simply because her attorney failed to “insist” in joining the interviews.

The Court also reasoned that the district court’s “vacation from the bench” while the jury watched those taped interviews was not reversible error per se because the district court was “absent for a relatively short time after all the evidence had been presented; no rulings were requested during the court’s absence”; and nothing else “of note” happened in its absence. Furthermore, Brown’s attorney failed to make a timely objection to preserve the error on appeal.

Finally, although the district court mistakenly calculated the kilograms to pounds conversion, Brown’s attorney failed to timely object—rather, her attorney questioned the conversion numbers, but then accepted the district court’s flawed conversion. Thus, the district court’s flawed conversion was a harmless error because the Government presented evidence that Brown trafficked drugs more than 2,204.63 pounds, which was the requisite. In fact, the jury foreperson’s words to the district court seemed to understand that to be the case, and stated that the jury found that Brown trafficked 2,200 pounds “or more.”

Full Opinion

James Bull Sterling

SHIMARI v. CACI PREMIER TECHNOLOGY, INC., NO. 13-1937

Decided: June 30, 2014

The Fourth Circuit held that the appellants’ claims of torture and mistreatment against a national defense contractor sufficiently “touch and concern” the territory of the United States (U.S.) so as to “displace the presumption against extraterritorial application of the Alien Tort Statute.”  However, the record contained insufficient facts to determine whether the claims presented nonjusticiable political questions.

The four appellants were all foreign nationals who had been detained at Abu Ghraib after the U.S. invaded Iraq and took control of the prison in 2003.  The U.S. hired civilian contractors from CACI, a U.S. corporation headquartered in Virginia, to interrogate the detainees.  A Department of Defense (DoD) report found widespread abuse and mistreatment of detainees at Abu Ghraib between October and December 2003.  Further investigations by the DoD found that CACI interrogators “directed or participated in some of the abuses, along with a number of military personnel.”  The appellants’ claims against CACI alleged that its employees “instigated, directed, participated in, encouraged, and aided and abetted conduct towards detainees that clearly violated” international and domestic law.

CACI was under contract with the Department of the Interior to provide interrogation management, support, and supervision at the prison.  Appellants alleged that in performing the contract, CACI failed to adequately supervise its employees; ignored reports of abuse; denied any wrongdoing by its employees; and attempted to cover up the abuses.  The appellants filed claims under the Alien Tort Statute (“ATS”), and asserted numerous common law claims, including assault and battery, and negligent hiring and supervision.  The district court dismissed all ATS claims, holding that the court lacked jurisdiction because the conduct giving rise to the claims occurred entirely outside the U.S.  The court also dismissed the common law claims, finding that Iraqi law precluded imposing liability on the appellees for those claims.

CACI challenged the Court’s jurisdiction under the ATS and under the political question doctrine.  The ATS is a jurisdictional statute that gives district courts jurisdiction over civil actions filed by aliens for torts committed in violation of international law.  The U.S. Supreme Court recently addressed whether an ATS claim can reach extraterritorial conduct in Kiobel v. Royal Dutch Petroleum Co, 133 S. Ct. 1659 (2013).  In Kiobel,  several Nigerian nationals were granted asylum in the U.S., and brought claims under the ATS against British, Dutch, and Nigerian corporations.  The plaintiffs alleged that the corporations violated international law by supplying Nigerian forces with food and supplies, thus aiding and abetting the atrocities they committed, including murder and rape.  All alleged tortious conduct occurred in Nigeria, and the only connection to the United States was that the defendant corporations were listed on the New York Stock Exchange.  The U.S. Supreme Court held that the ATS claims were barred, relying primarily on “principles underlying an established canon of statutory interpretation, which raises a presumption against extraterritorial application of acts of Congress.”  Because the statute gave no indication that Congress intended it to have extraterritorial reach, the U.S. Supreme Court found the plaintiffs’ claims concerning conduct occurring outside the United States were barred.

As the Fourth Circuit noted, the U.S. Supreme Court based its holding largely on the fact that all the alleged tortious conduct occurred outside the U.S.  The U.S. Supreme Court in Kiobel explained that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” Id. at 1669. In the present case, the Fourth Circuit emphasized how broad the “touch and concern” standard is, noting that the majority in Kiobel explicitly rejected narrower standards proposed by the concurrence.  The Fourth Circuit stated that the broader standard contemplates that all facts underlying an ATS claim should be examined when determining whether the claim sufficiently “touches and concerns” the U.S., not just the alleged tortious conduct.

In the present case, the appellants’ “claims reflect extensive ‘relevant conduct’ in United States territory, in contrast to the ‘mere presence’ of foreign corporations that was deemed insufficient in Kiobel.”  Here, the allegations involved conduct by U.S. citizens employed by an American corporation that was under contract with the U.S. Government to provide services abroad.  Furthermore, the alleged tortious conduct occurred while performing the contract at a military facility operated by the U.S. Government.  Finally, the appellants’ claims do not solely involve conduct abroad, but also alleged CACI executives in the U.S. ignored reports of abuse and attempted to cover up the misconduct. Thus, the ATS claims sufficiently touch and concern the U.S. and the district court erred in finding that it lacked subject matter jurisdiction. The judgment dismissing the plaintiffs’ ATS claims based on lack of jurisdiction was vacated.

Next, the Court addressed whether the ATS and common law claims were barred by the political question doctrine.  The district court, at an earlier stage in the litigation, found that the appellants’ claims did not present nonjusticiable political questions.  In this appeal, CACI renewed its political question challenge.  In Taylor v. Kellogg Brown & Root Services, Inc., the Fourth Circuit established a test for determining the justiciability of claims brought against government contractors performing services for the military.  658 F.3d 402 (4th Cir. 2011). Under this test, the Court addressed two critical factors: “(1) whether the government contractor was under the ‘plenary’ or ‘direct’ control of the military; and (2) whether national defense interests were ‘closely intertwined’ with military decisions governing the contractor’s conduct, such that a decision on the merits of the claim ‘would require the judiciary to question actual, sensitive judgments made by the military.’”  In the present case, the Court found the factual record was insufficiently developed to answer the questions posed by the Taylor test and remanded the case for the district court to reexamine the issue of justiciability.

Full Opinion

Jennifer Jokerst

BYNUM v. NORFOLK S. RY. CO., NO. 13-2127

Decided: June 23, 2014

The Fourth Circuit held that it lacked jurisdiction to review a district court’s order that remanded a case to state court.

Gilbert Bynum, a Norfolk Southern Railway employee, was injured on the job when he tripped over debris that had accumulated alongside the railroad tracks.  Bynum applied for, and was awarded, workers’ compensation benefits as provided under the Federal Longshore and Harbor Workers’ Compensation Act (LHWCA).  Bynum also filed a lawsuit in state court under the Federal Employers Liability Act (FELA), which alleged negligence on the part of Norfolk Southern.  Norfolk Southern removed the case to federal court contending that (1) because Bynum recovered under LHWCA he was barred from recovery under FELA and (2) whether Bynum’s injury was covered by the LHWCA was a federal question that should not be answered by state courts.  Bynum filed, and the district granted, a motion to remand to state court on the basis that Congress expressly eliminated the federal court’s jurisdiction over the LHWCA.

Under 28 U.S.C. § 1447, appellate courts are generally prohibited from reviewing the merits of a district court’s remand order.  While the prohibition on appellate review has been limited in some ways, case law establishes that appellate courts may not review a remand that was ordered on the basis of either (1) lack of subject matter jurisdiction or (2) a defect in removal that was raised within thirty days after the notice of removal was filed.  Ellenburg v. Spartan Motor Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008).  The Court reasoned that Norfolk Southern’s failure to comply with the statutory removal requirements, i.e. removing a FELA claim to federal court in contravention of the statutory bar to removal of FELA claims, constituted a defect and, therefore, the Court lacked jurisdiction to review the remand on appeal.

Full Opinion

Amanda K. Reasoner

CALDERON v. GEICO GEN. INS. CO., NO. 13-2149

Decided: June 6, 2014

The Fourth Circuit held that it lacked jurisdiction to consider Appellees’ and Appellant’s interlocutory appeals and, thus, dismissed the appeals.

Appellees previously worked as security investigators in Appellant GEICO’s Claims Department, and investigated suspected fraudulent claims.  Appellant classifies its security investigators as exempt from the Fair Labor Standards Act’s (FLSA) overtime pay protections, and Appellees filed suit in 2010 seeking recovery of the overtime pay they were allegedly owed, and that Appellant wrongfully withheld in violation of the FLSA, and New York state law.  The district court rejected Appellant’s classification of Appellees as exempt under the “administrative function” exemption, and granted Appellees’ motion for partial summary judgment.  The district court entered an order, which it described as a “final judgment,” that contained a formula for calculating the back pay owed to Appellees.  The Order also stated that the district court retained jurisdiction to resolve or oversee any issue concerning the back pay remedy.  Appellant appealed the Order, and Appellees cross-appealed the district court’s remedy rulings.

The Fourth Circuit stated that its appellate jurisdiction, with limited exceptions, extends only to reviewing any final decisions rendered by the district courts.  28 U.S.C. § 1291.  A final decision is one that ends litigation on its merits, and leaves only the execution of a judgment for the court.  A judgment on liability where the damages are not fixed is not a final judgment, as an assessment of damages consists of part of a claim on the merits, and must be determined for a final judgment.  Further, the label given to an order by a district court does not determine whether an order is final.  The Fourth Circuit found that although the district court decided many of the issues determinative of the amount of damages Appellees are entitled to, the district court’s order was not final because it did not determine all of the facts necessary to be able to compute Appellees’ damages, nor did it determine how its back pay formula applies to the facts of the case.  The Court noted that a number of factual or legal issues could potentially arise that may affect the amount of damages, as evidenced by the district court’s retention of jurisdiction should any disputes arise between the parties in calculating Appellees’ damages.  Thus, the district court had to accomplish more than merely enforcing its judgment, and its judgment was not final.  The Fourth Circuit, therefore, concluded it did not have a final decision to review, and had no choice but to dismiss the parties’ appeals.

Full Opinion

Alysja S. Garansi

PPL ENERGYPLUS, LLC v. NAZARIAN, NO. 13-2419

Decided: June 2, 2014

The Fourth Circuit affirmed the district court’s holding that a program to subsidize the participation of a new power plant in the federal wholesale energy market is preempted by the Federal Power Act’s authorizing provisions, which grant exclusive authority over interstate rates to the Federal Energy Regulatory Commission.

The Court focused on two theories, which preempt the program by the Supremacy clause: field preemption and conflict preemption.  The doctrine of field preemption applies when Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law.  Actual conflict between a challenged state enactment and relevant federal law is unnecessary to a finding of field preemption; instead, the Court emphasized the mere fact of intrusion.  The federal energy scheme thus leaves no room for direct state regulation of the prices of interstate wholesales of energy, or for state regulations, which would indirectly achieve the same result.  Thus, the Court found that the program in question was field preempted because the program functionally set the rate that the appellant receives for its sales.  Alternatively, conflict preemption applies “where under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  As with field preemption, the Court concluded that the impact of state regulation of production on matters within federal control, via the program, is so extensive and disruptive of the market that preemption is appropriate.

Full Opinion

Grace Faulkenberry

BARNES v. JOYNER, NO. 13-5

Decided: May 5, 2014

The Fourth Circuit held that the state post-conviction court’s failure to apply a Remmer presumption of prejudice over external juror communication and failure to investigate Barnes’ juror misconduct claim were unreasonable applications of clearly established federal law.  The Court remanded the case to determine whether the state court’s failures had a substantial and injurious effect, or influence, on the jury’s verdict.

In 1994, Barnes was convicted of first-degree murder, and sentenced to death.  Barnes alleged that, after counsel’s provocative closing argument that a juror’s soul would be damned if the death penalty was recommended, a juror discussed the death penalty with her pastor prior to giving a sentencing recommendation.  Barnes later alleged that the juror relayed this discussion to fellow jurors, brought a Bible into the jury room, and read passages suggested by the pastor.  The North Carolina Supreme Court held that Barnes failed to prove that the juror’s contact with her pastor prejudiced Barnes, or denied him the right to an impartial jury.  Despite new evidence in 1999 that confirmed some of what Barnes alleged, the state post-conviction court denied Barnes’ claim, and adopted the same analysis as the state supreme court because the court was procedurally barred from considering an issue on which the state supreme court had already ruled.  Barnes then applied for a Writ of Habeas Corpus in federal court.  A federal magistrate judge recommended that all claims be denied, which the district court then adopted.  The district court determined that the state court’s application of federal law was valid, but granted Barnes’s a Certificate of Appealability on the issue of whether the external juror communication violated Barnes’s Sixth Amendment right to a fair trial.

The Fourth Circuit began its habeas corpus analysis with the question of whether a state prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.”  28 U.S.C. § 2254(a).  Because the Court determined that the decision made by the state court was on the merits, its analysis is constrained by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  After a previous state court rules on the merits, habeas relief may be granted only if the state court’s decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.”  28 U.S.C. § 2254(d)(1).  A ruling is contrary to clearly established federal law if the state court arrived at a decision that is opposite to the U.S. Supreme Court’s decision on a question of law or if the result is different form a previous U.S. Supreme Court’s decision on materially similar facts.  William v. Taylor, 529 U.S. 362, 413 (2000).  A ruling is an unreasonable application of clearly established federal law as interpreted by the U.S. Supreme Court when the state court unreasonably applies the law to the facts of the prisoner’s case.  Id. at 413.  The petitioner has the burden of proving that the state court’s ruling so lacked in justification that the error existed “beyond any possibility for fairminded disagreement.”  White v. Woodall, 2014 WL 1612424, at *4 (2014).  The state court’s decision is reviewed under an “objectively unreasonable” standard.  Robinson v. Polk, 438 F.3d 350, 355 (4th Cir. 2006).  Before granting habeas relief, the court must also determine that the error had “a substantial and injurious effect or influence in determining the jury’s verdict,” Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir. 2002), that actually prejudiced the habeas petitioner, Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011).

U.S. Supreme Court precedent clearly establishes that external influences on jury deliberations are a violation of a criminal defendant’s right to an impartial jury.  In Remmer v. U.S., the U.S. Supreme Court established a presumption of prejudice against any communications or contact between a third party and a juror on a pending matter, and required an evidentiary hearing to determine if the defendant’s case suffered actual prejudice.  347 U.S. 227 (1954).  The Court acknowledged that the Remmer presumption remains good law in the Fourth Circuit, despite a circuit court split.  See Smith v. Phillips, 455 U.S. 209 (1982); United States v. Olano, 507 U.S. 725 (1993).  The U.S. Supreme Court determined that, though there are cases where an intrusion should be presumed prejudicial, the ultimate inquiry is: “did the intrusion affect the jury’s deliberations and thereby its verdict?”  Olano, 507 U.S. at 739.  The Fourth Circuit has interpreted this to mean that there can be either a presumption of prejudice, or a specific analysis of the contact or communication on the jury’s verdict.  U.S. v. Lawson, 677 F.3d 629 (4th Cir. 2012).

The Fourth Circuit applies the Remmer presumption to direct appeals, and those under § 2254 review.  Post-Remmer case law confirms that a constitutional right to due process requires a hearing to ascertain whether contact or communication with a juror in a pending trial is prejudicial to the defendant’s right to a fair trial.  Depending on when the issue arises, the hearing can be held during or after trial.  Remmer hearings are triggered when the defendant shows unauthorized contact with a juror, and that the integrity of a verdict is reasonably in question.  In other words, the contact must be “more than innocuous interventions,” U.S. v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996).  Scenarios include bribes to a juror; applications by a juror to the prosecuting attorney’s office during a trial; comments to a juror about what the juror should decide; pressure from the juror’s spouse to decide a certain way; comments by the bailiff about how to decide, or that any incorrect verdict will be corrected by a higher court.  AEDPA does not require identical facts to previous U.S. Supreme Court precedent to find clearly established law to guide the court’s decision.

The state court’s adjudication of Barnes’s claim was an unreasonable application of clearly established federal law.  Despite additional claims before the state court based on juror testimony that there was contact between a juror and her pastor which led to certain Bible passages being read to jurors who were unsure about the death penalty, the state court essentially required Barnes to prove a Sixth Amendment violation before giving Barnes a Remmer hearing.  If Remmer applied this way, then the Remmer hearing requirement, which is meant to determine what, if any, violation actually happened, would be meaningless.  The defendant only needed to make a threshold showing that the external contact was more than just an “innocuous intervention” about a matter pending before the jury.  The Fourth Circuit reasoned that this was clearly a matter before the jury because the jury was charged with determining whether to give a death sentence.

The Court remanded the decision to the district court to determine whether the state court’s failure to apply Remmer and to investigate whether the external contact had a substantial and injurious effect or influence on the jury’s verdict.  The Court noted that, in deciding to grant a habeas petition, Barnes will not be entitled to the Remmer presumption because it does not apply in the federal habeas corpus context, and thus Barnes would need to affirmatively prove actual prejudice by showing that the jury’s verdict was tainted by the extraneous communication between the juror and her pastor.

In the dissent, Judge Agee argued that the majority failed to give proper AEDPA deference to the state court’s adjudication of this matter.  In his opinion, AEDPA deference includes not only any reasoning articulated by the state court, but also any arguments or theories that could have supported the state court’s decision.  Instead, Judge Agee claimed that the majority disagreed with the state court’s interpretation of Remmer, and inserted the federal court’s interpretation over that of the state court.  Ultimately, Judge Agee agreed that the state court reasonably applied Remmer as clearly established precedent, but that the state court’s interpretation was reasonable because no court had determined when a matter was pending before the jury.  Thus, the majority should not have addressed the issue in the first instance because the state court’s interpretation was not unreasonable.  According to the dissent, the state court could have reasonably concluded that the communication at issue was not about the pending matter because it was not about the choice of sentencing.  The jurors were not charged with deciding the eternal consequences of their soul.

Full Opinion

Verona Sheleena Rios

COMPANY DOE v. PUBLIC CITIZEN, NO. 12-2209

Decided: April 16, 2014

The Fourth Circuit held that the district court order that sealed litigation records violated the public’s right to access under the First Amendment, and that the district court abused its discretion by allowing the company to proceed under a pseudonym.  Ultimately, the Court vacated the district court’s intervention denial and remanded the decision.

The plaintiff, Company Doe, filed suit under the Administrative Procedure Act seeking to enjoin the U.S. Consumer Product Safety Commission (CPSC) from publishing a “report of harm.”  The report alleged that a product that was manufactured, and sold, by Company Doe’s was related to the death of an infant.  Company Doe requested that the district court allow it to proceed under a pseudonym, and that the proceedings be sealed.  The district court granted both, and as the Fourth Circuit noted, “[r]egrettably . . . allowed the entire litigation to proceed . . . behind closed doors.”  The district court ultimately ruled in favor of Company Doe on the merits also, issuing a permanent injunction that barred the CPSC from publishing the alleged report.

Following the judgment, the court released an opinion “with sweeping redactions.”  The CPSC did not appeal the decision.  Rather, three consumer advocacy groups (collectively Consumer Groups) filed a post-judgment motion to intervene for the purposes of appealing both conditions.   The district court, however, did not rule on the motion until the period to appeal the underlying judgment expired.   Consumer Groups noted their appeal of the district court’s sealing and pseudonymity orders as well as the court’s “constructive denial” of the motion to intervene.  Consumer Groups filed their appeal, and three months later the district court denied the motion to intervene.

The Fourth Circuit vacated the court’s order denying intervention and concluded that the consumer groups had standing to appeal even though they “were neither parties to, nor intervenors in, the underlying case . . . because they [met] the requirements for nonparty appellate standing and have independent Article III standing to challenge the sealing . . . orders.”  The Consumer Groups also succeeded on the merits.   The Court noted the difficult balancing act involved: weighing Company Doe’s interest in sealing the bulk of the court record against the First Amendment Interest of the CPSC and Consumer Groups.  The Fourth Circuit ultimately held that the seal of the records violated the public’s right of access under the First Amendment.  Accordingly, the Court remanded the case to the district court and ordered that all documents be unsealed, unredacted, and made available to the consumer groups and the public.  The Court also concluded that the district court abused its discretion by allowing Company Doe to litigate under a pseudonym.

Full Opinion

Abigail Forrister

IN RE: UNDER SEAL, NO. 13-4625

Decided: April 16, 2014

The Fourth Circuit held that the district court did not clearly err by holding Lavabit LLC (“Lavabit”) and its owner, Levison, in contempt for their failures to comply with a Pen/Trap Order.

Lavabit and Levison (“Lavabit”) provided email service to around 400,000-plus users, and used the industry-standard Secure Sockets Layer (“SSL”) encryption and decryption method to transmit its data.  Essentially, this encryption method relies on a public key, less important, and a private key, which may compromise the data of all users if a third party gains access.  In 2013, the Government obtained court orders under the Pen/Trap State, 18 U.S.C. §§ 3123–27, and the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701–12, which required Lavabit to turn over metadata, not email content, on the target account for a criminal investigation.  While meeting with Federal Bureau of Investigation (FBI) agents, Lavabit signaled that he did not plan to comply with the order, but indicated he was “technically capable [of] decrypt[ing] the [target’s] information.”  Thus, the Government secured an order to compel Lavabit’s compliance with the Pen/Trap Order.  This order specifically stated that a failure to comply could result in a criminal contempt of court proceeding against Lavabit.  Nonetheless, Lavabit disregarded the court’s order, ignored the FBI’s requests to confer, and withheld the unencrypted metadata.  After a series of court orders, hearings, failed compliance, and attempted demands to pay for his services; Lavabit allowed a Pen/Trap Device to be installed but failed to provide the encryption keys so that the information was useless to the Government.  Then, Lavabit moved to quash the seizure warrant, which the district court denied, and held a compliance hearing that ordered Lavabit to provide the private keys by August 5.  Again, Lavabit failed to comply.  On August 5, the Government moved for sanctions in the amount of five-thousand-dollars per day against Lavabit and Levinson until they complied.  Finally, after six weeks of data was lost, Lavabit complied.  Now, Lavabit appeals its civil contempt charges with various statutory and constitutional challenges.

Before addressing the appeal, the Fourth Circuit noted that the civil contempt order presented a live controversy because Lavabit and Levison may be sanctioned further for their conduct.  The Court noted that Lavabit’s failure to raise its statutory challenges to the Pen/Trap Order and the SCA in the district court constricted the Fourth Circuit to “reverse only if the newly raised argument establishes ‘fundamental error’ or a denial of fundamental justice.”  Stewart v. Hall, 770 F.2d 1267, 1271 (4th Cir. 1985).  The Court emphasized that forfeiture and waiver rules are critical to maintaining the integrity of courts, avoiding unfair surprise to opponents, preserving finality, and conserving judicial resources.  Holly Hill Farm Corp. v U.S., 447 F.3d 258, 267 (4th Cir. 2006).

The Court refused to rewrite Lavabit’s own statements to create a specific, timely objection that would preserve a claim on appeal, and instead stated that Lavabit’s own statements likely misled the Government, and the district court.  The Court emphasized that Lavabit’s failure to raise his challenges in the district court required that he demonstrate a plain error standard for reversal by this Court.  In re Celotex Corp., 124 F.3d 619, 631 (4th Cir. 1997).  Instead, Lavabit attempted to persuade the Fourth Circuit to craft a new exception; by claiming that the district court and Government induced him to forfeit his challenges; to answer his question of pure law; to sympathize with him because he appeared pro se in the lower court; and to recognize that this case is one of “public concern.”  The Court found none of these arguments persuasive, and reiterated that Lavabit failed to make his most essential argument for plain error.  Therefore, the Court reasoned that Lavabit abandoned that argument as well.  Finally, the Fourth Circuit noted that two independent bases supported the district court’s civil contempt order, which allowed the Court to avoid any constitutional challenges, and uphold the district court.

Full Opinion

Samantha R. Wilder

SMITH v. GILCHRIST, No. 12-2503

Decided: May 14, 2014

The Fourth Circuit overturned a summary judgment motion in favor of District Attorney (DA) Peter Gilchrist, holding that there was a jury question on whether Gilchrist was entitled to a qualified immunity defense for firing Assistant District Attorney (ADA) Sean Smith in violation of Smith’s First Amendment right to free speech.

In 2010, Smith informed Gilchrist that he had decided to run for the office of the county district court judge.  Within the scope of his candidacy for judicial office, and unrelated to his duties as ADA, Smith gave a public interview, in which he expressed concerns about “defensive-driving” courses that were offered to ticketed drivers.  Smith stated that he was worried that ticketed drivers were not paying attention during the courses; that police officers were “improperly providing” legal advice to ticketed drivers by giving them information pamphlets with their tickets; and that ticketed drivers were “unwittingly” making decisions detrimental to their legal interests.  The DA office had a policy of supporting the program, which reduced its caseload and allowed the office to allocate those resources elsewhere.  When Gilchrist heard about Smith’s interview, he and the Deputy DA met with Smith to discuss Smith’s disagreement with the DA office’s policy in regard to the defensive-driving courses.  During this meeting, Smith disclosed that he disagreed with other DA office policies as well, but he declined to specify which these were.  The next day, Gilchrist fired Smith for insubordination.  Smith brought this claim under 42 U.S.C. § 1983 against Gilchrist in his personal capacity for allegedly violating Smith’s First Amendment right to free speech.  The District Court ruled that Gilchrist was entitled to qualified immunity as a public official, and Smith appealed.

To overcome Gilchrist’s qualified immunity claim, Smith had to satisfy a two-pronged test: (1) Smith’s allegations must “substantiate [a] violation of a federal statutory or constitutional right”, and (2) the violation must be of a “clearly established right of which a reasonable person would have known.”

The Court used a three-prong test to determine whether Gilchrist violated Smith’s First Amendment right to free speech as a public employee.  Smith must have been (1) “‘speaking as a citizen upon a matter of public concern’ rather than ‘as an employee about a matter of personal interest’”; (2) “his ‘interest in speaking upon the matter of public concern [must have] outweighed the government’s interest in providing effective and efficient services to the public’”; and (3) “his ‘speech [must be] a substantial factor’ in the employer’s decision to take action against him.”  The Court held that Smith satisfied the first two prongs.  First, whether ticketed drivers were attentive during the courses, receiving improper legal advice from police officers, and acting against their best legal interests, were all matters of public concern.  Second, Smith’s concerns outweighed the DA office’s interests in providing effective and efficient services because Smith merely expressed concerns over the defensive-driving courses, actions taken by police officers, and ticketed drivers, not DA policy.  The Court gave little weight to the possibility that a change in the defensive-driving courses would impact the DA office’s effectiveness and efficiency by increasing its caseload.  The Court also gave little weight to Gilchrist’s testimony that he disagreed with the “vision” Smith expressed in his public statements because they related to “critical services” that the DA office had “no legitimate interest in opposing.”  Finally, in regard to the third prong, the Court declined to opine on whether Smith’s public statements were a “substantial factor” in Gilchrist’s decision to terminate him.

The Court also held that Smith satisfied the second prong of the qualified immunity test – whether Gilchrist violated a “clearly established” right, and a “reasonable [DA] official” would have known that Smith’s interests outweighed those of the DA office.  Any reasonable official would know that Smith had a clearly established right to make the public comments because they were made in Smith’s capacity as a candidate for public office, concerned matters of public concern, and did not negatively impact the DA office.  Furthermore, a reasonable DA official would have known Smith’s interests outweighed those of the DA office because there was nothing weighing in favor of the DA office – there was no evidence that the speech would affect the DA office’s efficiency.

Full Opinion

James Bull Sterling

IN RE: VASSELL, NO. 13-284

Decided: May 6, 2014

The Fourth Circuit denied Tadd Vassell’s (Vassell) motion for leave to file a successive motion under 28 U.S.C. § 2255 to challenge his mandatory life sentence without parole.

In 1997 Vassell received a life sentence without parole for conspiracy to traffic controlled substances.  Vassell became involved with the conspiracy when he was a seventeen-year-old, and his involvement continued until he was almost nineteen.  Pursuant to 28 U.S.C. § 2255, federal prisoners may file one motion to set aside or reduce a sentence after final judgment; Vassell’s first § 2255 motion was denied.  In order to file successive motions, prisoners must first obtain the authorization of a court of appeals, and must also satisfy the gate-keeping requirements of § 2244.  Section 2244 requires that successive motions contain either “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or “newly discovered evidence.”  Vassell filed a motion for leave to file a successive § 2255 motion based on the U.S. Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012).  In Miller, the Supreme Court held that, when imposed on juveniles, mandatory life sentences without parole for homicide are unconstitutional.

The Court denied Vassell’s motion for leave because the holding from Miller, while “a new rule of constitutional law,” applies to juvenile homicide offenders, not non-homicide offenders.  Rather, Vassell’s potential right to resentencing, assuming that he actually qualifies as a juvenile offender, became available after the U.S. Supreme Court’s opinion in Graham v. Florida, 560 U.S. 48 (2010), in which the U.S. Supreme Court held that imposing a life sentence without parol on a juvenile offender convicted of a non-homicide is unconstitutional.  However, the statute of limitations for § 2255 motions is one year, and the Graham decision was published more than a year prior to Vassell’s motion for leave.  The Court noted that while § 2244 requires only a new rule of constitutional law or newly discovered evidence for the Court to grant leave for a successive § 2255 motion, the statute does not require the Court “to authorize a successive § 2255 motion that is plainly barred as a matter of law.”  Therefore, because Vassell’s § 2255 motion would necessarily rely on the holding from Graham, which was decided more than one year prior to Vassell’s motion for leave, the statute of limitations had already run.

Full Opinion

-Amanda K. Reasoner

WILKINS v. MONTGOMERY, NO. 13-1579

Decided: May 5, 2014

In this appeal, the Court held that the district court properly granted summary judgment for the plaintiff’s 42 U.S.C. § 1983 and gross negligence claims because the plaintiff did not meet the burden of proof required for a § 1983 claim, and the plaintiff did not present facts evidencing the requisite level of negligence required for a gross negligence claim.  The Court also held that the exclusion of the plaintiff’s expert witness was proper because the plaintiff did not disclose the expert’s written report by the agreed-upon deadline, and thus was in violation of the Pre-Trial Order and Federal Rule of Civil Procedure (F.R.C.P.) 26(a)(2).  Furthermore, the Court held that the district court’s denial of a motion to amend the complaint was proper because plaintiff filed for motion to amend after the statute of limitations had expired and the requested amendment, to join additional defendants, did not relate back to the claim.

Appellant brought this action against the defendant, Montgomery, after another patient at Central State Hospital murdered her son.  She filed three claims: grossly negligent supervision, gross negligence under the Virginia Wrongful Death Act, and a 42 U.S.C. § 1983 claim for supervisory liability.  The district court struck Appellant’s expert witness because he was disclosed in an untimely fashion; denied Appellant’s second motion to amend her complaint to add two defendants because such amendment would be futile; and, finally, concluded there was insufficient evidence to support the claims against Montgomery, who was an assistant director in charge of administrative matters at the time of her son’s death.

In affirming summary judgment of the negligence claims, the Court reviewed the record and found the appellant failed to provide sufficient evidence to meet the elements outlined in 42 U.S.C. § 1983, and as provided by Virginia state law for the common law gross negligence claims.  The Court reviewed the district court’s ruling for abuse of discretion regarding the exclusion of the expert witness and, according to F.R.C.P. Rule 37(c)(1) and Fourth Circuit case law, found that excluding the expert witness was an appropriate sanction for the plaintiff’s failure to disclose the expert’s report.  In determining whether an amended complaint related back, the Court looked to F.R.C.P. Rule 15(c)(1).  The Court found that the proposed added defendants did not know or could not have known about the action within the time period set forth in F.R.C.P. Rule 4(m).

Full Opinion

Grace Faulkenberry

U.S. v. CARTER, NO. 12-5045

Decided: April 30, 2014

The Fourth Circuit held that Carter’s conviction under 18 U.S.C. § 922(g)(3), for possession of firearms while being an unlawful user of, and addicted to, marijuana, did not violate his Second Amendment right to bear arms.

Police came to Carter’s apartment after receiving complaints of drug use on the premises.  Carter allowed the police to enter his apartment where they found evidence of marijuana use.  He would later admit to being a long-term user of the drug.  Carter also told the police that there were two firearms in his closet that he claimed to have purchased for protection.  The police seized Carter’s firearms, and he was subsequently convicted under § 922(g)(3).  The Court remanded the case to give the Government an opportunity to present “empirical evidence or data” to show that there was “a reasonable fit” between § 922(g)(3), and a substantial government interest, thereby justifying the infringement on Carter’s Second Amendment right to bear arms.  Carter appealed the District Court’s ruling in favor of the Government.

The Court reasoned that § 922(g)(3) did not violate Carter’s constitutional rights because the Government satisfied an intermediate scrutiny inquiry.  The Government showed “‘a reasonable fit’ between § 922(g)(3), and ‘a substantial [or important] government objective.’”  First, the Government satisfied the “substantial government interest” prong by showing that it had a substantial interest in protecting the community from gun violence.  Then, the Government satisfied the “reasonable fit” prong because it presented empirical evidence that established a reasonable fit between the law and the Government’s substantial interest in protecting the community from gun violence.  The Court disagreed with Carter’s argument that the Government’s empirical evidence was too general – suggesting a connection between violence and drug use in general, as opposed to marijuana specifically.  The Court reasoned that the Government’s empirical evidence “amply demonstrate[d] a connection between marijuana use specifically and violence.”  According to the Court, the Government’s empirical evidence satisfied the reasonable fit prong even though it did not show that marijuana use “caused” increased gun violence because the Government did show a “correlation” between marijuana use and gun violence.  Finally, although empirical evidence was necessary to satisfy the “reasonable fit” prong, the District Court was not precluded from also using “common sense” to support its judgment.

Full Opinion

James Bull Sterling

U.S. v. COBLER, NO. 13-4170

Decided: April 11, 2014

The Fourth Circuit affirmed the district court by finding that it did not abuse its discretion by imposing a 120-year sentence on a defendant convicted of production, possession, and transportation of child pornography, in connection with sexual molestation of a four-year-old boy.  The Court held that the sentence was appropriate because it was designed to protect the public, and address the seriousness of the defendant’s crimes.

Numerous images and video recordings depicting the sexual abuse of children were found on defendant’s computer.  During an interview with police, defendant admitted he downloaded, possessed, and shared child pornography.  Defendant also confessed that he had sexually molested a four-year-old boy while acting as the child’s babysitter on several occasions and had documented the encounters.  Further, the defendant admitted to having a serious communicable disease at the time he molested the child, and acknowledged the possibility that his disease could be transmitted to the child by sexual contact.  None of the defendant’s criminal charges provided for a lifetime sentence but the sentence was ultimately calculated to be 120 years, which represented the sum of the statutory maximum sentences available for each count of the defendant’s conviction.  The defendant argued that his 120-year sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment because the sentence is disproportionate to the severity of his crimes.

A defendant may challenge the proportionality of a sentence under the Eighth Amendment in two different ways.  First, under an “as-applied” challenge, a defendant contests the length of a certain term-of-years sentence as being disproportionate under the totality of circumstances.  Second, in a “categorical” challenge, a defendant asserts that an entire class of sentences is disproportionate based on the nature of the offense, or the characteristics of the offender.  In this appeal, the defendant argued that his sentence is constitutionally infirm under both these approaches.

Before an appellate court concludes that a sentence is grossly disproportionate based on an as-applied challenge, the court first must determine that a “threshold comparison” of the gravity of the offense and the severity of the sentence “leads to an inference of gross disproportionality.”  In the event that such an inference may be drawn, the court is required to compare the defendant’s sentence: (1) to sentences for other offenses in the same jurisdiction; and (2) to sentences for similar offenses in other jurisdictions.  If this extended analysis validates the threshold determination that the sentence is grossly disproportionate, then the sentence is deemed cruel and unusual punishment under the Eighth Amendment.

With respect to a categorical challenge, the reviewing court first determines whether a national consensus against the sentencing practice at issue is evident from objective societal standards.  Next, the court exercises its independent judgment whether the punishment violates the Constitution.  Thus, a categorical challenge requires consideration of the culpability of the class of offenders in light of their crimes and characteristics, along with the severity of the punishment.

Given the defendant’s shocking and vile conduct, the Court held that he failed to substantiate the required threshold inference of gross disproportionality.  The Court also held that the defendant’s categorical challenge likewise lacked merit.  Thus, the sentence of 120 years’ imprisonment did not constitute cruel and unusual punishment under the Eighth Amendment.  The Court also reviewed the defendant’s challenge to the reasonableness of his sentence.  The Court determined that the sentencing court did not commit significant procedural error.  Further, the Court determined that the sentence was substantively reasonable as the district court explicitly considered the need for defendant’s sentence to deter others from engaging in what the court considered “the most serious and egregious conduct.”  Judgment affirmed.

Full Opinion

Grace Faulkenberry

UNITED STATES EX REL. OBERG V. PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY, NO. 12-2513

Decided: March 13, 2014

The Fourth Circuit held that Dr. Jon H. Oberg (Dr. Oberg), a relator for the United States, sufficiently alleged that the Pennsylvania Higher Education Assistance Agency (PHEAA) is a person for purposes of the False Claims Act (FCA), 31 U.S.C. §§ 3729 et seq.; that Dr. Oberg sufficiently alleged that the Vermont Student Assistance Corporation (VSAC) is a person under the FCA; and that the Arkansas Student Loan Authority (ASLA) is an arm of the state and therefore not subject to FCA suits.  The Fourth Circuit therefore affirmed the judgment of the United States District Court for the Eastern District of Virginia in part, vacated it in part, and remanded the case.

According to Dr. Oberg, the PHEAA, the VSAC, and the ASLA (collectively, the appellees) “defrauded the Department of Education by submitting false claims for Special Allowance Payments” (SAPs), a federal subsidy for the interest on student loans.  Dr. Oberg contented that the actions of the appellees constituted violations of the FCA, under which “any person” who, inter alia, “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” to certain government officials may be held liable.  31 U.S.C. § 3729(a)(1)(A).  While the FCA does not define person, the Supreme Court held in a 2000 opinion that, while states and state agencies are not persons under the FCA, the FCA presumptively covers corporations.  Vermont Agency of Natural Resources v. United States, ex rel. Stevens, 529 U.S. 765.  In a previous appeal by Dr. Oberg, the Fourth Circuit held that, with regard to state-created corporations, courts should apply the Eleventh Amendment arm of the state analysis to determine whether such corporations may be held liable under the FCA.  United States ex rel. Oberg v. Kentucky Higher Education Student Loan Corporation, 681 F. 3d 575.  Because the district court dismissed Dr. Oberg’s complaint without conducting the arm of the state analysis, the Fourth Circuit vacated the judgment of the district court and remanded the case.  On remand, the district court found that the appellees were arms of their respective states.  The district court therefore granted the appellees’ motions to dismiss, and Dr. Oberg appealed.

The Fourth Circuit noted that, in the FCA context, the arm of the state analysis involves a statutory question rather than an affirmative defense.  The Fourth Circuit then applied a nonexclusive four-factor test to determine whether each corporation is an arm of the state.  Under this test, the Fourth Circuit considered whether judgments against the corporations would be paid by the state; the level of autonomy the corporations exercise; whether the corporations are primarily involved with state or non-state concerns, such as local or out-of-state operations; and the treatment of the corporations under the laws of their respective states.  With regard to the PHEAA, the Fourth Circuit found that Pennsylvania is not liable for judgments against the PHEAA from either a legal or a functional perspective; that, when considering “all reasonable inferences in favor of the plaintiff,” the autonomy factor also weighed against arm of the state status; that the PHEAA’s focus on the “legitimate state concern” of providing financial aid services weighed toward arm of the state status; and that the PHEAA’s treatment under Pennsylvania law also weighed in favor of arm of the state status.  The Fourth Circuit concluded that, despite the indications to the contrary, Dr. Oberg sufficiently alleged that the PHEAA is a person.

With regard to the VSAC, the Fourth Circuit found that Vermont’s liability for judgments against the VSAC is unclear—but that, construing the facts “in the light most favorable to the plaintiff,” the liability factor counseled against arm of the state status; that the VSAC’s level of autonomy “also present[ed] a close question”—but that, “draw[ing] all reasonable inferences in favor of the plaintiff,” the autonomy factor weighed against arm of the state status; that the VSAC’s financial statements indicated a focus on state educational concerns; and that Vermont law provides that, inter alia, the VSAC “shall be an instrumentality of the state,” Vt. Stat. Ann. tit. 16, § 2823(a).  The Fourth Circuit concluded that, despite the indications to the contrary, Dr. Oberg sufficiently alleged that the VSAC is a person.

With regard to the ASLA, the Fourth Circuit found that Arkansas would pay for judgments against the ASLA under state law; that the ASLA “operates with little autonomy from Arkansas despite its corporate powers”; that Dr. Oberg did not allege any facts “indicating that ASLA is not primarily involved with the state concern of helping to finance higher education for Arkansas residents”; and that the ASLA is an arm of the state under Arkansas law.  The Fourth Circuit therefore concluded that the ASLA is an arm of the state.

Full Opinion

-Stephen Sutherland

YATES V. MUNICIPAL MORTGAGE & EQUITY, LLC, NO. 12-2496

Decided: March 7, 2014

The Fourth Circuit held that the United States District Court for the District of Maryland properly dismissed the plaintiff shareholders’ claims against Municipal Mortgage & Equity (MuniMae) and certain directors and officers of MuniMae (collectively, the MuniMae defendants) under the Private Securities Litigation Reform Act (PSLRA), 15 U.S.C. § 78u-4, as the plaintiffs did not adequately plead scienter in their action under § 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C. § 78j(b); that the plaintiffs’ claim under § 11 of the Securities Act of 1933 (Securities Act), 15 U.S.C. § 77k(a), was time-barred by the three-year statute of repose in § 13 of the Securities Act, 15 U.S.C. § 77m; and that named plaintiff Charles W. Dammeyer (Dammeyer) did not sufficiently allege standing to bring a claim under § 12(a)(2) of the Securities Act, 15 U.S.C. § 77l(a)(2).  The Fourth Circuit therefore affirmed the judgment of the district court.

During the putative class period—spanning from May 3, 2004, to January 29, 2008—MuniMae “was one of the nation’s largest syndicators of low-income housing tax credits” (LIHTCs).  MuniMae organized certain LIHTC investment partnerships (LIHTC Funds) to pool LIHTCs and sell them to investors.  During the putative class period, MuniMae typically served as the general partner of these LIHTC Funds.  MuniMae mainly considered its LIHTC Funds to be off balance sheet entities before 2003.  In 2003, “the Financial Accounting Standards Board adopted Financial Accounting Standards Board Interpretation No. 46R” (FIN 46R), addressing the reporting requirements for off balance sheet entities therein.  FIN 46R created a new category of off balance sheet entity, the Variable Interest Entity (VIE); pursuant to FIN 46R, a company that is the “primary beneficiary” of a VIE must consolidate the VIE’s assets and liabilities onto its financial statements.  MuniMae first reported compliance with FIN 46R in the first quarter of 2004 and continued to assert compliance in its financial filings with the Securities and Exchange Commission through mid-2006.  MuniMae also conducted a secondary public offering (SPO) in February 2005.  In March 2006, MuniMae revealed that it was restating certain financial statements that involved financial reporting errors unrelated to FIN 46R.  In September 2006, MuniMae announced another restatement (the second restatement).  While MuniMae initially did not tell investors that the second restatement would deal with FIN 46R compliance issues, it later revealed that it had yet to “reach[] a conclusion regarding the extent of the [second] restatement.”  In January 2007, MuniMae disclosed that the second restatement would deal with accounting errors involving FIN 46R; MuniMae stated that it would “be required to consolidate substantially all of the [LIHTC] equity funds it has interests in.”  In a November 2007 teleconference with investors, MuniMae officers declined to estimate the second restatement’s cost—though they admitted that the cost would be substantial.  In January 2008, MuniMae announced cuts to its quarterly dividend, attributing the cuts to, inter alia, the cost of the second restatement.  However, MuniMae also asserted that it did “not believe the results of the restatement w[ould] materially change the previously recorded cash balances of the Company and its subsidiaries.”  MuniMae’s share price dropped precipitously in late January.  In a conference call on January 29, MuniMae gave investors more details about the second restatement—including details about the second restatement’s massive scope.  In April 2008, MuniMae revealed that it had spent over $54 million on the second restatement.

After shareholders brought multiple lawsuits against the MuniMae defendants and the 2005 SPO’s lead underwriters, their suits were consolidated for pretrial proceedings; the shareholders then filed a class action complaint.  They brought claims under the Exchange Act and the Securities Act, alleging that the MuniMae defendants committed securities fraud through false representations of MuniMae’s compliance with FIN 46R and concealment of the second restatement’s cost.  With regard to the plaintiffs’ claims under § 10(b) of the Exchange Act, the district court held that—under the PSLRA’s heightened pleading standards—the plaintiffs’ amended complaint did not sufficiently plead scienter.  The district court also found the plaintiffs’ claim under § 11 of the Securities Act time-barred by the Act’s statute of repose; furthermore, the district court found that Dammeyer—“the only named plaintiff asserting Securities Act claims with respect to the SPO”—did not have standing to bring a claim under § 12(a)(2) of the Securities Act.  The district court therefore dismissed these claims, and the plaintiffs appealed.

With regard to the plaintiffs’ claims under § 10(b) of the Exchange Act, the Fourth Circuit concluded that, under the PSLRA’s heightened pleading standards, the inference that the MuniMae defendants acted with intent or severe recklessness—which the plaintiffs aimed to establish through the statements of three confidential witnesses, the presence of certain red flags, allegations of insider trading, and general business motivations for committing fraud—was not at least as compelling as the opposing inference that the MuniMae defendants acted innocently or negligently.  The Fourth Circuit also considered the disclosures made by the MuniMae defendants during the class period when making this comparative inquiry.  With regard to the plaintiffs’ claims under § 11 of the Securities Act, the Fourth Circuit found that the date upon which the securities in the SPO were “bona fide offered to the public” was the effective date of MuniMae’s registration statement—January 14, 2005.  Because the plaintiffs brought their § 11 action more than three years after this date, the Fourth Circuit found their claim time-barred by the statute of repose.  Lastly, with regard to the claim under § 12(a)(2) of the Securities Act, the Fourth Circuit found that the “pursuant and/or traceable to” language in the amended complaint to be conclusory; furthermore, the Fourth Circuit found that this language was not accompanied with sufficient supportive facts to support a plausible inference of standing.

Full Opinion

– Stephen Sutherland

IN RE: KBR, INC., NO. 13-1430

Decided: March 6, 2014

The Fourth Circuit, finding that the district court lacked the information necessary to dismiss Appellants’ claims, vacated the district court’s decision granting summary judgment in favor of Appellee and remanded for further proceedings.

Fifty-eight individuals, the majority of whom are United States military personnel (Servicemembers), brought various state tort and contract claims against KBR, Inc.; Kellog Brown & Root LLC; Kellog Brown & Root Services, Inc.; and Halliburton (collectively, KBR). The Army contracted with KBR to provide waste disposal and water treatment services on military bases in Iraq and Afghanistan. Unfortunately, according to the Servicemembers, they suffered injuries as a result of KBR’s waste disposal and water treatment practices, which allegedly breached the contract.

The Servicemembers contended that KBR violated the waste management and water disposal components of the contract by failing to properly handle and incinerate waste and by providing contaminated water to military forces. The Judicial Panel on Multidistrict Litigation transferred all of the cases to the District of Maryland for consolidated pretrial proceedings. KBR then filed a motion to dismiss for lack of subject matter jurisdiction, arguing that (1) the Servicemembers’ claims are nonjusticiable under the political question doctrine; (2) KBR is entitled to derivative sovereign immunity based on the discretionary function exception to the federal government’s waiver of immunity in the Federal Tort Claims Act (FTCA); and (3) the FTCA’s combatant activities exception preempts the state tort laws underlying the Servicemembers’ claims. The district court denied the motion to dismiss without prejudice, concluding that it did not have enough information to decided the issue. And, due to its concern about unleashing “the full fury of unlimited discovery” on government contractors operating in war zones, the court asked the parties to submit a joint discovery plan for limited jurisdictional discovery.

The district court, subsequently, stayed the proceedings in light of the Fourth Circuit’s pending decision in Al-Quraishi v. L-3 Services, Inc. Following the resolution of those appeals, the district court granted KBR’s renewed motion to dismiss, holding that the political question doctrine, derivative sovereign immunity, and the combatant activities exception each provided a basis on which to dismiss the Servicemembers’ claims. This appeal followed.

On appeal, the Fourth Circuit first addressed whether the district court erred in dismissing Appellants’ complaint on the basis of the political question doctrine. In addressing this issue, the court performed its analysis using only the Taylor test, which is made up of two factors— (1) the “Military Control” factor; and (2) the “National Defense Interests” factor—either one of which, if satisfied, would render the Servicemembers’ claims nonjusticiable. For purposes of the “Military Control” factor the court observed it must consider the extent to which KBR was under the military’s control. With respect to this factor, although it noted that evidence showed that the military exercised some level of oversight over KBR’s burn pit and water treatment activities, the court held more evidence was needed to determine whether KBR or the military ultimately chose how to carry out the relevant operations. With respect to the “National Defense Interests” factor, the court found that KBR’s causation defense does not require evaluation of the military’s decision making unless (1) the military caused the Servicemembers’ injuries, at least in part, and (2) the Servicemembers invoke a proportional-liability system that allocates liability based on fault. Thus, this factor did not necessarily counsel in favor of nonjusticiability.  The court, therefore, concluded that the political question doctrine did not render the Servicemembers’ claims nonjusticiable at this time.

Next, the Fourth Circuit addressed whether the district court erred in finding KBR was entitled to derivative sovereign immunity under the FTCA’s discretionary function exception. At issue was whether the government authorized KBR’s actions. As the court observed, that inquiry required the court to determine whether KBR exceeded its authority under the contract. However, at this point in the litigation, the court determined the record lacked sufficient evidence to make that determination and, therefore, held that the district court erred in granting KBR’s summary judgment motion on the basis of derivative sovereign immunity.

Lastly, the Fourth Circuit reversed the district court’s ruling that the Servicemembers’ state tort law claims were preempted under the FTCA’s combatant activities exception. The court acknowledged, however, that KBR did engage in combatant activities under the court’s analysis. With respect to the remaining inquiry, though, while it was evident that the military controlled KBR to some degree, the extent to which KBR was integrated into the military chain of command could not be determined without further discovery. Accordingly, the court vacated the district court’s decision to dismiss the Servicemembers’ claims and remanded for further proceedings.

Full Opinion

– W. Ryan Nichols

CARNELL CONSTRUCTION CO. V. DANVILLE REDEVELOPMENT & HOUSING AUTHORITY, NOS. 13-1143; 13-1229; 13-1239

Decided: March 6, 2014

After a series of mistrials, a jury finally rendered a verdict on claims of race discrimination, retaliation, and breach of contract brought by a “minority-owned” corporation surrounding the construction of a low-income housing project. On appeal, the Appellants presented a number of issues for review: (1) whether a minority owned corporation has standing to sue for race discrimination under Title VI of the Civil Rights Act of 1964 (“Title VI”); (2) whether the district court erred in awarding summary judgment dismissing one of the defendants from the alleged discrimination and retaliation claims; (3) whether the court abused its discretion in allowing certain impeachment evidence; (4) whether the court erred in deciding certain contract issues relating to Virginia’s Public Procurement Act; and (5) whether the court erred in modifying the jury’s award of contract damage.  In a lengthy opinion, the Fourth Circuit affirmed the district court’s decision in part and vacated the decision in part.

The dispute arose out of work performed by Carnell Construction Company (“Carnell”), a contractor in Danville, Virginia on the Blaine Square Project (“the project”), a large public housing venture designed to provide low-income housing to Virginia residents. The project was funded in part by a grant from the United States government to the Danville Redevelopment and Housing Authority (“Housing Authority”). Carnell was the successful bidder for an initial phase of the contract that included clearing the site, grading the land, and installing drainage and erosion systems. Carnell was a certified “minority owned business” under Virginia law because its owner was African-American. Shortly after awarding the contract to Carnell, HUD leased the project site and assigned its interest to Blaine Square, LCC (“Blaine”), a nonprofit instrumentality of the Housing Authority. Blaine agreed that the Housing Authority would continue to supervise the actual construction of the project. Carnell began work in 2008, and the relationship between Carnell and the Housing Authority deteriorated quickly as each side complained about the other’s poor performance.  After an unsuccessful mediation, the Housing Authority advised Carnell that it would not extend Carnell’s contract beyond the stipulated May 2009 completion date, requiring that Carnell remove its equipment and personnel from the project by that date, regardless of whether the work was completed. Carnell complied, but requested reimbursement for unpaid work. The Housing Authority refused to pay and declared default under Carnell’s performance bond. Carnell then filed suit based on claims of race discrimination and breach of contract. In response, the Housing Authority filed counterclaims for breach of contract. After two mistrials, the jury returned a verdict for Carnell on its breach of contract claims, but not for its discrimination claims. The district court then reduced the award for breach of contract damages. The parties filed cross-appeals.

On appeal, the Court first held that a minority owned corporation has standing to sue for race discrimination under Title VI. The Housing Authority conceded that Carnell had constitutional standing to sue, but contested its prudential standing to sue under Title VI on the grounds that Carnell was not in the “zone of interests protected or regulated by” Title VI. Under Title VI “[n]o person in the Untied States shall, on the ground of race…be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The defendants argue that Carnell, as a corporation, is not a person, and thus lacks a “race.” While the Fourth Circuit has not addressed this issue, other circuits have allowed corporations to establish a racial identity. For example, the Ninth Circuit held that a minority-owned corporation may establish an “imputed racial identity” to satisfy standing requirements. In the present case, the Fourth Circuit similarly held that Carnell had standing to bring discrimination claims under Title VI. Carnell was certified under Virginia law as a “small, women, and minority-owned business.” Carnell made this information public when it contracted to perform work for the Housing Authority. Therefore, the Fourth Circuit held that Carnell sufficiently demonstrated an imputed racial identity to satisfy standing requirements under Title VI.

Second, the Fourth Circuit held that the district court properly awarded summary judgment to Blaine on Carnell’s race discrimination claims, finding that Blaine did not engage in any of the alleged discriminatory conduct directly or as a principal for the Housing Authority. Carnell contested the district court’s finding on appeal, arguing that Blaine possessed sole control of the financing of the project and withheld payments from Carnell. The Fourth Circuit disagreed, explaining that Blaine was merely “a passive entity [that] would ensure that the checks would be written to [the Housing Authority] for purposes of paying contractors.” All decisions to withhold payments to Carnell were made by the Housing Authority. Furthermore, the court found that Blaine was not vicariously liable for the alleged discriminatory conduct of the Housing Authority because Blaine exercised no control over the Housing Authority. The agreement between Blaine and the Housing Authority grants the Housing Authority “sole responsibility for managing construction of the project as an independent contractor.” Moreover, the agreement expressly disclaims any formation of an agency relationship between the entities.

Third, the Fourth Circuit held that the district court abused its discretion by allowing defense counsel to use certain impeachment evidence in cross-examining Carnell’s president, Michael Scales. The contested evidence consisted of an unsigned proposal prepared by a marketing consulting group, which stated the consultant’s objective as to “[s]hape the initial story so that it is sympathetic to Carnell and critical of [the Housing Authority” and garner additional statewide support for Carnell. On cross-examination, defense counsel asked Scales whether he wanted to “shape” the evidence to “make out a race claim.” When Scales denied these accusations, defense counsel introduced the proposal as a prior inconsistent statement under Rule 613(b) of the Federal Rules of Evidence. The Fourth Circuit determined that the district court should have excluded the evidence under Rule 613(b) and Rule 403. First, the evidence was improper as a “prior inconsistent statement” under Rule 613(b) because there was insufficient evidence to conclude that the statement in the proposal was “reasonably attributable” to Scales. Scales denied recalling the proposal and did not sign the document. Upon signing and returning the consulting agreement to the consultants, Scales did not refer to any of the proposals. Second, the district court should have withheld the proposal under Rule 403 because the risk of unfair prejudice substantially outweighed the limited probative value of the evidence. The court found that the probative value of the proposal was minimal since the statements in the proposal were not fairly attributable to Scales. Additionally, the risk of unfair prejudice was “exceedingly high” by allowing the defense counsel to impeach Scales based on another person’s statement. Moreover, defense counsel relied on the evidence extensively at trial, even displaying a poster exhibit of the proposal during his closing argument.

Fourth and finally, the Fourth Circuit examined the competing breach of contract claims. The Fourth Circuit held that Carnell did not present sufficient evidence at trial for the court to determine that it complied with the notice requirements under Virginia’s Public Procurement Act (“VPPA”) to make claims for unpaid work. The VPPA requires that any contractor making a claim for unpaid work must provide written notice of each particular claim. In the third trial, Carnell erroneously failed to introduce evidence showing that it provided sufficient notice to the Housing Authority for its unpaid work claims. Under the VPPA, the Fourth Circuit held that Carnell could not state a claim for items of unpaid work for which it did not prove notice to the Housing Authority. Additionally, the Fourth Circuit affirmed the district court’s decision to reduce the amount of damages award under the contract for unpaid work claims pursuant to the VPPA’s limitation of the amount by which public contracts can be increased. Carnell did not contest that its contract increased more than the amount allowed under the VPPA, but rather asserts that the limitation on increase either does not apply to Carnell or, in the alternative is unconstitutional. The Fourth Circuit held that Carnell was subject to the VPPA through its participation in a public project. Furthermore, the court held that the VPPA’s limitation was neither a due process violation nor an unconstitutional taking. Finally, the court held that the district court properly denied Carnell’s claims for special damages because Carnell failed to adequately plead special damages in its breach of contract claims. Therefore, the Fourth Circuit affirmed the district court’s decision in part and reversed in part.

Full Opinion

– Wesley B. Lambert

ROSS V. EARLY, NO. 12-2547

Decided: March 5, 2014

The Fourth Circuit affirmed the district court with respect to Appellant’s constitutional and state law challenges arising from two arrests that occurred when Appellant failed to obey a police officer’s lawful enforcement of a policy restricting protected speech. The Fourth Circuit held the policy was constitutional under the reasonable time, place, and manner doctrine.

Aaron Ross (“Ross”) brought this action against Officer Wayne Early (“Officer Early”), the Mayor and City Council of Baltimore (collectively, the “City”), the Baltimore City Police Department (“BCPD), and other government officials after he was arrested twice—first on March 12, 2008 and again on March 25, 2009. The arrests took place outside the First Mariner Arena (the “Arena”) in Baltimore, Maryland when the Ringling Brothers Barnum and Bailey Circus (the “Circus”) was performing in the Arena. At the time of both arrests, Ross was participating in protest activities as a member of the People for the Ethical Treatment of Animals organization.

For a number of years, the City of Baltimore leased the Arena to the Circus annually. Due to the Arena’s central location, the sidewalks and streets adjacent to it frequently experience heavy pedestrian and automotive traffic. The Circus performances, moreover, attracted large crowds, including a number of animal welfare activists, such as Ross. During the Circus’s run, these activists engaged in various protest activities on the sidewalks contiguous to the Arena. Before 2004, the City had no official policy restricting the demonstrators’ access to the relevant streets. In March 2004, however, the Chief of the Legal Counsel Division in the City’s Law Department issued the current policy (the “Policy”) setting forth certain limitations on the location of sidewalk demonstrators prior to Circus performances. The Policy sets forth multiple designated areas where protestors should confine their protest activities on each street adjacent to the Arena. Additionally, the Policy states the problems the location restrictions seek to alleviate—primarily to eliminate congestion and allow sufficient room for Circus attendees to access the Arena. The Policy further directs police officers to issue at least two verbal warnings prior to making any arrest for failure to obey a lawful order.

On March 12, 2008 and March 25, 2009, Ross was leafleting within the prohibited area outside the Arena. On each occasion, Officer Early repeatedly warned Ross to move to the nearest designated area and, when he refused, Officer Early arrested him for failing to obey a lawful order. Ross subsequently filed suit in the district court, alleging common law and constitutional torts against Officer Early as well as claims under Section 1983 against the City, BCPD, and other government officials for violating his First and Fourth Amendment rights. The district court, applying intermediate scrutiny, upheld the Policy as a reasonable time, place, and manner restriction on protected speech, and thus entered judgment in favor of the City and BCPD. Additionally, because the court determined Officer Early was entitled to qualified immunity, the court granted Officer Early’s motion for summary judgment as to the claims against him in his individual capacity. This appeal followed.

On appeal, the Fourth Circuit primarily focused its analysis on the time, place, and manner doctrine to determine whether the Policy’s restrictions on protected speech violated the First Amendment. At the outset of its analysis, the court observed that the parties did not dispute that the Policy is content-neutral. It thus applied intermediate scrutiny, focusing its analysis, in turn, on (1) whether the Policy is narrowly tailored to serve a significant governmental interest, and (2) whether it leaves open ample alternative channels for communication of the information.

In examining the first issue, the court found that, because undisputed evidence revealed that the sidewalks surrounding the Arena suffers from severe congestion during Circus performances, and because, at least once—in the years preceding the Policy’s issuance—the presence of protestors caused a significant safety hazard, the Policy materially reduced the risks the City intends to prevent. Therefore, the court held that the Policy’s limited proscription on the locale of expressive activities is narrowly tailored to address threats to sidewalk congestion and public safety. In examining the final prong of the time, place, and manner test, the court held that the limited nature of the prohibition at issue left no doubt that the designated area afforded ample opportunity for protestors to communicate, and engage in expressive activities, with their intended audience. The court, therefore, held that the district court correctly granted summary judgment as to Ross’s First Amendment claims against the City and BCPD.

Next, the Fourth Circuit addressed Ross’s challenge that the district court improperly granted Officer Early’s summary judgment motion with respect to Ross’s First and Fourth Amendment claims on the basis of qualified immunity. Finding that Officer Early did not arrest Ross with a content or viewpoint-based discriminatory purpose, the court held that Officer Early was entitled to qualified immunity and therefore affirmed the district court with respect to both Ross’s First and Fourth Amendment claims.

Finally, the court held that the district court correctly granted summary judgment in favor of Officer Early with respect to Ross’s state law false arrest and false imprisonment claims. In so holding, the court observed that Ross failed to show that his liberty was deprived without justification. The Fourth Circuit, therefore, affirmed the judgment of the district court with respect to all claims.

Full Opinion

– W. Ryan Nichols

PISANO V. STRACH, NO. 13-1368

Decided:  February 27, 2014

The Fourth Circuit Court of Appeals affirmed the district court’s conclusion that North Carolina’s May 17 petition-filing deadline for the formation of new political parties was justified, and any burden it imposes is ameliorated by other aspects of North Carolina’s statutory framework.

North Carolina provides three ways for a candidate to appear on a general election ballot when running for a partisan, federal, state, county, or municipal office. First, a “recognized” political party may nominate candidates. Second, unaffiliated candidates may petition to appear on a general election allot. Third, and most relevant here, a “new” political party may nominate candidates.

For a new party to nominate, it must select its candidates by party convention and submit its nominees by July 1. To qualify as a new party, a group must file petitions with the State Board of Elections before 12:00 PM on June 1 in the election year in which the group desires to participate. A separate petition must be filed for each county in which the group gathers signatures. The petitioners must collectively be “signed by registered and qualified voters in North Carolina equal in number to two percent (2%) of the total number of voters who voted in the most recent general election for Governor,” with at least 200 signatures from each of at least four congressional districts. In addition to complying with the June 1 deadline, a group must submit each petition for verification to the chairperson of the county board of elections in the county where the signatures were obtained by 5:00 PM on May 17.

North Carolina held a primary election on May 8, 2012. The Republican presidential candidate was nominated in August, and the Democratic in September. The general election as held on November 6. To nominate candidates for North Carolina’s general election allot, a group needed to collect and timely submit 85, 379 signatures, a figure amounting to two percent of the total number of votes cast in North Carolina’s 2008 gubernatorial election.

On appeal, Al Pisano, Nichols Triplett, the North Carolina Constitution Party, and the North Carolina Green Party (“Plaintiffs”) alleged that the May 17 deadline violates the First and Fourteenth Amendments and the Equal Protection Clause because it severely burdens their ability to field presidential candidates. Although Plaintiffs did not challenge North Carolina’s two percent signature requirement, they argued that the deadline, in combination with the signature requirement, created an impermissible barrier to ballot access.

Plaintiffs first argued that the district court erred in denying their Rule 56(d) motion. A court may deny a Rule 56(d) motion when the information sought would not by itself create a genuine issue of material fact sufficient for the nonmovant to survive summary judgment. Plaintiffs sought the following discovery: (1) production of any state records regarding minor parties’ attempts to gain ballot access for presidential candidates in North Carolina; (2) a deposition of Gary Bartlett, then Executive Director of the State Board of Elections, to explore North Carolina’s justifications for the May 17 deadline; and (3) information from officials in other states as to the efficacy of later filing deadlines. However, the record includes information regarding other minor parties’ efforts to gain ballot access in recent years. In addition, the State Board of Elections posts the status of current statewide petitions in each county on its website. In any event, this information by itself would not create a genuine issue of material fact sufficient to preclude summary judgment, given that the question before us is principally one of law, and there is a wealth of case law assessing similar challenges. Second, the record provides justifications for the May 17 deadline. In a sworn declaration, Bartlett highlighted the problems that the state fears would arise without ballot-access requirements, including “tremendous voter confusion and chaos.” The fact that Plaintiffs believe North Carolina should say more goes to the merits of their claim—not to whether the district court properly denied the Rule 56(d) motion. Finally, the district court did not bar Plaintiffs from obtaining and presenting evidence they sought from officials in other states regarding possible alternatives to the May 17 deadline. However, Plaintiffs chose not to do so. The Fourth Circuit found no abuse of discretion on the record.

The Fourth Circuit then addressed whether the May 17 deadline violates Plaintiffs’ First and Fourteenth Amendment rights. In analyzing whether state election laws impermissibly infringe on such rights, the Supreme Court has instructed us to weigh the plaintiff’s asserted injury against the state’s interests in the rule. Election laws that impose a severe burden on ballot access are subject to strict scrutiny, and a court may uphold the restrictions only if they are “narrowly drawn to advance a state interest of compelling importance.” On the other hand, if a statute imposes only modest burdens, the state’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.

The Fourth Circuit concluded that the district court erred in relying on the Fourth Circuit decision in McLaughlin for the appropriate level of scrutiny. McLaughlin involved a significantly more restrictive statutory framework in the context of a different type of challenge and, therefore, does not mandate strict scrutiny in this case. North Carolina no longer requires groups seeking new party status to submit notarized affidavits and verification fees, nor does it impose a ten percent retention requirement. Thus, the pre-1996 history in McLaughlin is immaterial to the question at hand: whether the current statutory framework imposes a severe burden. In addition, Plaintiffs challenge the filling deadline only in the context of presidential elections and, therefore, the concern in McLaughlin about the regulations’ effect on candidates in local elections is irrelevant.

In assessing the constitutionality of the May 17 petition-filing deadline, the Fourth Circuit first addressed whether the deadline imposed a severe burden on Plaintiffs’ constitutional rights. Plaintiffs alleged that the deadline created an impermissible barrier to ballot access, specifically by preventing them from gathering signatures at the height of the presidential election season. However, North Carolina does not limit groups to a short time frame for gathering signatures, and groups are on notice of the number of signatures they need to collect three-and-one-half years before the deadline.  In addition, given that North Carolina held a primary on May 8, 2012, the May 17 deadline allowed Plaintiffs to engage voters during the height of the primary season. The cases where courts have struck down filing deadlines involve deadlines that preceded the state’s primary, whereas the deadline here falls after. The Fourth Circuit has found that election law schemes with modest signature requirements and filing deadlines falling close to or after the primary election do not impose severe burdens. And although not dispositive, Plaintiffs did not come close to meeting the other petition requirements for the 2012 general election—most notably the two percent signature requirement. By April 17, 2012, the North Carolina Constitution Party had submitted only 3,521 signatures out of the required 85,379 and the North Carolina Green Party had submitted no petitions. Therefore, the Fourth Circuit concluded the deadline did not impose a severe burden on Plaintiffs; rather, the burden imposed was modest.

Because there was no severe burden, the Fourth Circuit declined to apply strict scrutiny and, instead, simply balanced the burdens imposed against the state’s interest in regulating the election process. This interest necessarily requires the imposition of some cutoff period “to verify the validity of signatures on the petitions, to print the ballots, and, if necessary, to litigate any challenges.” Admittedly, a state has a less important interest in regulating Presidential elections than statewide or local elections, because voters beyond the State’s boundaries will largely determine the outcome of the former. However, states still maintain an interest in regulating presidential elections. Therefore, the Fourth Circuit concluded that North Carolina’s choice of May 17 as the operative deadline outweighed the modest burden imposed on Plaintiffs.

Full Opinion

– Sarah Bishop

STEVENSON V. CITY OF SEAT PLEASANT, NO. 12-2047

Decided: February 21, 2014

The Fourth Circuit held that Marques Stevenson (Stevenson), Gary Barnett (Barnett), and Christopher Howard (Howard) (collectively, the appellants) waived any challenge to the United States District Court for the District of Maryland’s partial or total dismissal of claims against Officer LaVance Lowery (Lowery), Officer Rickie Adey (Adey), Prince George’s County, Maryland (County) (collectively, the appellees), and the City of Seat Pleasant, Maryland (Seat Pleasant); that the district court correctly determined, after the trial, that the appellants sufficiently stated a cause of action for bystander liability in their complaint—and that the district court’s previous ruling on summary judgment, in which the court reached the opposite conclusion, was therefore erroneous; that because the district court’s previous summary judgment ruling was erroneous, the court’s denial of the appellants’ motion under Federal Rule of Civil Procedure 60(b) did not warrant consideration on appeal; and that the district court did not abuse its discretion by denying the appellants’ Rule 59(e) motion.  The Fourth Circuit therefore affirmed the judgment of the district court in part, reversed it in part, and remanded the case with instructions.

On July 8, 2007, police officers—including Lowery, who works for Seat Pleasant, and Adey, who works for the County—allegedly attacked the appellants in an unprovoked assault outside a County nightclub.  In July 2009, the appellants sued Lowery, Adey, the County, and Seat Pleasant, suing Lowery and Adey in their official and individual capacities and using the theory of vicarious as to the County and Seat Pleasant.  The appellants’ complaint contained counts for, inter alia, excessive force and police brutality, battery, deprivation of civil rights under 42 U.S.C. § 1983, and “a count under Articles 245 and 26 of the Maryland Constitution.”  Each defendant moved for partial or complete dismissal of the applicable counts; the appellants did not oppose these motions.  All of the counts were dismissed except the following: the § 1983 count against Lowery, the excessive force and battery counts against Adey and the state constitutional count against the County.  The district court dismissed all the counts against Seat Pleasant.  The appellees then moved for summary judgment.  At a hearing on December 21, 2010, the district court granted the appellees’ motions, except for Stevenson’s § 1983 claim against Lowery.  In addition to its assessment of the other counts, the district court found that the appellants had not stated a cause of action under the theory of bystander liability.  The district court placed its finding on summary judgment in a written order, which it entered on December 22, 2010.  In January 2011, the appellants moved to alter or amend the district court’s summary judgment ruling under Rule 59(e).  The appellants disputed, inter alia, the district court’s conclusions with regard to bystander liability.  On May 19, 2011, the district court denied the motion.

In the subsequent jury trial, the district court allowed Stevenson’s attorney to mention bystander liability during closing arguments.  After the jury found that Lowery violated Stevenson’s constitutional rights through the use of excessive force, Lowery moved for judgment as matter of law under Rule 50(b).  He argued that bystander liability had not been pleaded—and the reference to this theory during closing arguments was therefore improper.  However, at a hearing in January 2012, the district court found that the appellants’ complaint did state a cause of action for bystander liability.  The district court then ordered a new trial under Rule 50(b); however, Lowery and Stevenson settled prior to trial.  In May 2012, the appellants made a Rule 60(b) motion to vacate the district court’s order of May 29, 2011, with regard to bystander liability.  The district court denied the motion. In August 2012, the district court “entered an order respecting Officer Lowery and Stevenson’s settlement agreement and dismissing all claims.”  On appeal, the appellants disputed the district court’s decisions with regard to the appellees’ motions to dismiss, the appellee’s motions for summary judgment, the Rule 60(b) motion, and the 59(a) motion.

The Fourth Circuit declined to consider the district court’s grant of the various motions to dismiss, as the appellants did not present arguments on this issue in their brief.  With regard to summary judgment on the issue of bystander liability, the Fourth Circuit noted that, in paragraph 35 of the appellants’ complaint—which discussed the § 1983 count—the appellants stated that Lowery and Adey “did . . . commit or allow to be committed an unreasonable seizure . . .” (emphasis added).  The Fourth Circuit found inapposite the appellants’ failure to use the phrase “bystander liability” in their complaint.  The Fourth Circuit also rejected the appellees’ contention that they were not put on notice due to the lack of a bystander liability claim in the appellants’ discovery responses, attributing this failure to the appellees’ line of questioning and noted that the complaint—and not the parties’ discovery responses—is the source of “fair notice.”  However, the Fourth Circuit also noted that the reversal of summary judgment would only affect Lowery, as “he is the only defendant against whom the § 1983 count survived dismissal.”  The Fourth Circuit then found that there was no reason to consider the appellants’ Rule 60(b) motion due to its conclusion on the underlying summary judgment issue.  However, the Fourth Circuit noted that the appellants also appealed the district court’s conclusions—with regard to summary judgment and the Rule 59(e) motion—on Adey’s status as a principal actor and the County’s vicarious liability for Adey’s alleged assault.  On this issue, the Fourth Circuit noted that the appellants relied principally on affidavits—especially Barnett’s affidavit—in support of their points, and that Barnett’s affidavit contained inconsistencies and contradictions of earlier testimony.  Because the Fourth Circuit affirmed the summary judgment in favor of Adey, it also found that the County could not be held liable under a theory of vicarious liability.  Also, pursuant to the evidentiary findings of the district court, the Fourth Circuit affirmed the summary judgment in favor of Lowery with regard to his purported role as a principal actor pursuant to the § 1983 claim—but only with regard to Barnett and Howard.  This left room for reconsideration, on remand, “of Officer Lowery’s and Howard and Barnett’s summary judgment papers pursuant to a framework in which bystander liability was properly pleaded.”

Full Opinion

– Stephen Sutherland

AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA V. TATA, NO. 13-1030

Decided: February 11, 2014

The Fourth Circuit held that the First Amendment prohibited North Carolina from allowing its drivers to purchase “Choose Life” license plates while refusing to offer a pro-choice alternative.

In 2011, North Carolina enacted a law that authorized many “Special Registration” license plates, including a “Choose Life” license plate. However, the law authorized no alternative pro-choice specialty license plate. Under North Carolina law, the Department of Motor Vehicles (“DMV”) may only issue a specialty plate after receiving three hundred applications from individuals interested in acquiring the plate. Once the DMV issues the plate, any driver may purchase it from the DMV. In addition to the “Choose Life” plate, there are over two hundred other options to choose from. According to North Carolina, the specialty plate program “allows citizens with common interests to promote themselves and/or their causes.” After refusing to offer a specialized pro-choice license plate, North Carolina vehicle owners who wanted the plate and the ACLU (collectively “Plaintiffs”) filed suit. The district court granted a preliminary injunction before granting summary judgment for the Plaintiffs and permanently enjoining the “Choose Life” plate. North Carolina appealed.

On appeal, North Carolina did not dispute that it engaged in “viewpoint discrimination” by not providing a competing pro-choice license plate. Rather, North Carolina argued that it was free to discriminate based on viewpoint because the license plate was covered under the “government speech doctrine.” Under this doctrine “[a] government entity has the right to speak for itself. It is entitled to say what it wishes, and to select the views that it wants to express.” Conversely, the Plaintiffs argued that the license plate speech implicates private speech concerns and its prohibition on viewpoint discrimination. Because there was no dispute that the license plate was viewpoint discrimination that is prohibited under private speech concerns, the only issue for the Fourth Circuit was whether the “Choose Life” license plate was government speech or private speech. The court held that the license plate was a combination of government and private speech, but that it mainly implicated private speech concerns. The court dismissed North Carolina’s argument that the party having “control of the message” was the determinative factor, and instead followed its “instructive” four-factor test to determine whether the license plate was government or private speech.

The Fourth Circuit held that the first factor, “the central purpose of the program in which the speech in question occurs” weighed slightly in favor of concluding that the license plate constituted private speech. The court determined that the purpose of the license plate program was “to allow North Carolina drivers to express their affinity for various special interests, as well as raise revenue for the state.” While the purpose implicates both government and private speech concerns, the Fourth Circuit held that the purpose weighed primarily in favor of private speech because it was impossible to claim that the over two hundred options for specialty license plates, ranging from controversial confederate flag logos, to religious symbols, to university emblems all “constitute North Carolina’s—and only North Carolina’s—message.” Next, the court held that the second factor, “degree of editorial control exercised by the government or private party over the content” weighed in favor of the government because the government has “complete editorial control” over determining whether or not to make a particular license plate. Then, the court held that the third factor, “the identity of the literal speaker,” weighed in favor of private speech. Any typical driver would expect that the message selected on one’s license plate is the message of the vehicle’s owner. Even though the license plates are technically state property, the court held that “the driver… is the ultimate communicator.” Finally, the court held that the fourth factor, “whether the government or the private party bears the ultimate responsibility for the speech’s content,” similarly weighed in favor of private speech. The Fourth Circuit emphasized that when a driver purchases a specialty license plate, the driver essentially “engages the government to publish his message” and not the other way around. Furthermore, without the individual’s action collecting three hundred others to seek the plate, the specialty license plate would never exist. Additionally, once the plate is produced, those seeking it must pay an additional fee, above and beyond the cost of a traditional license plate. Therefore, with three out of four factors weighing in favor of private speech, the Fourth Circuit held that the “Choose Life” specialty license plate was a form of private speech on which the government could not practice viewpoint discrimination.

The court also noted that its decision was largely in accord with its sister circuits, with only the Sixth Circuit in disagreement. Furthermore, while the court explained that under its current system, North Carolina could not offer the “Choose Life” license plate without a pro-choice alternative, North Carolina may alternatively choose to exclude any representations regarding such a controversial political and moral issue from its license plates entirely without any First Amendment violation.

Full Opinion

– Wesley B. Lambert

UNITED STATES V. KEITA, No. 12-4957

Decided: February 6, 2014

The Fourth Circuit Court of Appeals affirmed the defendant’s conviction for various charges related to credit and debit card fraud. The Fourth Circuit rejected the defendant’s arguments that the district court: should have dismissed the government’s case based on the Speedy Trial Act; erred in allowing certain business records into evidence; and miscalculated the loss at sentencing.

On January 31, 2012, pursuant to a search warrant based on a credit card fraud investigation, federal agents searched the residence of Defendant Mohammed Keita (“Defendant”). There, they seized laptop computers containing stolen credit card information, credit and debit cards bearing Defendant’s name but re-encoded with stolen credit card information, numerous credit card receipts, and a device for re-encoding credit cards.

Defendant first argued that the district court erred in denying his motion to dismiss the indictment based on asserted violations of his rights under the Speedy Trial Act. The Speedy Trial Act provides that “any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.” An indictment filed in violation of the thirty-day time limit must be dismissed. However certain delays shall be excluded when calculating the thirty-time period, such as those resulting from plea negotiations or from a continuance. Here, Defendant was arrested on January 31, 2012 and, therefore, the government was required to file an indictment by March 1, 2012. However, the parties twice jointly requested additional time and the district court accordingly granted two continuances: The first secured a continuance until March 15, 2012, and the second secured a continuance until April 5, 2012. Applying the exclusions, the speedy trial clock began on February 1 (the day after Defendant’s arrest) and stopped on February 10 (when the first continuance was granted). It resumed on April 6 (when the second continuance lapsed) and stopped again on April 9 (when the indictment was filed). Thus, a total of twelve non-excluded days elapsed, well within the Speedy Trial Act’s thirty-day limit.

Defendant next argued that the introduction of business records relating to cardholders who did not testify at trial violated his Sixth Amendment right to confrontation and that those records were irrelevant. In accordance with the Confrontation Clause, testimonial statements of witnesses absent from trial are admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. But, business and public records are generally admissible absent confrontation because they are not testimonial. Business records are generally not testimonial if they are created for the administration of an entity’s affairs rather than for proving some fact at trial. Here, American Express maintains certain records called common point of purchase reports, which are internal documents identifying customer accounts that have been compromised. American Express creates the reports daily as part of its regular business practices and sends them throughout the global security team throughout the country. Many of the business reports do not mention individual cardholders, let alone contain statements made by cardholders. Therefore, the Fourth Circuit concluded that the reports were not were not testimonial. Defendant further objected to the business records as irrelevant, because they were not probative of the aggravated identity theft charges, and unfairly prejudicial, because they identified cardholders other than those named in the indictment. To prove the three counts of access device fraud, the government had to show that Defendant “knowingly and with intent to defraud” used an “unauthorized access device” to “obtain anything of value aggregating $1,000 or more” for each of the three one-year periods charged in the indictment. Thus, the Fourth Circuit concluded that even if the business records were not probative of the identity theft charges, they were probative of the access device fraud charges.  The Fourth Circuit further concluded that the evidence was not unduly prejudicial under Rule 403, which excludes evidence only if any unfair prejudice substantially outweighs its probative value. Based on the substantial evidence presented by the government, which included videotapes and photographs of Defendant using the cloned credit cards, as well as highly incriminating evidence seized from Defendant’s laptop computers, the Fourth Circuit concluded that introduction of the business records posed no disproportionate risk of inflaming the passions of the jury to “irrational behavior.”

Finally, the Defendant asserted that the district court erred in calculating the amount of loss at sentencing. Each loss attributed to Defendant was supported by videotape evidence. According to those calculations, the actual loss caused by Defendant’s conduct was $117,313, and the amount of intended loss, where Defendant swiped a card but it did not go through, was $19,525.30. Therefore, the district court added the two numbers together and found that the government established $136,838.30 as the amount of loss. Therefore, the Fourth Circuit concluded that factual findings regarding the amount of loss were supported by a preponderance of the evidence. The court need only make a reasonable estimate of the loss, and it could include evidence of unauthorized transactions to which no cardholder testified.

Full Opinion

– Sarah Bishop

UNITED STATES V. MOSTELLER, NO. 12-4434

Decided: February 4, 2014

The Fourth Circuit Court of Appeals affirmed the district court’s judgment charging Megan Hanson Mosteller (“Mosteller”) with theft of government funds. The Fourth Circuit held that although Mosteller’s attempt to waiver her rights under the Speedy Trial Act (“the Act”) was null and void, she was not entitled to assert for the first time on appeal that a violation of the Act occurred, based on the plain language of the Act. Therefore, in view of this waiver imposed by statute, the Fourth Circuit may not review for plain error Mosteller’s argument asserting a violation of the Act.

In September 2007, Megan and Jeremy Lewis Mosteller, Jr. (“Jeremy”) were married. In March 2008, Jeremy committed suicide. After Jeremy’s death, Megan Mosteller applied for and began receiving “dependency and indemnity compensation” as Jeremy’s surviving spouse from the Department of Veteran Affairs (“VA”). She was required to inform the VA of any change in marital status. Mosteller also applied for and received education benefits, for which she was obligated to notify the VA if she ceased attending classes or remarried. In August 2008, Mosteller remarried. She did not inform the VA of her change in marital status and continued to receive surviving spouse benefits until October 2010. Additionally, Mosteller did not inform the VA that after receiving the education benefits, she had not attended any classes. Mosteller was charged with one count of theft of government funds. Notably, the indictment charged her with theft of surviving spouse benefits but did not include any reference to education benefits.

Mosteller’s first trial began on November 11, 2011. When evidence was introduced at trial regarding the education benefits, for which she was not charged, Mosteller moved for a mistrial. The court decided to grant a mistrial on the condition that Mosteller waive her rights under the Act. Two weeks later, the grand jury issued a superseding indictment, charging Mosteller based on her receipt of both the education and the surviving spouse benefits. Although Mosteller’s second trial began on February 21, 2012, well more than 70 days after the mistrial, Mosteller did not move to dismiss the superseding indictment based on a violation of the Act.

On appeal, Mosteller argued that the district court erred in requiring that she waive her rights under the Act as a condition of granting a mistrial, and that her rights under the Act were violated.

The Act generally requires that a trial begin “within 70 days of the filing of an information or indictment or the defendant’s initial appearance.” Or, in the event of a mistrial, a new trial must begin within 70 days “from the date the action occasioning the retrial becomes final.” Under the Act, if a defendant makes a timely motion to dismiss, the remedy for a violation of the Act is dismissal of the information or indictment. Significantly, the Act contains a waiver provision stating that the “failure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.”

The Fourth Circuit initially agreed with Mosteller that the district court erred in requiring that she agree to waive her rights under the Act as a condition of granting the mistrial. Based on the Supreme Court’s holding in Zedner, a defendant may not waive application of the Act for a violation that has not yet occurred. However, the Zedner court further explained that although a defendant may not waive future application of the Act, a waiver nevertheless will result by operation of the statutory waiver provision if the defendant fails to move to dismiss the indictment before the new trial begins. Therefore, the Fourth Circuit concluded that Mosteller’s failure to make a timely motion to dismiss an indictment before the start of the new trial constituted a waiver of the defendant’s right to assert a violation of the Speedy Trial Act, based on Zedner.

However, the Fourth Circuit for the first time addressed the question whether plain error review was available to consider asserted violations of the Act not timely raised in the district court. The Fourth Circuit noted that the express language of the waiver provision states that the failure to file a motion to dismiss before trial “shall” constitute a “waiver of the right to dismissal” under the Act. Based on the unambiguous terms of the statute, “waiver of the right to dismissal” is the only possible outcome of a defendant’s failure to file a timely motion to dismiss under the act. Therefore, because the Act specifies that such a “waiver” occurs when a defendant fails to timely assert a Speedy Trial Act violation in the district court, the Fourth Circuit concluded it was not permitted to conduct any appellate review, for plain error or otherwise, of Mosteller’s claim.

Full Opinion

– Sarah Bishop

UNITED STATES OF AMERICA V. HASSAN, NOS. 12-4601; 12-4603; 12-4607

Decided: February 4, 2014

Three defendants, Omar Hassan, Ziyad Yahi and Hysen Sherifi (collectively “Defendants”) were tried jointly in the Eastern District of North Carolina and convicted of several offenses arising from terrorist activities.  After numerous challenges, the Fourth Circuit affirmed the conviction and sentence.

Defendants’ offenses stem from a conspiracy to commit terrorist acts orchestrated by Daniel Boyd (“Boyd”). Boyd pled guilty to the crimes and, as a part of his plea agreement, testified against Defendants. Boyd spent time in his early life at a training in Pakistan and Afghanistan run by Osama Bin Laden. Eventually, Boyd settled with his family in Raleigh, North Carolina. By 2004, Boyd was fully immersed in radical Islam and disassociated himself from the mainstream Islamic community. He began meeting with others at his Raleigh home and at a grocery store he owned and operated to discuss his violent religious views. Boyd explained that “to him, jihad required ‘doing something to fulfill [his] obligation in Islam.’” Boyd and Defendants met numerous times from 2004 to 2009 to discuss ways to fulfill this objective. The FBI initiated an investigation of Boyd in 2005, and two federal agents developed a close personal relationship with Boyd, with Boyd eventually helping one agent obtain a passport to travel abroad to engage in violent jihad. These federal agents provided much of the evidence necessary to capture Boyd and the Defendants.

Defendant Yaghi met Boyd in 2006 when Yaghi was just eighteen years old. Yaghi asked Boyd about his time in Afghanistan and the two developed a close personal relationship. The men regularly met and discussed Boyd’s experiences in the Middle East and his views on Islam and violent jihad. Yaghi sought Boyd’s advice about traveling to Jordan and asked Boyd where to find the “best brothers,” in an effort to join the violent Islamic resistance movement in Jordan. Before traveling to Jordan in 2006, Yaghi met with Boyd and others and had a “joyous send-off” where well-wishers conveyed messages to Boyd, encouraging him to make his way to the battlefield and engage in jihad against the “kuffar” (non-Muslims). Additionally, Yaghi expressed an interest in finding a “wife” overseas, a term synonymous with engaging in violent jihad. Yaghi was not successful in engaging in jihad while overseas, but he did post numerous statements on Facebook reflecting his sympathies to the violent jihadist ideology, particularly Anwar al-Awlaki, a prominent American born al-Qaida militant. After returning, Yaghi spoke to the Islamic Association of Raleigh “promoting jihad and the corresponding moral obligation to commit violence against non-Muslims.”

While overseas, Yaghi also kept in touch with Defendant, Hassan. The two primarily talked through Facebook, frequently posting vulgar rap songs and poems about their animosity toward the non-Muslim Kuffar. After returning from Jordan, Yaghi introduced Hassan to Boyd and the three men discussed their desire to engage in violent jihad around the world. In fact, when Boyd traveled to Israel and Palestine in 2007, Yaghi and Hassan sought to travel with Boyd and his family. Boyd declined, but helped the men obtain plane tickets to travel to the Middle East to engage in jihad. Hassan and Yaghi also assisted Boyd in creating a bunker beneath Boyd’s home to conceal his large stockpile of weapons. While abroad, Boyd claims that rumors circled regarding his involvement in violent jihad. Boyd learned that Hassan’s father was particularly troubled by the rumors and had a heated discussion with Boyd regarding his son’s whereabouts. After the 2007 trip, Yaghi and Hassan remained close friends, but their contacts with Boyd diminished. In 2009, Yaghi and Hassan were arrested on unrelated charges. While detained, Hassan asked his paramour to contact al-Awlaki to seek advice on his behalf and to remove some of Hassan’s postings on Facebook related to violent jihad.

In March 2008, Boyd met Defendant Sherifi, often discussing shared views of violent jihad and that dying as a martyr was an important goal for a good Muslim. Sherifi, Boyd and others made regular efforts to raise money to support jihadist causes. In June 2008, Sherifi gave Boyd $500 “for the sake of Allah.” Shortly before his arrest, Sherifi received a $15,000 check from a man who attended the same mosque as Sherifi to contribute to the cause. When Sherifi encountered difficultly traveling, Boyd suggested that “if Sherifi could not travel, he should ‘make jihad’ in the United States.” Eventually, Sherifi traveled to Kosovo and developed a relationship with a FBI informant. During Sherifi’s relationship with the informant, Sherifi provided literature and videos, including one depicting a beheading. Sherifi explained that beheading was what happened to those who leave the Islamic religion. Sherifi returned to North Carolina to save money to buy a family farm is Kosovo to help other jihadists on the battlefield. As a method of saving money, Sherifi worked delivering medical supplies to Fort Bragg Army Post in North Carolina. Sherifi boasted about the ease of accessing the military base as a military truck driver. Boyd and Sherifi then identified Quantico Marine Corps Base in Virginia as a target. They discussed the possibility of kidnapping a Marine officer for ransom to seek the release of an Islamic scholar imprisoned in the United States. As part of the kidnapping, Boyd suggested cutting off the officer’s finger and sending it to the other officials so that they would “know it was him.” In 2009, Sherifi participated in two weapons training sessions in Caswell County, North Carolina on a rural property actually owned by the United States government and under heavy surveillance. Shortly after the second training session, the Defendants were arrested.

After a lengthy trial, the Defendants were convicted and sentenced. Defendants appealed the conviction and sentence to the Fourth Circuit on several grounds. First, Defendants argued that their conviction could not stand because the district court committed reversible error in instructing the jury on the First Amendment. Defendants claimed that they were prosecuted “purely for their offensive discourse” and that they “never agreed to take action in connection with their beliefs.” The Fourth Circuit held that the district court did not err in dismissing the Defendants’ First Amendment defense. In this case, the Defendants’ actions went far beyond speech, committing many overt acts in furtherance of the conspiracy. The trial court adequately charged the jury regarding the Defendants’ rights to speak freely and exercise their religion under the First Amendment, but the Defendants’ were not prosecuted for their speech. Rather, the Defendants were convicted for acts far beyond their speech, including traveling abroad to engage in violent jihad, recruiting others, and engaging in extensive weapons training.

The Defendants also raised a number of evidentiary issues on appeal. The Fourth Circuit dismissed the Defendants’ claims on all counts. First, the Fourth Circuit affirmed the district court’s allowance of the testimony of the government’s expert to explain various aspects of Islamic extremism. The court explained that the expert’s extensive knowledge of Islamic phrases and of the structure, recruiting methods, and leadership of Islamic extremist groups likely helped the jury understand many of the unfamiliar facts of the case.

Second, Defendants Hassan and Yaghi objected to the presentation of exhibits consisting of Facebook pages and videos hosted on YouTube, arguing that it was not properly authenticated and violated the rule against hearsay. The Fourth Circuit disagreed, ruling that the information contained on the web was self-authenticating and admissible as business records. All information was accompanied by a certification of records custodians verifying that the sites were maintained as business records in the course of regularly conducted business activity. Hassan additionally argued that allowing the presentation of certain training videos to the jury while refusing to admit his related comments under his video violated the rule of the completeness. The video at issue contained numerous quotations suggesting Hassan’s terrorist sympathies. However, Hassan’s lawyer sought to introduce a comment that Hassan posted under the video stating that he “does not support terrorists.” The Fourth Circuit held that there was no violation of the rule of completeness by refusing to also introduce the subsequent exculpatory statements and that the additional comments violated the rule against hearsay. Furthermore, the court affirmed the use of a cell phone video of Hassan using a firearm at an outdoor location near the Islamic center in Raleigh in 2009, determining that it was relevant to show Hassan’s weapons training and his continued involvement in the terrorist conspiracy. In fact, on cross-examination, a government witness readily admitted that the mere possession or firing of the rifle was not illegal.

Third, the Defendants’ argued that the district court improperly allowed Boyd to present lay opinion testimony regarding his understanding of Defendants’ statements during face-to-face and email conversations. The Fourth Circuit found that Boyd’s opinion testimony was permissible under Federal Rule of Evidence 701. Boyd’s testimony was based purely on his perception after consistent contact with the witnesses. Furthermore, the testimony was helpful to assist the jury in understanding many words associated with violent jihad of which the jury is likely unfamiliar.

Next, the Defendant Yaghi asserted that district court erred by allowing the government to present evidence obtained pursuant to Foreign Intelligence Surveillance Act (FISA) because there was no probable cause for the government to believe that Yaghi was an agent of a foreign power, as required by FISA. The Fourth Circuit disagreed, citing the government’s strict adherence with all formal requirements under FISA. Moreover, after an in camera review of the documents, the court determined that the government had sufficient probable cause to suspect that Yaghi was an agent of a foreign power.

As their final evidentiary challenge, the Defendants argued that there was insufficient evidence to support their convictions. The court conceded that while a majority of the evidence was circumstantial, the evidence against the Defendants was substantial enough to support the conviction. To support the conviction of Defendant Yaghi, the court explained that the substantial evidence supporting the jury’s conviction included, inter alia, seeking out Boyd at as Islamic center to exchange views on radical Islam, traveling to the Middle East with the expressed intention to commit violent jihad, recruiting other to the terrorism conspiracy, and violent Facebook messages promoting radical jihadist beliefs. Additionally, the jury had sufficient evidence to conclude that Sherifi was involved in the terrorism conspiracy alleged, including, inter alia, the sharing of a violent Islamist ideology with Boyd, openly advocating for the overthrow of United States law in favor of Shari’ah Law, traveling to Kosovo for the purpose of “being closer to the battlefield,” participation in firearms training with like-minded individuals, assisting Boyd in building a bunker to store Boyd’s weapons arsenal, his attempt to raise funds to purchase a farm to aid Islamic terrorists in the “battlefields” of Kosovo, and his efforts relating to targeting an American Military base for violent jihad. Finally, the court found that there was sufficient evidence for the jury to conclude that Hassan entered into the terrorism conspiracy, such as, regular contact with Boyd, seeking assistance to travel abroad to the Middle East to participate in jihadist efforts, discussion with Boyd about “killing and maiming,” participation in weapons training, the posting of the physical training video showing his determination to train for violent jihad, his contacts with Anwar al-Awlaki, and his online posting showing support for car bombings and other forms of violent jihad.

Finally, the Fourth Circuit affirmed the sentences imposed by the district court. The court held that the district court properly imposed the “federal crime of terrorism” sentencing enhancement under the federal sentencing guidelines. In order to impose the terrorism enhancement, the court must conclude that the defendant committed a “federal crime of terrorism,” defined as, inter alia, actions “calculated to influence or affect he conduct of government by intimidation or coercion, or to retaliate against government conduct.” The district court found that the Defendants “became part of a loose group of conspirators whose goal was to kill non-Muslims.”  Based on the considerable evidence presented, the court affirmed the conviction, the sentencing, and the terrorism enhancement.

Full Opinion

– Wesley B. Lambert

WALL V. WADE, NO. 13-6355

Decided: February 3, 2014

The Fourth Circuit held that (1) the Red Onion State Prison’s (ROSP) decision to abandon its policy of requiring prisoners to present physical indicia of Islamic faith to qualify for special Ramadan meals did not moot Gary Wall’s (Wall) claims for equitable relief under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq., and (2) that the defendant officials were not entitled to qualified immunity with regard to Wall’s claim for damages under the First Amendment.  The Fourth Circuit therefore vacated the decision of the United States District Court for the Western District of Virginia and remanded the case to the district court.

Wall, a member of the Islamic faith, is a state prisoner at ROSP.  In 2008 and 2009, he participated in Ramadan while in custody: prison officials provided him with special meals prior to sunrise and after sunset.  Before 2010, ROSP’s Muslim inmates simply had to sign up to partake in Ramadan observance.  However, after ROSP officials determined that many participating inmates were not actually Muslims, ROSP created a new policy for 2010 (the 2010 Ramadan policy): this year, inmates “had to provide some physical indicia of Islamic faith, such as a Quran, Kufi, prayer rug, or written religious material obtained from the prison Chaplain’s office” to participate in Ramadan.  When Wall was asked by three of the defendant officials to provide such evidence of the sincerity of his beliefs, he could not do so: Wall told the officials that his possessions had been lost when he was transferred to ROSP, and showed one of the officials a judgment against the state indicating that the Virginia Department of Corrections (VDOC) had lost his belongings.  Wall also told the officials that he had participated in Ramadan in the two previous years and produced documentary evidence that he was receiving “common fare” meals,” in accordance with his religious beliefs.  However, the officials removed Wall from the list of prisoners participating in Ramadan.  Wall filed an informal complaint explaining his situation, but ROSP’s food services manager simply reiterated the new policy.  Wall subsequently filed a formal grievance; however, this grievance was also denied.  Wall was ultimately forbidden from observing Ramadan in 2010.

Wall filed a lawsuit under the RLUIPA and 42 U.S.C. § 1983, alleging, inter alia, violations of RLUIPA and the First Amendment and seeking equitable and monetary relief.  Wall was subsequently transferred to another facility.  After his transfer, the district court granted the defendants’ summary judgment motion, holding that Wall’s claims for equitable relief were mooted after the transfer and that the defendants were entitled to qualified immunity with regard to Wall’s damages claim.  Wall was transferred back to ROSP after the district court issued its decision; according to the defendants, ROSP had since abandoned the 2010 Ramadan policy.

On appeal, the Fourth Circuit found that, under Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, the defendants could not meet their burden of showing that it is “absolutely clear” that the VDOC would not reinstate the 2010 Ramadan policy.  With regard to qualified immunity, the Fourth Circuit noted the defendants’ concession that the 2010 Ramadan policy resulted in a substantial burden on Wall’s religious freedom; in addition, the Fourth Circuit found that the 2010 Ramadan policy was not “reasonably adapted to achieving a legitimate penological objective,” Lovelace v. Lee, 472 F.3d 174, as it did not satisfy the four factors from Turner v. Safley, 482 U.S. 78 (1987).  The Fourth Circuit also found that Wall’s right to observe Ramadan was clearly established under Lovelace, and that reasonable officials in the defendants’ position would not have “felt it permissible to apply the policy in so strict a fashion.”

Full Opinion

– Stephen Sutherland

Drager v. PLIVA USA, Inc., No. 12-1259

Decided: January 28, 2014

The Fourth Circuit held that the United States District Court for the District of Maryland did not abuse its discretion by denying Shirley Gross’s (Gross) request to amend her complaint, and that the district court did not commit error by finding Gross’s state law tort causes of action to be preempted by the Federal Food, Drug, and Cosmetics Act (FDCA), 21 U.S.C. §§ 301 et seq.  The Fourth Circuit therefore affirmed the judgment of the district court.

Gross was prescribed the drug Reglan in 2006.  Reglan, a brand of metoclopramide, is “used to treat gastroesophageal reflux disease and other ailments.”  Gross also took a generic metoclopramide produced by PLIVA USA, Inc. (PLIVA) for ten months.  Gross developed permanent injuries as a result of her long-term use of metoclopramide.  In January 2010, Gross sued PLIVA and certain manufacturers of brand name Reglan, alleging “state law claims of negligence, breach of warranty, fraud and misrepresentation, strict liability, and failure to warn.   In November 2010, the district court dismissed Gross’s claims against the brand name producers; in April 2011, the district court stayed the proceedings against PLIVA pending the decision of the Supreme Court in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567.   The district court lifted the stay after the Supreme Court issued its decision in Mensing.  PLIVA then filed motion for judgment on the pleadings, arguing that under Mensing, the FDCA preempted Gross’s claims.  In her response to this motion, Gross asked the district court for leave to amend her complaint, seeking to make allegations “that PLIVA violated a state law duty by failing to update its warnings to include changes made by brand name manufacturers in 2004.”  The district court granted PLIVA’s motion in November 2011 and denied Gross’s request to amend her complaint.  Gross then filed a motion to alter or amend the judgment; the district court denied the motion in January 2012.  Gross died during the pendency of the present action, and Arthur L. Drager (Drager) continued the case as a personal representative for her estate.  On appeal, Drager argued that the district court abused its discretion by denying Gross’s request to amend her complaint; Drager further contended that the district court committed error by finding Gross’s state law tort causes of action to be preempted by the FDCA.

With regard to the district court’s denial of Gross’s request to amend her complaint, the Fourth Circuit noted that Gross never actually filed a motion to amend or a proposed amended complaint.  With regard to Drager’s contentions regarding Gross’s state tort claims, the Fourth Circuit noted that, under Mensing and Mutual Pharmaceutical Co., Inc. v. Bartlett, 133 S. Ct. 2471, manufacturers of generic drugs cannot—under the FDCA—unilaterally change their labeling, change their product formulations, be required to leave the market, or accept liability for state torts.  The Fourth Circuit then found that the district court’s failure to conduct a full preemption analysis did not constitute reversible error.  With regard to Gross’s negligence claims, the Fourth Circuit found it questionable as to whether Maryland recognizes “specific causes of action for negligent testing, inspection, and [post-market] surveillance”—and that, even if Maryland recognizes a general duty to protect consumers from injuries resulting from negligent marketing and sales, a manufacturer of generic drugs with a product that is unreasonably dangerous as sold could not satisfy the general duty without taking one of the four prohibited actions from Mensing and Bartlett.  With regard to Gross’s strict liability claims, the Fourth Circuit found that Drager’s arguments were based on the “stop selling” rationale prohibited by Bartlett; the Fourth Circuit also found the difference between the state law method of assessing the unreasonableness of a products’ danger at issue in Bartlett (risk utility) and at issue under Maryland law (consumer expectations) immaterial.  Next, the Fourth Circuit found that PLIVA breached the implied warranty of merchantability and the implied warranty of fitness for a particular purpose by selling metoclopramide—but that PLIVA’s only method of avoiding liability for breach of these warranties was leaving the market.  Furthermore, while Drager contended that breach of express warranty is a violation of contract law—and therefore not preempted by the FDCA—the Fourth Circuit noted that “the content of generic drug manufacturers’ product descriptions and other assertions is mandated by federal law,” and found that PLIVA could only avoid liability for breaching this warranty by exiting the market.  Lastly, with regard to Gross’s allegations regarding negligent misrepresentation and fraudulent concealment of safety information, the Fourth Circuit found that—assuming PLIVA made false or misleading representations—PLIVA’s only recourse would be to exit the market or accept state tort liability.

Full Opinion

– Stephen Sutherland

Montgomery County v. Federal National Mortgage Association, Nos. 13-1691; 13-1752

Decided: January 27, 2014

The Fourth Circuit combined two similar cases from the district courts of South Carolina and Maryland to consider whether the Federal National Mortgage Associate (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) are exempt from paying state and local taxes on the transfer of real property.  Both district courts held that Fannie Mae and Freddie Mac were exempt from paying transfer taxes. The Fourth Circuit affirmed. In addition, the Fourth Circuit held that Congress acted within its power under the Commerce Clause in exempting Fannie Mae and Freddie Mac from property transfer taxes.

During the Great Depression, Congress created Fannie Mae to provide banks with more capital for mortgage lending with the intent that additional capital would increase credit stability and to provide additional access to residential mortgages throughout the country. In 1970, Congress established Freddie Mac as a competitor to Fannie Mae, with similar purposes. Fannie Mae and Freddie Mac met these goals by purchasing mortgages originated by third-party lenders, pooling the mortgages into securities, and then selling those mortgage-backed securities to fund further purchases. Ideally, these activities promote access to mortgage credit and stabilize the residential lending market. To help accomplish their goals, Congress exempted Fannie Mae and Freddie Mac generally from all state and local taxes “except that any real property [of Fannie Mae or Freddie Mac] shall be subject to State, territorial, county, municipal, or local taxation to the same extent as other real property is taxed.” Like many other states, South Carolina and Maryland impose taxes on the ownership and the transfer of real property. The Counties of South Carolina and Maryland charged with collecting property transfer taxes (“Counties”) claim that the exemption did not apply to the transfer taxes because of Congress’ real property exception to the tax exclusion. On the other hand, Fannie Mae and Freddie Mac claim that the real property exception is sufficiently narrow to only cover the payment of property ownership taxes and thus, does not extend to similarly require the payment of property transfer taxes. The district courts of South Carolina and Maryland agreed with Fannie Mae and Freddie Mac, upholding the exemption. The Counties appealed.

On appeal, the Fourth Circuit first affirmed the district court’s determination that the tax exemption applied to property transfer taxes. Courts have consistently distinguished general property taxes from taxes levied on the transfer of property. The Fourth Circuit noted the extensive Supreme Court precedent providing that recording taxes are distinct from property taxes, explaining that “a privilege tax is not converted into a property tax because it is measured by the value of the property.”

Secondly, the court affirmed the constitutionality of the tax exemption. The court began by noting that Congress only needed a “rational basis” to grant the exemption from state taxation. The Counties argued that Congress did not have a rational basis to grant such an exemption because the transfer tax was purely a local, intrastate activity beyond Congress’ control. The Fourth Circuit disagreed, emphasizing the substantial economic effect that Fannie Mae and Freddie Mac had on the nationwide mortgage market. The 2008 mortgage collapse provided ample evidence of the extensive impact that local mortgages have on the entire nation’s economy.

Convinced that mortgage lending has a substantial effect on the nation’s economy, the Fourth Circuit then considered whether Congress’ tax exemption was necessary and proper to Congress’ legitimate exercise of its power under the Commerce Clause. The Court held that “Congress could rationally have believed that state taxation would substantially interfere with or obstruct the legitimate purposes of Fannie Mae and Freddie Mac of regulating and stabilizing the secondary mortgage market.” First, imposing excessive taxes on Fannie Mae and Freddie Mac could undermine their ability to purchase mortgages by reducing their access to capital. Second, the inconsistencies in state property transfer taxes would impose varied transactions costs between states that may undermine the ability to provide the same mortgage liquidity to all parts of the country. Third, without such an exemption, the large volume of the mortgage portfolios held by Fannie Mae and Freddie Mac would pose an attractive target for large taxes by states and localities. Thus, the Fourth Circuit held that the tax exemption was a necessary and proper exercise of Congress’ Commerce Clause power.

Full Opinion

– Wesley B. Lambert

United States v. Williams, No. 12-4374

Decided: January 23, 2014

The Fourth Circuit held that the United States District Court for the District of Maryland properly denied Leconie Williams, IV’s (Williams) motion to suppress evidence and did not abuse its discretion by excluding evidence of prior police misconduct allegations against Williams’s arresting officers.  The Fourth Circuit therefore affirmed the decision of the district court.

On June 12, 2009, at about 1:00 AM, police officer Joseph McCann (McCann) saw a vehicle sitting still in the “middle of the road” while driving through a residential area.  He observed the vehicle in this posture for thirty seconds to a minute.  Williams—the driver of the vehicle—gestured for McCann to drive by him; however, McCann stayed behind Williams.  When Williams started to pull away, McCann turned his lights on, and Williams “pulled over to the side of the road.”  Another police officer, Edward Finn (Finn), arrived at the scene.  While McCann and Finn approached Williams’s vehicle, Finn saw Williams take an object out of his pants and drop it on the floorboard, making a “thud.”  McCann and Finn removed the occupants of the vehicle and searched it, discovering a gun on the floorboard near the driver’s seat.  Finn cited Williams for violating a section of the Maryland Code that prohibits leaving a vehicle sitting in such a way that it obstructs traffic.  Md. Code Ann., Transp. § 21-1001(b).

The Government subsequently indicted Williams for, inter alia, being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).  Williams moved to suppress the gun before trial, asserting that McCann did not have the requisite probable cause to make the traffic stop.  The district court denied Williams’s motion, concluding that McCann had reasonable suspicion that Williams violated another state statutory provision—specifically, § 21-1001(a) of the Transportation Article.  Additionally, the district court granted the Government’s motion to exclude evidence of prior police misconduct allegations against McCann and Finn under Federal Rule of Evidence 404(b).  At trial, the jury could not reach a verdict on the felon in possession of a firearm charge, and the district court granted a mistrial on that count.  At the next trial—upon Williams’s motion—the district court reaffirmed its decisions with regard to the suppression issue and the exclusion of the evidence of prior police misconduct allegations.  The jury found Williams guilty.  Williams appealed.

On appeal, Williams asserted that the district court committed error by denying his motion to suppress the gun, as McCann did not have the requisite probable cause or reasonable suspicion to stop Williams’s vehicle; he argued that McCann incorrectly identified his pre-stop conduct as illegal—as § 21-1001(b) of the Transportation Article does not apply to roads in residential areas.  Williams also argued that the district court erred by excluding the evidence of prior police misconduct allegations.

Quoting the Sixth Circuit’s decision in United States v. Hughes, 606 F.3d 311, the Fourth Circuit asserted that probable cause or reasonable suspicion of traffic law violations is not undermined by “a police officer’s inability to identify the correct code section at the time of a stop.”  The Fourth Circuit found that, while § 21-1001(b) could not serve as the basis for stopping Williams’s vehicle, Williams’s conduct was plainly illegal under a different provision in the Transportation Article—specifically, § 21-1004(a).  The Fourth Circuit also found that “the conduct relied upon by McCann” in making the stop “supported the reasonable suspicion to believe that [Williams] had violated Section 21-1004(a).”  Additionally, the Fourth Circuit found that Williams did not demonstrate clear error on the part of the district court with regard to the factual basis for a violation under § 21-1004(a).  With regard to the district court’s exclusion of the prior police misconduct allegations, the Fourth Circuit noted that, under the four-factor test enumerated in United States v. Queen, 132 F.3d 991, proffered Rule 404(b) evidence must also satisfy Rule 403.  The Fourth Circuit then found that the district court did not act in an “arbitrary” or “irrational” manner by excluding the evidence of prior police misconduct, as this evidence had minimal probative value, could have created admissibility problems, and probably would have been time-consuming and confusing to the jury.

Full Opinion

– Stephen Sutherland

United States v. Dehlinger, No. 12-7121

Decided: January 23, 2014

The Fourth Circuit Court of Appeals affirmed the judgment of the district court, denying the defendant habeas relief. The Fourth Circuit held that the trial counsel’s failure to call three witnesses, who were involved in the same fraudulent tax scheme as the defendant, was an objectively reasonable strategic decision.

The defendant, Dr. Erik Dehlinger (“Dehlinger”), was convicted of three counts of filing false income tax returns. Dehlinger was involved with Anderson’s Ark and Associates (“AAA”), which marketed programs enabling users to avoid current income tax liability and “recapture” taxes paid in the previous two years. Dehlinger avoided $363,207 in tax liability and obtained annual refunds. Dehlinger retained Scott Engelhard (“Engelhard”) based largely on Engelhard’s relative success as court-appointed counsel for AAA planner Tara LaGrand (“LaGrand”) in her 2004 trial. Before undertaking representation of Dehlinger, Engelhard obtained a conflict waiver from LaGrand and, therefore, no longer represented LaGrand. However, when LaGrand was later subpoenaed to testify in the prosecution of other AAA clients, Engelhard was re-appointed to serve as LaGrand’s counsel due to his familiarity with the AAA prosecutions. Engelhand filed a motion to quash the subpoena of LaGrand. Dehlinger fired Engelhard when he learned that Engelhard had filed this motion on behalf of LaGrand.

On appeal, Dehlinger contended that, in preparation for and during his trial, Engelhard labored under an active conflict of interest because of Engelhard’s history with LaGrand, Kuzel, and Redd.

In order to establish constitutionally deficient performance on the basis of an alleged conflict of interest, a defendant, like Dehlinger, who has raised no objection at trial, must establish that (1) an actual conflict of interest (2) adversely affected his lawyer’s performance. In order to establish that the conflict of interest adversely affected his lawyer’s performance, the defendant must satisfy the three-prong test set forth in Mickens v. Taylor: (i) identify a plausible alternative defense strategy or tactic, (ii) show the alternative strategy or tactic was objectively reasonable, and (iii) show failure to pursue that strategy or tactic was linked to the actual conflict.

Like the district court, the Fourth Circuit based its denial of Dehlinger’s request for habeas relief on its determination that—even assuming arguendo than an actual conflict of interest existed—Dehlinger failed to satisfy the third prong of Mickens. The court focused on whether Engelhard’s decision to call witnesses other than LaGrand, Kuzel, and Redd was “linked” to the asserted conflict, or instead was the product of a legitimate trial strategy.

Dehlinger, as the defendant, bears the burden of proving the requisite “link” and, therefore, must show Engelhard’s decision was not objectively reasonable. With regard to potential witnesses Kuzel and Redd, Dehlinger barely knew them and they had not prepared any of his tax returns. Thus, it is unlikely that either of them would have been permitted to testify as to Dehlinger’s assertedly innocent state of mind. Even if they were, Dehlinger failed to demonstrate that they could have provided testimony not elicited from the defense witnesses who did testify on his behalf at trial. As to LaGrand, Engelhard believed that the risk of LaGrand’s testimony outweighed the benefits, and informed Dehlinger of this strategy, as seen in several emails. The strategic considerations that led Engelhard to conclude that calling LaGrand would be “too risky” were objectively reasonable. Not only was LaGrand a convicted felon, she had also pled guilty to tax fraud involving the very same fraudulent organization that provided the basis of its charges against Dehlinger. In addition, LaGrand had a history of conflicting statements made under oath about this tax fraud and played no part in Dehlinger’s decision to follow the AAA tax “plan.”

Full Opinion

– Sarah Bishop

United States v. Beckton, No. 13-4037

Decided: January 21, 2014

Defendant Reggie Beckton was convicted of two counts of bank robbery. Beckton appeals on two grounds: (1) that the district court erred in refusing to permit him to testify in narrative form; and (2) that the district court erred in forcing him to choose between his right to testify in his own defense and his right to represent himself.

In the months leading up to his trial, Beckton was unable to find a satisfactory public defender. Beckton alleged that his first public defender presented a conflict of interest. The court allowed Beckton’s second public defender to withdraw after Beckton made crude sexual remarks. Finally, a week before trial, Beckton made an oral motion to disqualify his third public defender on the grounds of a conflict of interest. The court denied his motion, finding that Beckton’s complaints did not constitute a conflict of interest. The court similarly denied Beckton’s motion to postpone his trial. After denying both motions, Beckton stated that he wished to proceed pro se. The court acknowledged Beckton’s right to do so, but strongly cautioned him against it, warning him that he would be held to the same standards as an experienced attorney. Nevertheless, Beckton insisted that he continue on his own behalf. The court allowed him to proceed pro se with the third public defender serving as standby counsel.

Beckton’s trial was riddled with evidentiary errors and ad hominem attacks against the government and the prosecutor. At the close of the prosecution’s case, Beckton stated that he wished to testify in narrative form. The court denied his request, requiring Beckton to both ask and answer the question, to afford the government an opportunity to object. The court denied Beckton’s request to draft questions for the public defender to ask, insisting that Beckton could either choose to continue on his own or avail himself of the public defender, but not both. During testimony, Beckton slipped into narrative form on a couple of occasions, accused the court of “favoring one party,” and asked why he had to “keep quiet about this corruption.” After several such outbursts, the court declared the evidence closed and the jury convicted Beckton on both counts of bank robbery. Beckton appealed.

On appeal, the Fourth Circuit affirmed the conviction. First, the court held that the district court’s requirement that Beckton proceed in question-answer format was not an abuse of discretion. Federal Rule of Evidence 611(a) gives the district court considerable discretion to control the mode of examining witnesses and presenting evidence “to make those procedures effective for determining the truth.” Furthermore, the court may place any restrictions on a defendant’s right to testify are not “arbitrary or disproportionate to the purposes they are designed to serve.” The Fourth Circuit acknowledged that the pro se litigant’s questioning himself was awkward and uncomfortable, but nonetheless held that the requirement was not an abuse of discretion. Moreover, Beckton had the opportunity to avail himself of the assistance of counsel and repeatedly refused. Second, the Fourth Circuit similarly held that the district court did not abuse its discretion in forcing Bectkon to choose between his right to represent himself and the right to testify in narrative form in response to questions from counsel controlling his case. The district court gave Beckton the opportunity to exercise his right to testify and his right to represent himself, but Beckton lost that opportunity when he repeatedly defied the court’s instruction on using the question and answer format proscribed. Therefore, the Fourth Circuit affirmed the conviction.

Full Opinion

– Wesley B. Lambert

United States v. Heyer, No. 12-7472

Decided: January 17, 2014

The Fourth Circuit held that the United States District Court for the Eastern District of North Carolina did not abuse its discretion by allowing only simultaneous sign language interpretation—rather than consecutive interpretation—for respondent–appellant Thomas Heyer (Heyer) during commitment proceedings under the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. §§ 4247–48; that the district court did not commit plain error by failing to allow a hearing on the interpretation issue; that the district court did not commit a mistake of law by labeling the case a civil matter during its discussion of the interpretation issue; that the district court did not commit clear error by finding Heyer to be a “sexually dangerous person” under 18 U.S.C. § 4248; and that the district court did not commit error by rejecting Heyer’s due process and equal protection claims. The Fourth Circuit therefore affirmed the judgment of the district court.

In 1993, Heyer—a deaf man—was convicted of kidnapping after he molested a ten-year-old, tied him up, and placed him in a hole.  Heyer was later convicted of possession of child pornography after he “was found to have approximately 180 images of child pornography in his possession” around 2002.  After serving time in prison, Heyer began sex offender treatment during supervised release; however, his supervised release was revoked in 2007 when he went to a treatment session while under the influence of alcohol.  Heyer also admitted that, inter alia, he looked at “a lot of different websites that were triple-x” while on probation and that the pictures he viewed included both adults and children in sexual situations; that he showed some of the pictures to a young teenage boy and that he engaged in sexual activity with the boy over a period of about one-and-a-half years; that he knew his sexual activities with the boy were wrong, but he continued them because Heyer “liked it and [the boy] was willing”; that he had sexual contact with between eighteen and twenty-five boys after his eighteenth birthday; that his adolescent years were “plagued by fighting and being the victim of sexual aggression”; and that he experienced “some arousal to pre-pubescent boys, around age eight.”

In December 2008, the Government sought to have Heyer civilly committed as a “sexually dangerous person.”  The district court conducted an evidentiary hearing in May 2012.  Two forensic psychologists, Dr. Jeffrey Davis (Dr. Davis) and Dr. Heather Ross (Dr. Ross), testified that Heyer met the criteria for civil commitment; another forensic psychologist testified that Heyer did not meet the criteria, and an expert in “deafness and psychological issues related to deafness” also testified on behalf of Heyer.  Heyer moved the court to provide consecutive interpretation at the hearing; the district court denied the motion, stating “[w]ell, it’s a civil case.  The answer is no.  We are not going to make this into a marathon.”  In July 2012, the district court issued its Findings of Fact and Conclusions of Law, in which it found that the Government had met is evidentiary burden of proving that Heyer was a “sexually dangerous person.”  The district court civilly committed Heyer under 18 U.S.C. § 4248.  Heyer appealed, raising issues with the district court’s denial of his motion for consecutive interpretation, the district court’s conclusion that he is a “sexually dangerous person,” and with regard to equal protection and due process.

The Fourth Circuit noted that, under the Court Interpreters Act (CIA), 28 U.S.C. § 1827(k), there is a presumption of simultaneous interpretation for non-witnesses unless the district court finds that consecutive interpretation “will aid in the efficient administration of justice”—and the district court found that consecutive interpretation would unduly delay and enlarge the hearing.  Furthermore, Heyer’s attorney offered only a speculative reason for using consecutive interpretation, and the district court offered numerous linguistic accommodations to Heyer.  With regard to the district court’s failure to holding a hearing on the interpretation issue under 28 U.S.C. § 1827(k), the Fourth Circuit stated that, inter alia, it was unclear what—if any—additional evidence Heyer would have submitted during the hearing and that there was no evidence that Heyer suffered prejudice from the lack of a hearing on the issue.  The Fourth Circuit also found that the district court’s statement about the civil nature of the case made no indication that the court lacked understanding of the CIA’s application to civil and criminal cases alike.  With regard to the district court’s conclusion that Heyer is a “sexually dangerous person,” the Fourth Circuit noted the high level of deference owed to the district court’s determinations regarding the credibility expert witnesses.  The Fourth Circuit then noted that there was no dispute regarding Heyer’s engagement in past acts of child molestation and found that the district court adequately took Heyer’s deafness and linguistic difficulties into account, the district court properly quoted the American Psychiatric Association’s definition of pedophilia, and that Heyer failed to show that the opinions of Dr. Davis and Dr. Ross were unreasonable.  Lastly, the Fourth Circuit found that Heyer’s equal protection argument (that § 4248 creates an improper classification by subjecting Federal Bureau of Prisons individuals, but not other individuals under federal control, to civil commitment) and his due process argument (that § 4248 is better categorized as a criminal statute, and therefore fails to protect various rights provided to criminal defendants) were foreclosed by the Fourth Circuit’s decision in United States v. Timms, 664 F.3d 436.

Full Opinion

– Stephen Sutherland

United States v. Green, No. 12-4879

Decided: January 17, 2014

The Fourth Circuit affirmed the district court’s denial of Herbert Green’s (“Green”) suppression motions based on the scope and duration of a traffic stop and the reliability of the drug-detection dog.

Trooper Daryl Johnson (“Johnson”) executed a traffic stop of Green’s vehicle because the windows appeared to be excessively tinted and the license plate was partially obscured. To begin the stop, Johnson approached Green’s vehicle and explained his reasons for making the stop. Johnson later testified that Green appeared to be excessively nervous and that the vehicle contained a strong “air-freshener” odor and had a “lived-in look.” After obtaining his license and registration, Johnson had Green accompany him to the patrol car so he could check Green’s information on his computer. While in the patrol car, Johnson reiterated the reasons for the traffic stop, questioned Green about his itinerary, and radioed Trooper Brian Dillon (“Dillon”), who was positioned some distance behind Johnson’s vehicle, to “come on up.” Soon after, Johnson’s computer program responded to his inquiry, notifying him of a protective order against Green, which alerted Johnson to potential officer safety issues. Johnson and Green then had a brief exchange about the protective order and Jonson requested additional information from dispatch. Thereafter, Johnson checked the window tint on Green’s vehicle and found that it was illegal. After informing Green that the tint was illegal, Johnson asked Green if there were any drugs in the vehicle. Johnson later testified that Green became visibly nervous and uncomfortable after being asked about drugs. He then questioned Green about his criminal history and requested a criminal history from dispatch. Green was not entirely truthful regarding his criminal history. Before receiving Green’s history from dispatch, Johnson left the patrol car and requested that Trooper Dillon conduct a free-air sniff using his drug-detection dog, Bono.

Bono alerted to the vehicle’s rear passenger panel. Just after completing the sniff, dispatch informed Johnson that Green’s criminal history raised multiple officer safety issues and included charges for homicide, carrying concealed weapons, robbery, kidnapping, and terroristic threats. Upon another officer’s arrival, the troopers began searching Green’s vehicle. The search revealed a duffle bag containing over one kilogram of cocaine and approximately $7,000 in cash. The entire traffic stop took place between 10:08:35 AM and 10:21:42 AM. Green was indicted for possession with intent to distribute cocaine. Following his indictment, Green moved to suppress the evidence found in the vehicle, contending that the traffic stop was unreasonable in its scope and duration, and that the delay was not justified by reasonable suspicion of criminal activity. The district court denied both motions. This appeal followed.

On appeal, the Fourth Circuit first addressed Green’s contention that the 14-minute period of detention between the initial stop and Bono’s alert was not reasonably related in scope to the circumstances that justified the stop. The Court held that the delay, at most, amounted to a de minimis intrusion on Green’s liberty interest and thus did not constitute a violation of his Fourth Amendment rights. In so holding, the Court noted that at all times before learning of Green’s criminal history, Johnson was focused on pursuing the reason for the initial stop. Next, the Court addressed Green’s challenge that Bono’s alert did not justify probable cause to search his vehicle because Bono’s track record in the field is not sufficiently reliable. Recognizing that, for numerous reasons, a drug-detection dog’s field performance does not accurately reflect the dog’s reliability; the Court held that the totality of the circumstances established Bono’s reliability in detecting drugs.

Full Opinion

-W. Ryan Nichols

United States v. Shepperson, No. 11-4618

Decided: January 8, 2014

Chinua Shepperson was convicted several crimes, including racketeering, conspiracy, and murder in connection with his involvement in the Latin King gang. The district court sentenced Shepperson to life plus ten years’ imprisonment. Shepperson argues that the district court erred by not affording him the assistance of two attorneys at trial and by not excluding the testimony of a witness based on the government’s failure to furnish him with a list of witnesses three days before commencement of trial. On appeal, the Fourth Circuit affirmed Shepperson’s convictions.

On appeal, Shepperson first argued that the district erred by not affording him the assistance of two attorneys as required by the United States Code where a defendant is on trial for “treason or other capital crime.” Although the Attorney General did not seek a capital sentence in this particular case, the Fourth Circuit previously held that a defendant is entitled to representation by two attorneys in any capital-eligible case whether or not the death penalty is actually sought. Shepperson admitted that he did not request additional counsel; however, he asserted that the court nevertheless was obligated to inform him of his right to two attorneys sua sponte because of Shepperson’s obvious dissatisfaction with his own attorney. The Fourth Circuit disagreed, finding that the district court had no affirmative obligation with respect to the appointment of a second attorney where the defendant did not ask for one. Moreover, while the right to the assistance of a single attorney is a constitutional right guaranteed by the sixth amendment, the right to a second attorney in a capital case is a right created entirely by statute. Thus, the district court had no burden beyond the plain language of the statute, which merely imposed the obligation on the district court to appoint a second attorney upon the defendant’s request.

Secondly, Shepperson contended that the district court erred by not excluding the testimony of a witness for the government because the government did not furnish Shepperson with a list of witnesses three days before the commencement of trial as required in a capital case under the United States Code. The Fourth Circuit found this requirement inapplicable because the Attorney General elected not to pursue the death penalty. Moreover, while the government did not provide a list of witnesses three days before trial, the statute’s purpose of avoiding surprise was nevertheless met because the witness’s name was read aloud during the first day of jury selection, three days before the witness testified. Furthermore, Shepperson made no effort to exclude the witness’s testimony during trial because of the late disclosure. Therefore, the Fourth Circuit affirmed Shepperson’s convictions in district court.

Full Opinion

– Wesley B. Lambert

Snider Int’l Corp. v. Town of Forest Heights, No. 12-2490

Decided: January 7, 2014

The Fourth Circuit affirmed the district court’s decision and held that two Maryland towns’ use of first-class mail to issue electronically-signed speeding citations and use of those citations as evidence at trial did not violate due process.

Snider International Corporation, Mark Cranford, Stan Brown, and Al Goyburu (“Plaintiffs”) received citations from the Town of Forest Heights, Maryland and the Town of Riverdale Park Maryland (“Defendants”). The citations were issued under Maryland’s speed camera program. These speed cameras produce electronically-recorded images of vehicles traveling in excess of the speed limit by at least twelve miles per hour. The automated citations carry a civil penalty no greater than forty dollars. Nonpayment and failure to contest the citation amounts to an admission of civil liability. The appropriate agency mails the citation to the registered owner of the recorded vehicle, and the citation must have the prescribed contents. A citation recipient may elect a trial in lieu of payment. At trial, the agency may introduce the citation as evidence without any corroborating evidence or authentication by the systems operator.

On appeal, the Fourth Circuit addressed whether the automated citations violated both procedural and substantive due process. At bottom, procedural due process requires fair notice of impending state action and an opportunity to be heard. Proper notice is that which is “reasonably calculated to effect actual notice.” The Supreme Court has routinely recognized that the use of mail satisfies the notice element of due process. Here, first-class mail was reasonably calculated to confer actual notice. Defendants used registration information collected by the state’s transportation agency to mail summonses to the addresses registered in connection with the recorded vehicles. Due to successful delivery, Plaintiffs lacked any indication that first-class mail could not reasonably provide actual notice. In addition, sufficiency of notice does not turn upon the distinctions of in personam, in rem, and quasi in rem. Finally, no evidence indicated that the United States Postal Service delivers certified mail at a rate so superior to that of first-class mail that the Fourth Circuit should have declared first-class mail not reasonably calculated to provide actual notice. Therefore, notice via first-class mail comports with due process.

The Fourth Circuit also addressed the validity of electronic signatures on citations and the admissibility of the citations as sworn testimony in trial. Having found notice sufficient, the Fourth Circuit only needed to evaluate the opportunity to be heard. This prong of the procedural due process inquiry has three factors: (1) the private interest involved, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and (3) the state interest, including fiscal and administrative burdens imposed by additional process. Here, Plaintiffs received constitutionally sufficient notice of the citation and potential penalty, and they could elect a trial. The notice set forth the basis for the adverse action. The trial permitted Plaintiffs to call witnesses and rebut the state’s evidence with their own. Plaintiffs’ driving privileges were unaffected and the $40 civil penalty was not subject to additional monetary penalties for nonpayment. The state has an interest in efficiently enforcing traffic laws would be greatly burdened were additional procedural safeguards required. Moreover, the mere availability of a trial is fatal to Plaintiffs’ procedural due process claims. Further, having forgone the opportunity to object to the use of electronically-signed citations as evidence, Plaintiffs were not able raise this issue for the first time on appeal in federal court.

Finally, the Fourth Circuit held that there was no substantive due process violation. Only the most egregious official conduct qualifies as constitutionally arbitrary. Plaintiffs failed to identify any element of the disputed procedures that equate to egregious official conduct unjustified by the state interest in traffic enforcement. Further, assessment of the $40 civil penalty was subject to correction through trial, presentation of witnesses, and rebuttal evidence and was, therefore, not arbitrary.

Full Opinion 

– Sarah Bishop

Occupy Columbia v. Haley, No. 13-1258

Decided: December 16, 2013

The Fourth Circuit held that the appellants—a number of state officials including Governor Nikki Haley (Governor Haley)—were not entitled to qualified immunity at the Rule 12(b)(6) or Rule 12(c) stage with regard to a 42 U.S.C. § 1983 claim brought by the group Occupy Columbia and fourteen individual protestors (collectively, Occupy Columbia), as Occupy Columbia pled a constitutional violation arising solely out of the arrest of its constituent members for assembling on State House grounds after 6:00 p.m. on November 16, 2011; that Occupy Columbia’s relevant complaint sufficiently alleged that its members were partaking in protected speech at the time of their arrest; that there were no valid time, place, and manner restrictions on the speech of Occupy Columbia’s members at the time of their arrest; and that Occupy Columbia’s right to protest in this regard has been clearly established since the 1963 case Edwards v. South Carolina, 372 U.S. 229.  The Fourth Circuit therefore affirmed the United States District Court for the District of Columbia’s denial of qualified immunity at this stage of the lawsuit.

In October 2011, Occupy Columbia members began “protesting around-the-clock” at the South Carolina State House in Columbia, South Carolina as a way to “express their message of taking back our state to create a more just, economically egalitarian society.”  On November 16, 2011—after thirty-one days of continuous “occupation” by the Occupy Columbia protestors—State Senator Harvey S. Peeler, Jr. sent a letter to Governor Haley asking “what the Budget and Control Board will be doing about the Occupy Columbia group”?  Governor Haley then sent a letter to the Director of the Department of Public Safety and the Chief of Police of the Bureau of Protective Services, asking for their assistance in removing Occupy Columbia members who remain on the State House grounds after 6:00 p.m. without certain written authorization.  Governor Haley claimed that the Budget and Control Board requires “any individual or organization that wishes to remain at the Statehouse after 6:00 p.m. to receive written permission from the agency,” and cited paragraph 8 of a document titles “Conditions for Use of South Carolina State House Grounds” (Condition 8) as support for this purported policy.  Certain members of Occupy Columbia were arrested shortly after 6:00 p.m. on November 16.  Occupy Columbia alleged that, at the time its members were arrested, they “were assembled on the [S]tate [H]ouse grounds, protesting and petitioning our government, and [they] were no violating any law.”

On November 23, Occupy Columbia filed a lawsuit in state court, seeking to enjoin the appellants from interfering with the protest on State House grounds.  The appellants removed the case to federal court.  In December 2011, the district court granted Occupy Columbia’s motion for a preliminary injunction.  The Budget and Control Board then passed an emergency regulation—codified at S.C. Code Ann. § 10-1-35—prohibiting the “use of the State House grounds and all buildings located on the grounds for camping, sleeping, or any living accommodation purposes.”  The district court subsequently found that this regulation was valid with respect to time, place, and manner.  In January 2012, Occupy Columbia filed a Second Amended Complaint and added a claim for damages under 42 U.S.C. § 1983.  The district court granted the Budget and Control Board Defendants’ motion to dismiss the complaint as moot due to the enactment of § 10-1-35—as well as a revision to Condition 8 that removed the references to specific time limitations on the use of the State House grounds.

Occupy Columbia filed a Third Amended Complaint in September 2012.  The appellants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) or for judgment on the pleadings under Rule 12(c), asserting that Occupy Columbia’s injunctive relief claims were moot and that the appellants were entitled to qualified immunity on the claims for damages.  The district court dismissed the injunctive relief claims as moot.  With regard to the qualified immunity issue, the district court found that, as the time of the arrests, there was no clearly established constitutional right “to camp, sleep, or live continuously on the State House grounds.”  However, the district court also found that Occupy Columbia had made an allegation that its members’ “constitutional rights were violated when they were arrested for their presence and protests on the State House grounds after 6:00 p.m.”; the district court then and rejected the appellants’ qualified immunity arguments with regard to this separately alleged violation of constitutional rights.  The appellants filed a notice of appeal to obtain review of the qualified immunity ruling.

Like the district court, the Fourth Circuit relied “solely on the allegations in the Third Amended Complaint and those documents that are integral to the complaint” in assessing qualified immunity.  The Fourth Circuit noted that certain paragraphs of Occupy Columbia’s complaint “state[d] that the arrests occurred when Occupy Columbia was simply assembled on State House grounds for the purpose of protesting and petitioning the government,” and made no mention of continued occupation and camping.  The court also noted that Governor Haley’s letter focused on removing Occupy Columbia protestors who remained on the grounds of the State House after 6:00 p.m. without certain written permission—rather than focusing more generally on the removal of people who were camping, sleeping, or living on the grounds of the State House.  The Fourth Circuit also found that, according to the allegations in the Third Amended Complaint, the members of Occupy Columbia were “protesting and petitioning our government” in a public forum at the time they were arrested.  Next, the Fourth Circuit found that, on the face of the Third Amended Complaint, Occupy Columbia’s members were not violating South Carolina law—specifically, S.C. Code §§ 10-11-20, 10-22-30, or 10-11-330—at the time they were arrested.  Furthermore, the court found that Condition 8 is, on its face, “simply a mechanism for groups to obtain reservations to utilize the State House grounds” in ways that avoid scheduling conflicts—and that, even if Condition 8 imposed a time, place, and manner restriction, that restriction would be invalid.

Lastly, with regard to the “clearly established” prong of the qualified immunity analysis, the Fourth Circuit noted the Supreme Court and Fourth Circuit jurisprudence supporting the conclusion that “in the absence of a valid time, place and manner restriction, arresting members of Occupy Columbia for their presence and protest on State House grounds after 6:00 p.m. was a violation of their First Amendment rights.”

Full Opinion

– Stephen Sutherland

Cooper v. Sheehan, No. 13-1071

Decided: November 7, 2013

The Fourth Circuit affirmed the district court’s determination that two police officers were not entitled to qualified immunity or public officers’ immunity, respectively, in response to the plaintiff’s federal and state claims for excessive use of force.

On May 7, 2007 two cousins spent the day performing home repairs for a nearby relative. Later that evening, the cousins spent time sitting outside the North Carolina home of the plaintiff, George Cooper, talking, drinking, smoking marijuana laced with cocaine, and consuming a pint of brandy. Around 11:00 p.m., a neighbor called the police, claiming to hear screams coming from Cooper’s property. Two police officers, Carlisle and Sheehan (collectively “Officers”) responded to the call and arrived at around 11:30 that evening. The officers heard screaming coming from the property. Officer Sheehan then approached the door of Cooper’s mobile home and tapped on the window with his flashlight. Neither officer announced his presence or identified himself as a police officer. The Officers then heard obscenities coming from inside the home. Eventually, Cooper emerged from the mobile home’s rear door and called out for anyone on the property to identify himself. When neither officer responded, Cooper reentered his home and retrieved his shotgun. Cooper then took a couple of steps out onto the porch of the mobile home, with the butt of his shotgun in hand and the muzzle pointed toward the ground. Upon seeing the shotgun, the Officers drew their guns and fired on Cooper without warning. Cooper suffered multiple gunshot wounds, but ultimately recovered. In 2010, Cooper filed a lawsuit against the Officers for excessive force under § 1983 and similar state law claims. The Officers moved for summary judgment on the grounds of qualified immunity and public officer’s immunity from the plaintiff’s federal and state claims, respectively. The district court denied the motion. The Officers appealed.

The Fourth Circuit first held that the district court correctly denied the Officers’ qualified immunity claim in response to the plaintiff’s § 1983 claim for the excessive use of force. The Fourth Circuit explained that a police office is not entitled to qualified immunity when: (1) a constitutional violation occurred, and (2) the right violated was clearly established. The court explained that a police officer violates a person’s constitutional rights through the excessive use of force when an officer’s actions are unreasonable “from the perspective of a reasonable officer on the scene.” Furthermore, an officer is only justified to use deadly force when, “based on a reasonable assessment, the officer or another person is threatened with [a] weapon.” First, the Officers argued that they did not violate Cooper’s constitutional rights because they were justified in the use of deadly force because Cooper brandished his shotgun in “plain view.” The Fourth Circuit disagreed, finding that although Cooper had a shotgun, the threat from the gun did not justify the use of deadly force. The court emphasized that the muzzle remained pointed at the ground. In addition, Cooper made no sudden moves or threats that would justify a reasonable officer to feel threatened by Cooper’s actions. Moreover, the Officers never identified themselves, which had they done so, may have led to the reasonable assumption that “a man who greets law enforcement with a firearm is likely to pose a deadly threat.” Secondly, the court found that “the right to be free from deadly force when posing not threat” was clearly established at the time of the incident. Thus, the Fourth Circuit denied the Officer’s qualified immunity defense to Cooper’s § 1983 claim for the excessive use of force.

Similarly, the Fourth Circuit determined that the Officers were not entitled to public officers’ immunity in response to Cooper’s state tort claims. In North Carolina, a public officer is not entitled to immunity when he acts in a manner that a man of reasonable intelligence would know to be contrary to his duty. The Fourth Circuit determined that a North Carolina police officer could only use deadly force when reasonably necessary to defend against “the use or imminent use of deadly physical force.” The court determined that the test for public officers’ immunity was the functional equivalent of the test for qualified immunity in this case. Thus, the Fourth Circuit similarly denied the Officers’ state public officer’s immunity claim.

Full Opinion

– Wesley B. Lambert

United States v. Dargan, No. 13-4171

Decided: December 24, 2013

The Fourth Circuit held that the United States District Court for the District of Maryland did not err in denying Reginald Dargan, Jr.’s (Dargan) motion to suppress evidence; that the district court did not abuse its discretion by admitting testimony involving certain out-of-court statements, per Federal Rule of Evidence 804(b)(3); and that the admission of these statements did not violate Dargan’s Sixth Amendment right to confront opposing witnesses.  The Fourth Circuit therefore affirmed the judgment of the district court.

On March 30, 2011, three men robbed a jewelry store in Columbia, Maryland.  Police subsequently arrested several people in connection with the robbery, including Deontaye Harvey (Harvey) and Aaron Pratt (Pratt).  The police investigation also implicated another person nicknamed “Little Reggie,” who was not yet in custody.  Dargan was arrested two months later.  Police suspected Dargan was Little Reggie.  Investigators later acquired a search warrant for Dargan’s residence.  An attachment to the warrant, Attachment A, catalogued the items subject to seizure.  These items included, among other things, “[i]ndicia of occupancy.”  While searching Dargan’s residence, officers seized a receipt for a $461.10 belt, which they found in a bag on a dresser in Dargan’s bedroom; the receipt indicated that the buyer, who had identified himself as “Regg Raxx,” bought the belt on the day after the robbery and paid for it with cash.  Also, at some point after Dargan’s arrest, Harvey allegedly told a cellmate named Zachary Shanaberger (Shanaberger) that he had robbed a jewelry store with two co-conspirators and that, at the time of the conversation, he and his-coconspirators were imprisoned in the same facility.

A federal grand jury indicted Dargan, Harvey, and Pratt on October 26, 2011.  Dargan moved to suppress the receipt for the belt prior to trial.  Though the district court concluded that the receipt did not fall under Attachment A’s terms, the court found that the plain-view exception to the warrant requirement justified the seizure.  Also, prior to trial, the Government filed a motion to admit testimony regarding Harvey’s out-of-court statements to Shanaberger; specifically, the Government sought to admit Harvey’s comments as statements against interest under Federal Rule of Evidence 804(b)(3).  Dargan objected to this categorization and argued that the introduction of Harvey’s statements would violate his rights under the Confrontation Clause.  The district court granted the Government’s motion.  At trial, the Government introduced the receipt as evidence and called Shanaberger as a witness, who testified as to Harvey’s aforementioned comments to him.  The jury returned a verdict of guilty, and Dargan appealed.  On appeal, Dargan argued that the seizure of the receipt violated the Fourth Amendment, as the receipt did not fall under any of Attachment A’s enumerated items; that Harvey’s statements were inadmissible under Rule 804(b)(3); and that the introduction of Harvey’s statements violated the Confrontation Clause.

With regard to Dargan’s Fourth Amendment arguments, the Fourth Circuit noted that courts should employ a “commonsense and realistic” approach to interpreting warrants.  The court found that “[t]he officers conducting the search could plausibly have thought that the occupant of the premises was also the purchaser identified on the belt receipt”—thus making the receipt one of the “[i]ndicia of occupancy” under Attachment A.  Furthermore, the officers were justified in opening the bag on Dargan’s dresser, as many of the items described in Attachment A could have been in the bag.  With regard to the admission of Harvey’s statements under Rule 804(b)(3), the Fourth Circuit found that Harvey was unavailable as a witness, as he invoked his Fifth Amendment right not to testify; that Harvey’s statements were self-inculpatory, as he made them to a cellmate rather than an investigator, and the statements demonstrated Harvey’s knowledge of “significant details about the crime” and “implicate[d] him in a conspiracy”; and that the factors enumerated in United States v. Kivanc, 714 F.3d 782, indicated that Harvey’s statements were supported by corroborating circumstances.  Lastly, with regard to Dargan’s Confrontation Clause argument, the Fourth Circuit found that Harvey’s statements to Shanaberger were non-testimonial.

Full Opinion

– Stephen Sutherland

United States v. Wood, No 12-7653

Decided: December 20, 2013

The Fourth Circuit, holding that Vernon Dale Wood (“Wood”) was a “sexually dangerous person” under the Adam Walsh Act (the “Act”), affirmed the district court’s order committing Wood to the custody of the Attorney General of the United States (“U.S.A.G.”).

Wood was born in 1953. In 1976, he was arrested for promoting prostitution and simple assault in the state of Washington. The prostitution charges were dropped, but Wood was convicted of the simple assault charge. The following year, Wood was arrested for promoting prostitution and compelling prostitution in Oregon. He was found guilty on both counts and served approximately five years in prison. One of the women involved in the Oregon prostitution offenses was sixteen years old. In 1987, Wood was charged with sexual abuse in Iowa. He was found guilty of this offense, which involved intercourse with a ten-year old girl, and sentenced to twenty years in prison. However, he was released in January 2001. The following April, Wood was arrested and charged with failure to comply with Iowa’s sex offender registry requirements. He was placed on probation. Wood’s probation was revoked in 2002, however, when he was arrested on five counts of supplying alcohol to minors. In 2004, Wood was again arrested in Iowa and charged with lascivious acts with a child and being a felon in possession of a firearm. The state of Iowa deferred to the U.S.A.G.’s office for prosecution and a grand jury charged Wood with two counts o f being a felon in possession of a firearm. While the federal charges were pending, in 2005, Wood was charged with seven counts of sexual abuse stemming from an alleged molestation of a female under the age of twelve over a period of three years. Following Wood’s 2006 conviction on the federal firearm charge, a presentence report (the “2006 PSR”) was prepared in preparation for sentencing. The 2006 PSR detailed Wood’s extensive criminal history, which also included numerous offenses in a variety of state courts for non-sexual offenses. Wood’s received concurrent 100-month sentences, his projected release date was August 13, 2012.

 In January 2012, the Bureau of Prisons certified that Wood was a “sexually dangerous person” in accordance with the Act, automatically staying his release pending an evidentiary hearing. The entire procedure was guided by a standing order governing all cases arising under the Act (the “Standing Order”). Paragraph 5(h) of the Standing Order provides for two types of examiners identified as a “court selected examiner” and an “additional examiner” selected by the defendant. The Standing Order bars counsel from either party from ex parte communication with either Paragraph 5(h) examiner. Additionally, Paragraph 5(h) provides an opportunity for the defendant to obtain a “non-testifying examiner” to assist in developing a defense. Wood, however, never sought the appointment of such an examiner. The district court, appointed Dr. Harry Hoberman (“Dr. Hoberman”), a licensed psychologist, as the “court selected examiner.” Following a motion by Wood, Dr. Fabian Saleh (“Dr. Saleh”) was selected as an “additional examiner.”  Wood then filed a motion seeking leave to substantively communicate ex parte with Dr. Saleh. The motion was denied.

The district court held a civil commitment hearing in July 2012. At the hearing, Dr. Tanya Cunic (“Dr. Cunic”), Dr. Hoberman, and Dr. Saleh testified as experts in the field of psychology. Based on a record review, Dr. Cunic testified that she diagnosed Wood with two serious mental disorders: (1) Pedophilia; and (2) Personality Disorder, Not Otherwise Specified with Antisocial Traits. Dr. Cunic further testified that, based on Wood’s serious mental disorders and dynamic risk factors; he would have serious difficulty in refraining from child molestation. Similarly, Dr. Hoberman testified that he diagnosed Wood with two serious mental disorders: (1) Pedophilia; and (2) Antisocial Personality Disorder. Dr. Hoberman also testified that he believed Wood would have serious difficulty refraining from future acts of child molestation. Dr. Saleh, on the other hand, testified that there was no evidence that Wood suffered from Pedophilia or Antisocial Personality Disorder. Dr. Saleh did, however, testify that he diagnosed Wood with Personality Disorder, Not Otherwise Specified but that there was no link in this case between the disorder and sexual reoffending. Dr. Saleh further testified that he believed Wood would not have serious difficulty in refraining from engaging in child molestation.

On September 6, 2012, the district court issued its civil commitment order. With regard to the second element required under the Act, the court credited the opinions of Drs. Cunic and Hoberman over the opinion of Dr. Saleh and found that Wood suffered from Pedophilia, a serious mental disorder. Moreover, the district court found Wood suffered from Personality Disorder, Not Otherwise Specified with Antisocial Traits. With regard to the third element, the district court found that Wood would have serious difficulty in refraining from child molestation if released. Again, the court credited the opinions of Drs. Cunic and Hoberman over that of Dr. Saleh. This appeal followed.

On appeal, the Fourth Circuit first addressed Wood’s contention that the Standing Order violated his due process rights because it did not allow him to substantively communicate ex parte with his selected examiner, Dr. Saleh. The court rejected this contention, reasoning that (1) Dr. Saleh’s expert opinions supported Wood’s claim that he was not a sexually dangerous person; and (2) Wood had the opportunity to select a “non-testifying expert” to assist in building his defense. Next, the court addressed Wood’s argument that the district court erred in admitting unreliable hearsay into evidence. The court also rejected this argument. In so concluding, the court noted that the challenged reports were admissible under Rule 703 of the Federal Rules of Evidence, which permits an expert to testify to opinions based on inadmissible evidence. Moreover, the reliability of the challenged reports was supported by the fact that they were used in preparation of the 2006 PSR, which was admissible as an official document under Rule 803(8). Importantly, the 2006 PSR set forth the vast majority of the relevant evidence contained in the challenged reports.

Full Opinion

-W. Ryan Nichols

United States v. Under Seal, No. 13-4267

Decided: December 13, 2013

The Fourth Circuit affirmed the district court and held that the required records doctrine superseded the Fifth Amendment privilege against self-incrimination and required production of certain foreign bank records.

John and Jane Doe (collectively “Appellants”) were targeted under a grand jury investigation to determine whether they used secret Swiss bank accounts to conceal assets and income from the IRS. Evidence presented to the grand jury indicated that, in 2008, John Doe opened an account at a Swiss investment bank in the name of a corporation, the name of which was redacted. The Swiss firm Beck Verwaltungen AG (“Beck”) managed the account, valued in excess of $2.3 million. In January 2009, Doe closed the account and transferred $1.5 million to Beck’s account at a different Swiss private bank. In May 2012, Appellants were served grand jury subpoenas. The subpoena requested that Appellants produce certain foreign bank account records that they were required to keep pursuant to Treasury Department regulations governing offshore banking. Appellants, however, citing the Fifth Amendment, moved to quash the subpoenas. The district court denied Appellants’ motion, finding that the required records doctrine overrode Appellants’ Fifth Amendment privilege against self-incrimination. Appellants refused to comply with the district court’s order to produce the requested records. The district court, therefore, held Appellants in civil contempt. Appellants filed this appeal and the district court stayed execution of the contempt order until this matter was adjudicated.

On appeal, the Fourth Circuit first noted that the Supreme Court has held that the privilege against self-incrimination does not bar the government from imposing recordkeeping and inspection requirements as part of a valid regulatory scheme. It then summarized the requirements of the required records doctrine as follows: (1) the purposes of the United States’ inquiry must be essentially regulatory; (2) information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and (3) the records themselves must have assumed public aspects which render them at least analogous to public document. Noting that it was joining in the consensus of the courts of appeals to have considered the issue, the court then concluded that the records required to be maintained under the Bank Secrecy Act (“BSA”) fall within the required records doctrine. In so holding, the court addressed, in turn, Appellants’ argument that the BSA record keeping provisions failed to meet each requirement under the required records doctrine, primarily focusing on the first requirement—that the records be “essentially regulatory.” Appellants argued that the BSA’s recordkeeping provision is criminal, rather than regulatory, in nature. The court, however, rejected this contention and found that the BSA’s recordkeeping requirements do not apply exclusively to those engaged in criminal activity. Rather, the requirements serve many purposes, a number of which are unrelated to criminal law enforcement. Therefore, it held that the requirements were in fact “essentially regulatory.”

Full Opinion

-W. Ryan Nichols

McAfee v. Boczar, Nos. 12-2481, 13-1088, 13-1356

Decided: December 12, 2013

The Fourth Circuit affirmed the district court’s determination that the defendant, deputy sheriff Christine Boczar, was not entitled to qualified immunity in defense to the plaintiff’s § 1983 claim. However, the Fourth Circuit vacated the district court’s award of attorney’s fees and reduced the award to $100,000.

In December 2010, Eileen McAfee stopped at a house in Powhtan County, Virginia, to help a dog that appeared to be in distress. As McAfee tried to give the dog a treat, the dog accidentally bit her hand, causing McAfee to seek medical treatment at a local hospital. The hospital reported the dog bite to Powhatan County Animal Control. Boczar, an animal control officer, investigated the dog bite. In January 2011, she called McAfee to ask about the dog bite and asked where the dog was housed. McAfee responded that she did not know the address, but could lead Boczar to the dog’s location. Bozcar declined McAfee’s offer and never followed up with her about the dog’s location. Bozcar then spoke with two other people in attempts to locate the dog; neither person knew about the dog’s location. Boczar then attained an arrest warrant for McAfee from a state court magistrate on the grounds that McAfee refused to disclose the location of a possibly rabid animal in violation of state law. McAfee was arrested and subsequently acquitted.

After McAfee was acquitted, she sued Bozcar on three counts: (1) a violation of § 1983 for an arrest in contravention of McAfee’s Fourth Amendment rights, (2) a claim for malicious prosecution, and (3) a false imprisonment claim. At trial, the jury found for McAfee on the § 1983 claim only. The jury did not award any compensatory or punitive damages above McAfee’s $2,943.60 in expenses related to her state defense. The court decided against Bozcar on the issue of qualified immunity. Finally, the court awarded $365,027 in attorney’s fees and an additional $10,000 in costs. Bozcar appealed the district court’s denial of her qualified immunity defense and claimed that the fee award was excessive in violation of law.

On appeal, the Fourth Circuit first affirmed the district court’s determination that Bozcar’s arrest was not subject to qualified immunity. Bozcar’s decision to arrest McAfee is only shielded by qualified immunity if the knowledge that Bozcar possessed was sufficient to convince a person of reasonable caution that McAfee committed offense in violation of state law. The Fourth Circuit agreed that Bozcar did not have sufficient information to convince a reasonable person that McAfee violated state law. Bozcar only spoke to three witnesses, none who suggested that McAfee was refusing to disclose the dog’s location. Furthermore, Bozcar lied to the Magistrate about the facts surrounding McAfee’s arrest, suggesting that Bozcar knew that her evidence did not meet the probable cause standard. Therefore, Bozcar cannot insulate herself from liability under qualified immunity.

Second, the Fourth Circuit determined that the attorney’s fee award was unreasonable. Although McAfee was the prevailing party, the attorney’s fee award grossly overrepresented the success of the verdict. McAfee only received compensation for her uncontested expenses in defending the state law claim. She received nothing on her additional compensatory and punitive damages claims. Furthermore, she received nothing for the causes of action beyond § 1983. Such a minimally successful plaintiff’s verdict was insufficient to support a fee award that was more than 100 times the award for compensatory damages. Therefore, the court vacated the fee award and remanded to the district court with the instructions to return a judgment for attorney’s fees in the amount of $100,000.

Full Opinion

– Wesley B. Lambert

Juniper v. Davis, No. 13-7R1

Filed: December 10, 2013

The Fourth Circuit Court of Appeals reversed the district court’s denial of defendant’s federal habeas corpus petition based on Gray v. Pearson. In Gray, the Fourth Circuit held that a federal habeas petitioner was entitled to independent counsel to pursue the ineffectiveness of state habeas counsel in order to raise procedurally barred “ineffective-assistance-of-trial-counsel” claims in the happenstance that the petitioner is represented by the same counsel in both federal and state habeas proceedings.

While federal habeas proceedings were pending in Gray, the Supreme Court issued Martinez v. Ryan, which announced that, for states like Virginia – where a petitioner can only raise an ineffective assistance claim on collateral review – federal habeas counsel can investigate and pursue the ineffectiveness of state habeas counsel in an effort to overcome the default of procedurally barred ineffective-assistance-of-trial counsel claims. In accordance with Martinez, the Fourth Circuit in Gray held that the petitioner was entitled to independent counsel in his federal habeas proceedings. In fact, it was decided that qualified and independent counsel was ethically required. Therefore, the Fourth Circuit held that a district court must grant the motion for appointment of counsel without regard to whether the underlying motion identifies a “substantial” ineffective assistance claim under Martinez.

Full Opinion

– Sarah Bishop

Durham v. Jones, No. 12-2303

Decided: December 10, 2013

The Fourth Circuit held that the United States District Court for the District of Maryland did not err by denying Sheriff Robert N. Jones’s (Jones) motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), in which Jones claimed qualified immunity from a suit brought by James Durham (Durham).  The Fourth Circuit therefore affirmed the judgment of the district court.

Durham, who was employed as a deputy sheriff in Somerset County, Maryland Sheriff’s Office (SCSO), used physical force and pepper spray to detain a suspect while assisting a Maryland state trooper on August 21, 2008.  After Durham prepared his incident report, multiple SCSO officials tried to force Durham to alter his report and to charge the suspect with assaulting him and resisting arrest.  Though Durham did not think it was proper to alter his report, and though he believed he had no basis to charge the suspect, the SCSO officials used various threats and interrogation techniques to convince Durham to comply.  Durham eventually filed an internal grievance and requested an outside investigation.  The day Durham filed the grievance, Jones demoted him from Deputy First Class to Deputy.  Durham was subsequently suspended with pay until further investigation could be made.  After Durham learned that the subjects of his grievance were also the officials who would investigate the grievance, Durham sent documents detailing his experiences to, inter alia, the Somerset County State’s Attorney, the Governor of Maryland, the Maryland State Police, and various media outlets.  Durham continued to send materials to various officials until Jones issued a “gag order” on September 28, 2008.

In May 2009, Durham was departmentally charged under the Law Enforcement Officers’ Bill of Rights (the LEOBR) with, inter alia, dissemination of departmental information.  In July 2009, the LEOBR Trial Board acquitted Durham of all charges except those relating to dissemination of departmental information; the Trial Board recommended a ten-day suspension as punishment.  However, Jones subsequently informed Durham that he was considering increasing the sanction.  After Durham appeared before Jones for a penalty hearing on September 16, 2009, Durham received notice of his termination.

Durham sued Jones under 42 U.S.C. § 1983, contending that Jones terminated him in retaliation for exercising his First Amendment free speech rights.  The district court denied Jones’s Rule 12(b)(6) motion to dismiss on the basis of qualified immunity; the court subsequently denied Jones’s motions for judgment as a matter of law under Rule 50(a) and Rule 50(b), in which Jones also asserted qualified immunity.  The jury found in Durham’s favor and awarded him $1,112,200 in damages.  Jones appealed, arguing that he did not violate Durham’s First Amendment rights—and that, even if he did violate Durham’s First Amendment rights, these rights were not clearly established.

The Fourth Circuit found that Durham’s speech pertained to a matter of public concern, rejecting the argument that Durham was simply making an internal grievance.  The court also found that the SCSO’s interest in preserving an effective law enforcement agency did not outweigh Durham’s First Amendment rights, noting the seriousness of the underlying matter of public concern and the fact that Jones was unable “to show at trial how Durham’s actions had an adverse impact on the proper functioning of the SCSO in some serious manner.” The Fourth Circuit therefore concluded that Jones violated Durham’s free speech rights under the First Amendment.  Furthermore, the Fourth Circuit found that Durham’s free speech rights were clearly established in September 2009, noting that the court “[has] been clear that where public employees are speaking out on government misconduct, their speech warrants protection.”

Full Opinion

– Stephen Sutherland

United States v. Robertson, No. 12-4486

Decided: December 3, 2013

The Fourth Circuit held that the government did not meet its burden of proving Jamaal Robertson (Robertson) consented to a search conducted by Durham Police Officer Doug Welch (Officer Welch).  The Fourth Circuit therefore reversed the United States District Court for the Middle District of North Carolina’s refusal to suppress evidence seized during the search.

On April 14, 2011, Officer Welch responded to a call reporting an altercation involving three African-American males in white t-shirts.  While responding to the call, Officer Welch noticed a group of people in a sheltered bus stop, three of whom were African-American males in white shirts.  Robertson, who was wearing a dark shirt, was also in the bus shelter.  While other police officers were “dealing with the other subjects at the bus shelter,” Officer Welch focused on Robertson.  Robertson was sitting with his back to the bus shelter’s back wall so that he was blocked by walls on three sides when Officer Welch approached him.  Officer Welch stopped about four yards in front of Robertson and asked Robertson if he had anything illegal on him; Robertson remained silent.  Officer Welch then asked to conduct a search while simultaneously waving Robertson forward to search him.  Robertson stood up, walked toward officer Welch, turned around, and put his hands up.  Officer Welch then recovered a firearm from Robertson.  Because Robertson was a convicted felon, he was indicted for illegal possession of a firearm.  Robertson moved to suppress the evidence seized during the search, arguing that, rather than validly consenting to a search, he submitted to a search to obey an order from Officer Welch.  The district court denied Robertson’s motion to suppress, and Robertson appealed.

Basing its ruling exclusively on the facts garnered from Officer Welch’s testimony, the Fourth Circuit noted the circumstances of the search: around the bus shelter, there were three patrol cars and five armed, uniformed police officers; Robertson saw the other individuals in the bus shelter get “handled by” police officers prior to his interactions with Officer Welch; Officer Welch’s line of questioning was immediately accusatory; Officer Welch—who was blocking Robertson’s only exit—never told Robertson that he had the right to refuse to be searched; and Robertson never gave Officer Welch verbal or written consent.  Therefore, the Court determined that the government did not meet its burden of proving that Robertson consented to the search and reversed the decision of the district court below.

Full Opinion

– Stephen Sutherland

Sandlands v. Horry County, No. 13-1134

Decided: December 3, 2013

The Fourth Circuit affirmed the district court’s grant of summary judgment in favor of Horry County, thereby validating its Flow Control Ordinance that prohibits disposal of waste generated in Horry County at any site other than a designated publicly owned landfill.

Horry County occupies the northernmost coast section of South Carolina and landfill waste disposal there has been expensive and difficult. Consequently, in 1990 the County Council established the Horry County Solid Waste Authority, Inc. (“SWA”), a nonprofit corporation, to manage the county’s solid waste. The SWA is a public entity, which owns and operates two landfills and a recycling facility in Horry County. The SWA charges haulers and others who use its landfills “tipping fees” based on the tonnage of trash deposited, which provides revenue to fund SWA operations. Haulers who recycle a specified percentage of the waste they collect pay a reduced tipping fee through an application-based recycling incentive program. On March 17, 2009, the Horry County Council enacted Ordinance 02-09 to create a county-wide plan for solid waste disposal. It has been largely successful in ensuring that waste generated in Horry County is deposited at an approved landfill within the county. The remaining 1,844 tons of waste were taken to four landfills outside of the county, most of which was not “acceptable waste” under the Flow Control Ordinance—in other words, it was waste that the SWA landfills could not process. The enactment of the Ordinance altered the local economy of waste management. For example, Sandlands, which operates a private landfill for C&D waste in neighboring Marion County, South Carolina saw a significant decrease in its business. As an alternate business strategy, Sandlands attempted to open a facility to process recovered materials at its Marion County site, where it would have sorted general C&D debris into recyclable materials and landfill-ready waste. When Sandlands requested permission from Horry County to remove mixed C&D debris for this purpose, a representative from the Horry County Attorney’s Office responded that debris containing non-separated materials is still solid waste subject to the requirements of the ordinance.

On appeal, appellants argued that the Flow Control Ordinance violates the Equal Protection Clauses of the United States and South Carolina Constitutions, the Commerce Clause of the United States Constitution, and the Contract Clauses of the United States and South Carolina Constitutions.

The appellants first argued that there was a Commerce Clause violation and a Dormant Commerce Clause violation. The Fourth Circuit explained that a Dormant Commerce Clause violation will exist where a restriction on commerce is discriminatory—that is, it benefits in-state economic interests while burdening out-of-state economic interests. In United Haulers, the Supreme Court upheld flow control ordinances remarkably similar to the one at issue here, requiring haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. Under United Haulers, the court must first determine whether the Flow Control Ordinance discriminates against interstate commerce. In United Haulers, the Court determined that flow control ordinances favoring the government while treating in-state private business interests exactly the same as out-of-state ones do not discriminate against interstate commerce. Like the ordinances in United Haulers, the Horry County Flow Control Ordinance benefits a clearly public facility. Because trash disposal is a traditional function of local government, county waste-management ordinances can permissibly distinguish between private and public facilities. However, the ordinance must treat all private businesses alike. Therefore, contrary to Appellants’ argument, the question was whether Sandlands has been treated differently from other private businesses – not other public entities. In addition, because appellants had not been treated differently from other private businesses, Horry County had not discriminated against them by prohibiting them from processing and sorting mixtures of acceptable waste and recyclables at their facility in Marion County.

Because the Flow Control Ordinance was not discriminatory, the Fourth Circuit then considered its burdens and benefits under Pike. In Pike, the Supreme Court held that if a “statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Again pointing United Haulers, the Court there held that flow control ordinances do address a legitimate local public interest. It did not decide whether the ordinances imposed any incidental burden on interstate commerce because it found that any arguable burden does not exceed the public benefits of the ordinances. The same analysis was applicable to the Horry County Flow Ordinance because it clearly conferred public benefits that outweigh any conceivable burden on interstate commerce. To begin, the Ordinance had only an arguable effect on interstate commerce, even if it did affect intrastate commerce to some degree. In addition, it produces the same benefits that the Supreme Court recognized in United Haulers. Moreover, the Ordinance’s waste-management program was a quintessential exercise of local police power. And finally, the ordinance created a revenue stream through which the county supports waste management, recycling programs, and its 911 calling system.

The Fourth Circuit also rejected appellants’ argument that summary judgment was not appropriate because a factual dispute existed about whether the Ordinance discriminated against interstate commerce. The record revealed no disputes of material fact.

Finally, the Fourth Circuit rejected Appellants’ Equal Protection Clause claim. To succeed on such claims, the Appellants had to first demonstrate that it had been treated differently from others similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. If a party can make that initial showing, the court analyzes the disparity under an appropriate level of scrutiny. However, the Fourth Circuit did not reach that level of analysis because Sandlands and EDS failed to show that they were intentionally treated differently from other similarly situated companies.

Full Opinion

– Sarah Bishop

United States v. Hunter, No. 12-5035

Date Decided: November 13, 2013

In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits life imprisonment without possibility of parole for juvenile offenders. Criminal defendant, Jimmy Hunter claimed that Miller similarly prohibited sentencing enhancements based on felonies he committed as a juvenile. The Fourth Circuit disagreed.

At age thirty-three, Hunter sold a gun and ammunition to a confidential FBI informant. Defendant was indicted and pled guilty to knowingly possessing a firearm after a felony conviction. This crime typically carries a maximum sentence of ten years imprisonment. However, the probation officer recommended that Hunter receive a fifteen-year sentence under the Armed Career Criminal Act because he had more than three previous violent felony convictions. In fact, Hunter had five prior violent felony convictions: two of the felonies occurred when Hunter was fifteen, two occurred at age seventeen, and a fifth felony occurred when Hunter was twenty-five. Hunter argued that, under Miller, the juvenile convictions could not support the sentencing enhancement. The district court judge disagreed and sentenced Hunter to seventeen years’ imprisonment.

On appeal, Hunter argued that the sentencing enhancement violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The Fourth Circuit disagreed. The court explained that in Miller and other cases examining sentencing of juveniles, the Supreme Court emphasizes that children receive more lenient treatment because of their “diminished culpability and greater prospects for reform.” While the defendants in Miller received life imprisonment for a murder committed at age fourteen, in Hunter’s case, the defendant faced punishment for a crime he committed at age thirty-three, an age exceeding concerns about maturity and prospects for reform. Furthermore, the Fourth Circuit emphasized that a sentencing enhancement is not punishment for past crimes. Instead, it is an aggravated offense because it is a repetitive one. Additionally, other circuits agree that juvenile offenses can properly serve as grounds for a sentencing enhancement for a post-majority conviction. The Fourth Circuit concluded by reinforcing that Hunter was “no juvenile when he committed the crime for which he was sentenced here” and thus, the Eighth Amendment concerns in Miller did not apply to Hunter’s present conviction.

Full Opinion

– Wesley B. Lambert

Wilkins v. Gaddy, Inc., No. 12-8148

Decided: November 1, 2013

The Fourth Circuit upheld the constitutionality of § 1997e(d)(2) of the Prison Litigation Reform Act of 1995 that caps attorneys’ fee award that a successful prisoner litigant may recover from the government in a civil rights action at 150 percent of the value of the prisoner’s monetary judgment.

Jamey Wilkins, a prisoner, filed a civil rights action against Officer Gaddy, a guard at the prison where he was incarcerated, where he alleged that Officer Gaddy opened his cell and physically harmed him by pinning, kicking, and punching him. Wilkins claimed various health complications resulting from the incident and sought damages. In his first action, Wilkins alleged that Officer Gaddy’s conduct violated the Eighth Amendment prohibition on cruel and unusual punishment. Ultimately, the Supreme Court agreed with Wilkins, but did not determine the appropriate amount of damages for his injury. At the trial to determine the amount of damages, the jury awarded only nominal damages of $0.99. Wilkins filed a motion to claim over $92,000 in attorneys’ fees as the prevailing party. The court declined to award the attorneys’ fees, citing § 1997e(d)(2) that caps attorneys fees for prisoner litigants at 150 percent of the monetary award. Wilkins argued that the fee shifting violated his equal protection rights under the Fifth Amendment. He claimed that statutes involving the rights of prisoners deserved a heightened sense of scrutiny; and, in the alternative, that the statute did not pass rational basis review.

First, the Fourth Circuit held that the statute at issue did not warrant a heightened standard of review. Although Wilkins admitted that prisoners are not a suspect class that warrants strict scrutiny, he argued that the unique characteristics of prisoners, including the inability to protect themselves in political processes and historical discrimination against prisoners, demanded a more searching form of rational basis. The Fourth Circuit disagreed finding that, “[b]ecause breaking the law is a voluntary act and many prisoners will eventually be released, the ‘status of incarceration is neither an immutable characteristic…nor an invidious basis of classification’” that warrants heightened scrutiny. Furthermore, the court concluded that it would be “ironic” to for the law to provide greater protection to those who had broken it.

Second, the Fourth Circuit held that § 1997e(d)(2) passed rational basis review. The Court cited the government’s legitimate objective of limiting the vast number of prisoner suits, in part, by capping the amount that attorneys can recover in fees. By limiting the amount for possible fees, Congress likely intended that many claims that lacked merit would not clog the courts’ dockets because prisoners are unlikely to find counsel for claims which have only a small opportunity for a fee recovery. Furthermore, the court emphasized the government’s goal of protecting public funds by limiting the amount of attorneys’ fees that the public treasury must pay. Therefore, the court upheld the constitutionality of § 1997e(d)(2).

Full Opinion

– Wesley B. Lambert

United States v. Hashime, No. 12-5039

Decided:  October 29, 2013

The Fourth Circuit reversed Faisal Hashime’s convictions on multiple counts related to child pornography and remanded the case for further proceedings because law-enforcement agents did not read Hashime his Miranda rights until well after he made numerous self-incriminating statements during an interrogation that occurred while law-enforcement agents searched his home.

In November 2010, a law-enforcement agent with Immigration and Customs Enforcement’s Homeland Security Investigations unit (“HSI”) discovered a naked picture of a minor boy while monitoring a website used to exchange child pornography that had the caption “Email me, [email protected] In July 2011, the agent sent an email to the aforementioned address, asking to trade child pornography images.  In return, the agent received twenty-four images of a naked boy.  HSI traced the email account’s associated IP address and discovered that someone in the Hashime family home utilized the email account.  Based on that information, law enforcement obtained a search warrant for the email account and the Hashime’s home.  On May 18, 2012, a team of 15-30 state and federal agents executed the search warrant.  The team was equipped with a battering ram and, upon arrival, banged on the entrance to the home yelling, “Open the door.”  Hashime, who was 19 years old at the time, was living with his parents while attending a local community college.  The agents were let into the home by Hashime’s aunt and moved into the home with their guns drawn.  One of the officers entered Hashime’s bedroom and pointed a gun at him while he was in bed, naked and asleep.  The officer ordered Hashime out of bed and, after allowing him to put on boxer shorts, escorted Hashime by the arm out to the front lawn, where officers were keeping Hashime’s other family members outside.

When law enforcement finally allowed the family back into the home, they were quarantined in the living room while the officers completed their search.  Hashime was not allowed to use the bathroom until the officers completed their search and Hashime was given his clothes, but was not provided with shoes or socks.  Hashime’s mother, who was recovering from brain surgery, was not allowed to lie down.  All of Hashime’s family members were instructed that they had to be accompanied by officers at all times and the agents proceeded to interrogate each one of them individually.   Two officers escorted Hashime to the basement for questioning and the officers chose to conduct the interrogation in a room that was being used for a storage area.  According to Hashime’s mother, the officers told her that her son was under arrest.  The officers secretly recorded the interrogation of Hashime and lied to Hashime about whether they were recording the conversation.  The officers also told Hashime that he did not have to answer their questions and could leave at any time, but, at some point during the interrogation, one of the officers told Hashime, “I need to know, and I need you to be completely honest with me here even if you’re afraid, I don’t care if you say I don’t want to answer that or I’m afraid to answer it, but I need to know the truth.”  The agents did not read Hashime his Miranda rights until over two hours into the interrogation.  During the interrogation, Hashime admitted to having child pornography on his computer and provided details about how he obtained the photographs.  Hashime also provided the password to his computer and instructed the officers how to find the photographs on his hard drive.

Hashime was indicated on seven counts of production, distribution, receipt, and possession of child pornography in violation of federal law.  Prior to his trial, Hashime moved to suppress the statements made to law-enforcement agents during the interrogation.  Hashime argued that he was in custody at the time of the interrogation and, because he did not receive his Miranda warnings, his statements should be suppressed.  The district court denied the motion.  The district court asserted that Hashime’s demeanor during the interrogation, his familiarity with law-enforcement practices, and his apparent lack of concern with an imminent arrest led to the conclusion that Hashime believed he was free to leave and end the interrogation at any time.  Hashime subsequently pled guilty to the receipt and possession charge, but the government pressed forward and chose to prosecute Hashime on the production and distribution charges.  Hashime was convicted of these other counts following a bench trial.  Hashime appealed and argued that his conviction should be reversed because the law-enforcement officers failed to read him his Miranda rights at the beginning of the interrogation.

The Fourth Circuit explained that, generally, law enforcement officers are required to inform individuals in custody of their Miranda rights prior to interrogation.  In order to determine whether a defendant, not under formal arrest, was in custody for the Miranda requirements to apply, the court will look at the totality of the circumstances to make an objective inquiry into whether a reasonable person in the individual’s situation would have thought they were in custody.  The Fourth Circuit noted that the government conceded it interrogated Hashime, but argued that Hashime was not in custody so agents were not required to provide Miranda warnings.  The government’s argument rested on two grounds:  “law enforcement’s conduct toward and statement to Hashime prior to and during the interrogation, and Hashime’s tone and demeanor during the interrogation.”  With respect to law enforcement’s conduct, the Fourth Circuit concluded that even though law enforcement told Hashime that he did not have to answer any of their questions and he was free to leave, the broad setting of the entire search and interrogation, including the fact that Hashime was isolated from his family during the interrogation, would lead a reasonable person to believe he was in custody.  Importantly, the Court noted that Hashime and his family were unable to move freely throughout their own home.  The Court pointed to the fact that Hashime and his family, even though they were in their own home, were required to have law enforcement escort where they went in the house changed the entire setting of the interrogation.  Because the family had lost control of their home, the fact that the interrogation was conducted in his basement did not change the fact that the interrogation was conducted in a custodial setting.

Turning to the government’s argument that Hashime’s tone and demeanor during the interrogation demonstrated that Hashime did not believe he was in custody, the Court held that such factors were not dispositive of the custodial inquiry.  Rather, the Court provided that Hashime’s attitude was more of a subjective factor that went primarily to the voluntariness of his confession and had no real bearing on the objective inquiry into whether Hashime believed he was in custody at the time of the interrogation.  Instead, an objective inquiry should be more directed towards the conduct of law enforcement and how a reasonable person would interpret their actions.  Therefore, the Court held that Hashime was in custody for the purposes of Miranda and that law enforcement’s failure to read him his Miranda rights made his testimony inadmissible and required that the conviction be reversed.  The Fourth Circuit further related that because Hashime’s conviction was reversed on the Miranda issue, the Court chose not to render a decision on Hashime’s challenge to his sentencing under the Eighth Amendment.

Full Opinion

– John G. Tamasitis

Colon Health Centers of America v. Hazel, No. 12-2272

Decided: October 23, 2013

The Fourth Circuit Court of Appeals reversed and remanded the district court’s dismissal of plaintiffs’ Commerce Clause claim against the state of Virginia, for hindering the plaintiffs from opening facilities in the state through a certificate-of-need requirement. However, the Fourth Circuit affirmed the district court’s dismissal of plaintiffs’ Fourteenth Amendment claims.

Virginia requires medical providers to obtain a “certificate of public need” in order to launch a medical enterprise in the state. Applicants must demonstrate to the State Health Commissioner that a sufficient public need exists for the proposed medical services. The certificate application process is potentially lengthy, costly, and unpredictable. Plaintiffs, Colon Health Centers and Progressive Radiology, are medical providers who sought to avoid the burdens of this process. Colon Health combines the advantages of the two prevailing colon-cancer screening methods in a “one-stop shop” that screens, diagnoses, and treats colon cancer, all in one visit. Progressive Radiology specializes in using magnetic resonance imaging to diagnose neurological and orthopedic injuries.

On appeal, the plaintiffs challenged the certificate program as a violation of the dormant Commerce Clause and the Fourteenth Amendment’s Equal Protection, Due Process, and Privileges or Immunities Clauses.

With respect to the dormant commerce clause argument, the Fourth Circuit held that the district court erred in dismissing plaintiffs’ claim. The Court remanded for a factual investigation by the lower court as to whether the certificate program has a discriminatory effect on interstate commerce. In order to prove discriminatory effect, plaintiffs must demonstrate that the challenged statute would negatively impact interstate commerce to a greater degree than intrastate commerce. State laws that discriminate against interstate commerce can be per se invalid in three ways: facially, in practical effect, or in purpose. Under strict scrutiny analysis, a court must invalidate the challenged law unless the state demonstrates that it serves a legitimate purpose, which could not be better served by available nondiscriminatory means. In this case, plaintiffs alleged discrimination in both purpose and effect. Because the purpose of Virginia’s certificate program is to protect current healthcare providers from competition, the plaintiffs alleged the purpose is to protect in-state entities at the expense of out-of-state entrants. Because the certificate application process requires a lengthy fact-finding process, the plaintiffs alleged it grants in-state economic interests the power to obstruct the market entrance of new-, primarily out-of-state competitors. The Fourth Circuit held that determining whether Virginia’s certificate-of-need law discriminates, in either purpose or effect, necessarily requires looking behind the statutory text to the actual operation of the law, i.e. by proper fact-finding. In any event, plaintiffs’ claims of discrimination are sufficient to raise their right to relief above the speculative level and, therefore, satisfy the standard for surviving a motion to dismiss.

Moreover, even if the Virginia law discriminates neither in purpose nor in effect, it may still be unconstitutional under Pike v. Bruce Church, Inc., if it places an “undue burden” on interstate commerce in relation to the putative local benefits, under a rational basis test. The plaintiffs argued that Virginia’s certificate requirement does not actually achieve any legitimate local benefits. Because the challenge presented issues of fact that cannot be properly resolved on a motion to dismiss, the Fourth Circuit held that the district court erred in dismissing appellant’s Pike claim. However, The Fourth Circuit directed the lower court on remand to focus primarily on the discriminatory effects test, rather than the Pike test, which fails to properly cabin the judicial inquiry or effectively prevent the district court from assuming a super-legislative role. Under the discriminatory effects test, the proceedings must investigate the differential burdens imposed on out-of-state and in-state firms subject to the certificate-of-need process.

Regarding the plaintiffs Fourteenth Amendment claims, the affirmed the district court’s dismissal. First, plaintiffs’ alleged a violation of the Equal Protection clause, which centered on the state’s treatment of nuclear cardiac imaging, which is exempted from the certificate-of-need requirement, although similarly situated to other types of medical imaging. However, non-suspect classifications are accorded a strong presumption of validity. The Fourth Circuit held that Virginia articulated sufficient justifications for the nuclear cardiac imaging exemption to survive rational basis scrutiny. Next, plaintiffs alleged a violation of the Due Process clause, contending that the certificate program irrationally burdened their right to earn a living and failed to advance any state purpose other than bald economic protectionism. Because the program does not infringe on a fundamental right, it is subject to rational basis scrutiny, which is quite deferential. In addition, the Fourth Circuit held the certificate program served a variety of legitimate purpose. Finally, plaintiffs alleged a violation of the Privileges or Immunities Clause, contending that the certificate program contravenes the “right to earn an honest living” embodied in the clause, which provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” However, the plaintiffs conceded that the Supreme Court’s decision in Slaughter-House Cases confined the reach of this clause to a set of national rights that does not include the right to pursue a particular occupation.

Full Opinion

– Sarah Bishop

United States v. George, No. 12-5043

Decided: October 16, 2013

The Fourth Circuit, finding that Officer Roehrig had a reasonable suspicion that Decarlos George (“George”) was armed and dangerous, held that the protective frisk did not violate George’s Fourth Amendment rights and therefore affirmed the district court’s decision denying George’s motion to suppress evidence of the handgun and the judgment of the court.

At 3:30 a.m., while patrolling one of Wilmington’s high crime areas, Officer Roehrig observed a dark-colored station wagon, containing four male occupants, closely and aggressively following another vehicle—within a car’s length—as if in chase. During which time, the two vehicles made illegal right-hand turns through a red light at approximately twenty to twenty-five miles per hour. Following the turn, Officer Roehrig pulled behind the two vehicles causing the station wagon to slow down and make a left-hand turn, breaking off the apparent chase. The station wagon subsequently made three additional left-hand turns in an apparent effort to determine whether Officer Roehrig was following the vehicle. When Officer Roehrig decided to stop the station wagon for its aggressive driving and red light violation, he called for backup, which was answered by Officer Poelling. Upon Officer Poelling’s arrival, Officer Roehrig approached the vehicle. George, who was seated behind the driver’s seat, was holding up his I.D. card with his left hand, while turning his head away from Officer Roehrig’s view. His right hand was on the seat next to his leg and was concealed from view by his thigh. Officer Roehrig instructed George to place both of his hands on the driver’s seat headrest, but George placed only his left hand on the headrest. According to Officer Roehrig’s testimony, he requested George move his hand four or five times more before he ultimately complied; still, he did not make eye contact. Officer Roehrig then proceeded to speak with the driver and ultimately, after consulting with Officer Poelling, decided to remove all four passengers from the car in order to interview them separately. Officer Roehrig then directed George to step out of the vehicle. As George was doing so, he dropped his wallet and cell phone onto the ground. As George attempted to bend over and retrieve his possessions, Officer Roehrig, fearing such action would create an increased risk that George would reach for a weapon, stopped him and performed a protective frisk, uncovering a handgun. Officer Roehrig then placed George under arrest and, upon checking his criminal history, discovered that he was a convicted felon and that the handgun was stolen. George was charged and pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).  Before pleading guilty, however, George filed a motion to suppress evidence of the handgun on the ground that it resulted from an unlawful frisk in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. The district court denied George’s motion to suppress. Consequently, he entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion. This appeal followed.

On appeal, the Fourth Circuit held that, based upon the “totality of the circumstances,” Officer Roehrig’s protective frisk was supported by objective and particularized facts sufficient to give rise to a reasonable suspicion that George was armed and dangerous. In so holding, the court explained seven factors contributing to its finding of reasonable suspicion. The most important factor, according to the court, was George’s movements in the vehicle when Officer Roehrig initially approached.

Full Opinion

-W. Ryan Nichols

Educational Media Co. v. Insley, No. 12-2183

Decided: September 25, 2013

The Fourth Circuit held that a Virginia regulation preventing the printing of alcohol advertisements violated the First Amendment as applied to college student newspapers.

The Virginia Alcoholic Beverage Control Board (the “ABC”) prohibits college student newspapers from printing alcohol advertisements (the “Ban”). The college student newspapers at the University of Virginia and Virginia Tech (collectively “College Newspapers” or “Plaintiffs”) challenged the Ban as an unconstitutional restriction of commercial speech under the First Amendment. ABC defended the Ban on the grounds that it serves the state’s objective of combating underage and abusive college drinking. Both parties moved for summary judgment. At the hearing, the parties presented conflicting expert testimony as to the effect of advertising on demand for alcohol. The ABC’s expert economist argued that advertising for alcohol on a college campus met a very targeted audience, and thus, unlike alcohol advertising in other forms, has a substantial effect on demand. The College Newspapers countered with considerable evidence that advertising for alcohol has little to no effect on overall demand and established that a majority of their readers are of legal drinking age. Ultimately, the district court granted summary judgment for ABC, finding that the Ban did not violate the First Amendment. The College Newspapers appealed.

On appeal, the Fourth Circuit began by noting that restrictions on commercial speech are less suspect than restrictions on other forms of speech, and need only survive intermediate scrutiny. The College Newspapers argued that the court should examine the Ban under strict scrutiny based on the Supreme Court’s recent decision in Sorrell v. IMS Health Inc., where the court invalidated a Vermont law that regulated pharmacy advertising. The court declined to decide whether strict scrutiny applied, however because the court found that the Ban failed under intermediate scrutiny as defined in Central Hudson. Under Central Hudson, a regulation of commercial speech will be upheld if (1) the regulated speech concerns lawful activity and is not misleading; (2) the regulation is supported by a substantial government interest; (3) the regulation directly advances that interest; and (4) the regulation is not more extensive than necessary to serve the government’s interest.

The Fourth Circuit found that the Ban violated the Central Hudson test as applied to the Plaintiffs. The court held that there was no controversy as to the first, second, and third element. First, alcohol advertising is clearly a legal activity. Second, Virginia has a substantial government interest in combatting underage and abusive drinking on college campuses. Third, the Ban advances the stated government interest given that there is a general correlation between advertising of a product and demand for that product. Moreover, if the alcohol vendors did not believe that they could affect demand by advertising, they would not seek to advertise in the College Newspapers. However, the court held that the Ban failed under the fourth element because it was more extensive than necessary to serve the government interest. The Fourth Circuit held that the Ban prohibited large numbers of adults who are of legal drinking age from receiving truthful information about a product that they are legally allowed to consume. The court cited the Supreme Court’s statement that states may not “seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, non-misleading advertisements.” Therefore, the court held that the district court erred in finding that the Ban was appropriately tailored to achieve its object of reducing abusive college drinking and reversed the district court, finding that the Ban violated the First Amendment as applied to the College Newspapers.

Full Opinion

– Wesley B. Lambert

Bland v. Roberts, No. 12-1671

Decided: September 18, 2013

 The Fourth Circuit affirmed in part and reversed in part the district court’s order granting summary judgment against six plaintiffs in their action against the Sheriff of the City of Hampton, Virginia for his alleged retaliation against them in violation of their First Amendment rights. The Fourth Circuit also remanded the case for trial with respect to some of the claims.

B. J. Roberts, the Sheriff for the City of Hampton, was up for re-election in November 2009 and had been challenged in his reelection bid by Jim Adams, who had worked in the Sheriff’s Office for 16 years and had attained the rank of the third most senior officer.  Notwithstanding laws and regulations prohibiting the use of state equipment or resources for political activities, Sheriff Roberts used his office and the employees he controlled to further his reelection efforts.  Sheriff Robert won reelection in November 2009 and subsequently reappointed 147 of his 159 full-time employees.  The six plaintiffs, all former employees of the Hampton Sheriff’s Office (“the Sheriff’s Office”), were not reappointed to their positions. The plaintiffs filed suit in federal court against Sheriff Roberts, in his individual and official capacity, alleging that he violated their First Amendment right to free association when he refused to reappoint them because they failed to support his reelection bid.  In addition, four of the plaintiffs alleged that the Sheriff violated their First Amendment right to free speech when he refused to reappoint them because of various speeches they made in support of his opponent’s campaign.  The plaintiffs sought compensation for lost back pay and reinstatement in their former positions. Sheriff Roberts moved for summary judgment and the district court granted it.

With respect to the free speech claims, the district court concluded that the plaintiffs all failed to allege that they engage in expressive speech.  Regarding the association claims, the district court concluded that the plaintiffs had failed to establish a causal relationship between their support of Adams’s campaign and their non-reappointment.  Finally, the district court held that, even assuming that the sheriff did violate the plaintiffs’ First Amendment rights, he was entitled to qualified immunity on the individual capacity claims and Eleventh Amendment immunity on the official capacity claims.

On appeal, the Fourth Circuit concluded that, with respect to the free association claims, some of plaintiffs at least created a genuine factual dispute regarding whether the sheriff violated their rights; however, three of the plaintiffs did not.  The Court made a distinction based on the positions of the plaintiffs finding that the claims made by the uniformed jailers, that held the title of Sheriff’s deputies, had to be subjected to a Jenkins’s analysis. This required looking at the duties of the deputies in question and determining if political loyalty was appropriate requirement for the effective performance of their public employment as deputies. Based on the formal job descriptions provided, the Court held that the plaintiffs in this case did not exercise the “significant discretion” that North Carolina deputies normally exercise. Therefore, the Sheriff, at this point in the proceedings, had not established that the jailers’ arrest duties were “sufficiently significant” that they would affect whether their political allegiance to the share was an appropriate requirement for their effective performance of their jobs. With regards to the causation analysis for the free association claims, the Court concluded that the three jailers had at least created genuine factual disputes as to whether their lack of political allegiance to the Sheriff was a substantial basis for the decision not to reappoint them. On the other hand, the three non-deputy administrative employees could not establish a causal relationship between their non-reappointment and their lack of political allegiance to the Sheriff and the Court affirmed summary judgment with respect to their claims.

The Court next turned to the merits of the free-speech claims. Again, the Court agreed that the uniform jailers at least created general factual disputes regarding whether the Sheriff violated their free speech rights, but the non-sworn administrative employee did not.  In its analysis the Fourth Circuit first addressed whether the conduct that the employees maintained led to their non-reappointment constituted speech at all.  The Court held that “liking” the Adams’s campaign page on Facebook or posting a comment on the page qualified as speech and was also a form of symbolic expression.  The Court reasoned that clicking the “like” button on a campaign page is similar to placing a political candidate’s yard sign in a front yard. The Court also held that statements made by an employee at the polling place also constituted speech. Next, the Court quickly addressed whether the employees were speaking as a private citizen on a matter of public concern and found that employees’ conduct satisfied this element. The Court concluded that the employees’ interest in expressing support for his candidate outweighed the Sheriff’s interest in providing effective services to the public. Finally, as was the case with the free association claims, the Court found that the uniform jailers created a factual dispute regarding whether their speech was the cause for their non-reappointment.

The Fourth Circuit then addressed the Sheriff’s immunity defenses. With respect to the Eleventh Amendment immunity, the Court agreed with the plaintiffs that this immunity does not bar claims advanced against the Sheriff in his official capacity, to the extent that the plaintiffs were seeking the remedy of reinstatement because that relief was prospective in nature.  Regarding the qualified immunity defense, the Court held that the Sheriff was entitled to qualified immunity concerning the uniformed jailers claims because, following his election, the sheriff could have believed he had the right to choose not to reappoint his sworn deputies for political reasons. The Court reasoned that the Fourth Circuit’s decision in Jenkins sent “very mixed signals.” As a result, the Court concluded that the Sheriff could have believed that he was authorized to terminate any of his deputies for political reasons. Therefore, the district court properly ruled that the Sheriff was entitled to qualified immunity with regards to the plaintiffs’ claims seeking money damages against the Sheriff in his individual capacity.

Full Opinion

– John G. Tamasitis

United States v. Jackson, No. 12-4559

Date Decided: August 26, 2013

The Fourth Circuit affirmed the district court’s conclusion that the police’s search of the defendant’s trashcan did not violate the defendant’s Fourth Amendment rights.

Around 4:00 a.m. on May 26, 2011, Richmond police officers pulled two garbage bags from a trash can located behind the apartment of Sierra Cox under the suspicion that Defendant Dana Jackson was selling drugs from the apartment. Jackson was Cox’s boyfriend and regularly stayed at the apartment. The layout of the apartment and surrounding areas was particularly important to the district court’s ruling. The court explained that the apartment was a row-type housing unit. Beyond the back door, each unit had a ten by twenty-foot patio that connected to a common sidewalk running the length of the building. Between the patio and a sidewalk ran a narrow strip of grass. Finally, beyond the patio and sidewalk, there was a courtyard that served as a common area.  The officers testified that the trashcan was partially on the patio and partially on the strip of grass beyond the patio. They further explained that they recovered two trash bags by stepping onto the grass and pulling the bags out of the trashcan. The officers claimed that they did not have to step onto the patio to recover the trash.

After recovering items in the trash bags consistent with drug trafficking, the police obtained a warrant and searched the home. In the home, the police found ample evidence of drug trafficking including firearms, scales, a large amount of cash, and other drug paraphernalia. At trial, Jackson moved to suppress the evidence obtained in the trash pull. Jackson argued that the search was unconstitutional under the Fourth Amendment’s prohibition on unlawful search and seizure on two grounds: first, because the police physically intruded on a constitutionally protected area, and second, because he had a reasonable expectation of privacy to the contents of the trash can. The district court dismissed both arguments and sentenced Jackson to 137 months imprisonment. Jackson appealed the district court’s ruling.

On appeal, Jackson first argued that the district court’s factual finding regarding the location of the trashcan was clearly erroneous. Cox testified that she often kept the trashcan chained and locked on her patio. She claimed that she unlocked the trashcan only to move it to the curb. Nevertheless, she could not say definitively where the trashcan was located on the day in question. In contrast, the officers testified with great precision about the location of the trashcan. The Fourth Circuit held that the discrepancy of the testimony, the differences in specificity, and the district court’s unique ability to evaluate the credibility of witnesses rendered the district court’s decision not clearly erroneous.

Jackson next argued that the officers’ actions involved an unlicensed physical intrusion of a constitutionally protected area so as to constitute an illegal search or seizure under the Fourth Amendment. Jackson contended that that the trash can was located within the “curtilage” of the home, that is, the “area immediately surrounding and associated with the home…[treated] as part of the home itself for Fourth Amendment purposes.” The Fourth Circuit, after conducting a de novo review, disagreed. The court acknowledged that if the trash can fell within the home’s curtilage, the officers were required to obtain permission to gather information under the Fourth Amendment. The parties stipulated that the curtilage of Cox’s apartment included the concrete patio behind her home. Beyond the patio, the parties disagreed as to whether the curtilage extended to the grass strip and the sidewalk behind the apartment. The Fourth Circuit held that the apartment’s curtilage did not extend beyond the patio.  The grass strip where the officers conducted the trash pull was at least twenty feet from the apartment’s back door. Furthermore, the trashcan was not included in an enclosure or shielded from public view. Most importantly, everything beyond the strip of grass was a “common area” used by all residents. Thus, the court held that because the officers “did not physically intrude upon a constitutionally protected area” Jackson was not entitled to relief under this “property-based approach” to the Fourth Amendment.

Finally, Jackson argued that the officers’ actions violated his Fourth Amendment by infringing on Jackson’s reasonable expectation of privacy in the trashcan’s contents. The Fourth Circuit found the situation fell under the Supreme Court’s Greenwood decision and disagreed. In Greenwood, the Supreme Court held that defendants’ Fourth Amendment rights were not violated where the police obtained the defendants garbage from the trash collector when he picked up the defendants’ garbage from the curb. The court concluded that the defendants had “exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection.” The court acknowledged that the present case differed slightly because the garbage at issue in this case was located behind the house rather than in front of the house for pickup, but nevertheless concluded that there was no reasonable expectation of privacy. The garbage can was easily accessible to all passing through the common area. Moreover, Cox testified that the trashcan contained contents that she “want[ed] to get rid of” and stuff that she “didn’t want anymore.” Therefore, the Fourth Circuit concluded that the Richmond Police’s trash pull did not offend Jackson’s Fourth Amendment rights and affirmed the district court’s decision to deny Jackson’s motion to suppress and the subsequent conviction.

Full Opinion

– Wesley B. Lambert

Hill v. Crum, No. 12-6705

Decided:  August 14, 2013

The Fourth Circuit held that Correctional Officer William Crum (“Crum”) was entitled to qualified immunity regarding inmate Demetrius Hill’s Bivens action.  The Fourth Circuit therefore reversed the order of the United States District Court for the Western District of Virginia, and remanded the case to the district court with instructions to enter judgment in favor of Crum.

On November 1, 2007, Crum allegedly assaulted Demetrius Hill (“Hill”) after Hill’s cellmate broke a fire sprinkler.  According to Hill, Crum punched him in the abdomen and ribs, elbowed him in the side of his head, and shouted “break another sprinkler, I’ll break your neck.”  Crum moved Hill to a holding cell after the assault, knocking Hill’s head against a gate in the process.  Hill alleged that the assault resulted in a bruised rib, temporary dizziness, and a vicious headache.  Video footage of Hill in his new cell did not indicate visible distress, though Hill alleged he had a swollen eye.  Nurse Theresa Meade (“Meade”) examined Hill while he was in the holding cell, and found that he did not have any injuries.  In April 2008, Hill brought a Bivens action in the district court against eleven prison officials.  Though Hill did not list Crum as a defendant in the complaint, he subsequently amended his pleading, including a separate excessive force claim against Crum based on the alleged assault.  Relying on Norman v. Taylor, 25 F.3d 1259, the district court dismissed Hill’s excessive force claim against Crum, and Hill appealed.  While Hill’s appeal was pending the Supreme Court decided Wilkins v. Gaddy, 559 U.S. 34, which abrogated Norman.  The Fourth Circuit therefore vacated the district court’s dismissal and remanded the case.  The case went to trial on remand.  At trial, Crum twice moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) on the basis of qualified immunity.  The district court denied Crum’s motions, and the jury issued a verdict in favor of Hill.  After the trial, Crum moved for a new trial and for judgment as a matter of law; the district court granted Crum’s new trial motion but denied his Rule 50(b) motion.  Crum appealed the denial of his motion for judgment as a matter of law.

On appeal, the Fourth Circuit noted that the Wilkins Court rejected the Fourth Circuit’s approach in Norman, under which a plaintiff cannot prevail on an excessive force claim if, absent extraordinary circumstances, the plaintiff’s injury was no more than de minimis.  However, the Supreme Court decided Wilkins in 2010—several years after Crum’s alleged assault.  Thus, the Fourth Circuit found that Crum did not violate the court’s clearly established law in existence on November 1, 2007, as he inflicted no more than de minimis injuries on Hill.  Furthermore, the assault did not involve “extraordinary circumstances”:  It involved mere brute force rather than torture, humiliation, or degradation, and Hill’s injuries were not painful enough to constitute “more than de minimis injury.”

Full Opinion

– Stephen Sutherland

Santos v. Frederick County Board of Commissioners, No. 12-1980

Decided: August 7, 2013

Addressing Roxana Orellana Santos’s (“Santos”) appeal from the District Court for the District of Maryland’s dismissal of her 42 U.S.C. § 1983 action against the Frederick County Board of Commissioners, the Frederick County Sheriff, and two deputy sheriffs (“Defendants”), the Fourth Circuit affirmed the district court’s decision regarding Santos’s individual-capacity claims, vacated its decision regarding her municipal and official-capacity claims, and remanded the case to the district court for further proceedings.

In October 2008, while eating a sandwich and waiting for her shift to begin, Santos sat on a curb behind the Common Market food co-op where she worked as a dishwasher. As she ate, a Frederick County patrol car, apparently conducting a routine patrol of the area slowly approached her from her left. She remained seated and continued eating her sandwich. The deputies, Openshaw and Lynch, parked the patrol car and walked toward Santos. Openshaw stopped about six feet from Santos and asked if she spoke English, Lynch stood closer to the patrol car. Santos responded that she did not. Openshaw then asked several noninvasive questions in English, but the two had trouble communicating. He then asked if she had identification, and she responded in Spanish that she did not. Openshaw then stepped away from Santos to speak with Lynch near the patrol car. Soon thereafter, Santos recalled that she had her El Salvadoran national identification card in her purse. She remained seated but handed the card to Openshaw. The deputies then relayed Santos’s identification information to radio dispatch in order to run a warrant check. At some point during the warrant check but before dispatch had determined whether the warrant was active, Santos asked the deputies if there was any problem and Openshaw replied that there was not but gestured for her to remain seated.  Following the warrant check, dispatch informed the deputies that Santos had an outstanding ICE warrant for “immediate deportation.” Upon being informed that the warrant was active, the deputies placed Santos under arrest and transported her to a Maryland detention center. Approximately forty-five minutes after Santos’s arrest, ICE officials requested that the detention center hold Santos on ICE’s behalf. ICE initially held her in two Maryland facilities before transferring her to a jail in Massachusetts, where she stayed until her supervised release in November of 2008. In November 2009, Santos filed a Section 1983 complaint against the Defendants. The district court, concluding that the deputies did not violate Santos Fourth Amendment rights, granted the deputies motion for summary judgment and consequently dismissed the claims against all other Defendants. Santos moved for reconsideration, highlighting a number of federal court decisions after the district court’s summary judgment hearing holding that state and local governments lack inherent authority to enforce civil federal immigration law. The district court however denied Santos’s motion, holding that even if the Supreme Court’s landmark immigration decision in Arizona v. United States along with other federal court decisions suggested an “emerging consensus” that local officers may not enforce civil immigration law, the deputies were still entitled to qualified immunity for their conduct. Santos appealed.

On appeal, after determining that Santos was seized when Openshaw gestured for her to remain seated, the Fourth Circuit addressed the issue of whether the deputies violated her constitutional rights when they detained and subsequently arrested her based on the civil ICE warrant. Before getting to the merits of the case, however, the court found that the question was properly before it on appeal, as Santos had not abandoned any claim that the deputies’ actions constituted the unauthorized enforcement of federal civil immigration law despite an ambiguous statement made by her counsel during oral argument at the summary judgment motion hearing. Addressing the merits, the court first held that the deputies’ violated Santos’s rights under the Fourth Amendment at the time they seized her solely on the basis of the outstanding civil ICE warrant. Next, noting that Arizona v. United States makes clear that local law enforcement officers cannot arrest aliens for civil immigration violations absent direction or authorization by federal officials, the court rejected the Defendant’s contention that the deputies lawfully detained and arrested Santos because ICE officials did not request the deputies to detain Santos until a full forty-five minutes after her arrest. The Defendants next argued that the arrest was lawful because there was no evidence in the record that the ICE warrant was civil rather than criminal. However, after observing that the warrant was for “deportation,” a proceeding long characterized as civil in nature, the court found the record did indeed contain evidence the ICE warrant was civil in nature. Next, the court found that qualified immunity barred Santos’s individual capacity claims against the deputies because there was no controlling precedent, at the time the seizure took place, putting the deputies on notice that their actions violated Santos’s constitutional rights. Lastly, because qualified immunity does not extend to municipal defendants, the court vacated the district court’s dismissal of the claims against the Defendants’ in their official capacities and remanded the question of whether the deputies’ unconstitutional actions were attributable to an official policy or custom of the county or the actions of a final county policymaker.

Full Opinion

-W. Ryan Nichols

United States v. Smith, No. 12-7301

Decided:  July 25, 2013

The Fourth Circuit affirmed the order of the United States District Court of the District of Maryland denying Defendant Terrence Smith’s ineffective assistance of counsel motion finding that under a more lenient “harmless-error standard,” the error contained within the jury instruction in his underlying trial for witness tampering did not “have a substantial and injurious effect or influence in determining the jury’s verdict.”  As such, the Fourth Circuit agreed that the error was harmless and denied the motion.

In January 2005, Smith, a leader of the Bloods gang in the Harwood neighborhood of Baltimore, Maryland, called a meeting of the gang’s membership at his home and instructed them that he wanted to “firebomb” the victim’s house in retaliation for her repeated contacts with the police regarding drug activity in the neighborhood.  The members of the gang subsequently carried out the attack, using gasoline-filled beer bottles.  Smith and other gang members were later indicted and convicted for their roles in the attack.  Among the five counts on which Smith was convicted, three included federal witness tampering.  At the close of the prosecution’s case, Smith filed a motion for acquittal, arguing that the government had not established the federal nexus that was required to convict him under the federal witness tampering statutes because the government had failed to show that the victim contacted federal authorities or was likely to do so, as required by the statute.  The government argued that such drug trafficking, about which the victim had complained to the local authorities, was a federal offense and, thus, the nexus was established.  The district court denied Smith’s motion and allowed the government to reopen its case to present additional evidence on the matter.  The government offered evidence from the local Drug Enforcement Administration (“DEA”) field office that explained its close relationship with local law enforcement offices in the area and that through these associations, the victim’s reporting would have ultimately been provided to federal law enforcement agents through groups established by federal and local law enforcement agencies, identified as joint task forces, to combat trafficking narcotics.  At the close of the evidence, the district court instructed the jury on the intent element for witness tampering, indicating that the government had to prove that Smith “acted knowingly and with the unlawful intent to induce [the victim] to hinder, delay, or prevent the communication of information to a law enforcement officer of the United States.”  The court further instructed that the government needed only to show that there was “a possibility or likelihood” that the information provided by the victim would be communicated to federal law enforcement authorities to satisfy the intent element.  The jury convicted Smith on all counts and Smith appealed arguing that the court misinstructed the jury on the witness tampering counts.

The Fourth Circuit initially rejected Smith’s arguments and affirmed his convictions, but remanded the case to fix a sentencing error, which was later affirmed.  In April 2011, Smith filed a motion under 28 U.S.C. § 2255, raising several issues regarding the effectiveness of his trial counsel.  After his decision to file the § 2255 motion, the U.S. Supreme Court rejected the “possibility” of a federal communication as an appropriate standard for establishing the federal nexus element in Fowler v. United States, 131 S. Ct. 2045 (2011), and held that the government had to prove a “reasonable likelihood” of the communication.  Smith filed a supplement to his § 2255 motion.  The district court deciding the § 2255 motion concluded that even though the standard applied at trial was incorrect it was, nonetheless, harmless error.  Smith again filed a timely notice of appeal.

The Fourth Circuit began its opinion by agreeing with Smith and the district court that Fowler changed the standard upon which the government must prove federal nexus in witness tampering and that it was retroactively applicable to cases on collateral review.  As a result, the district court’s jury instruction at trial was erroneous.  Smith’s first argument was that this instruction error was not reviewable under the harmless error review doctrine because it was ‘a fundamental error in the proceedings,’ and warranted automatic reversal because it was, in essence, a structural error in the trial.  The Fourth Circuit rejected this argument holding that the instructional error “did not taint the trial ‘from beginning to end,’” as is required to show a structural error.  Smith also contended that even under the harmless error analysis, the district court should have applied the standard of review for direct appeals as provided in Chapman v. California, 386 U.S. 18 (1967), rather than the standard for collateral appeals as set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993).  The standard on direct appeal, under Chapman, requires the government to show the error was harmless only if it was “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.”  The standard for collateral appeals, under Brecht, only requires the government to show that error did not have a “substantial and injurious effect or influence in determining the jury’s verdict.”  The court indicated that the Brecht standard has been held to apply in § 2254 habeas petition cases, but the U.S. Supreme Court and the Fourth Circuit had yet to decide whether it applies to § 2255 cases.  Upon an analysis of the Brecht decision and review of other sister circuits, the Fourth Circuit held that because the structural nature of collateral review is the same for both § 2254 and § 2255 cases, society has the same interest in the finality of federal convictions as it does in state convictions, and “the risk of degradation of the write is present in both federal § 2255 cases as in state-habeas § 2254 cases,” the less stringent Brecht standard should apply to § 2255 cases.  After determining the applicable standard of review for Smith’s challenge, the court held, under a Brecht analysis, that the jury instructional error in this case did not have “substantial and injurious effect or influence in determining the jury’s verdict.”

Full Opinion

– John G. Tamasitis

Sansotta v. Town of Nags Head, No. 12-1538

Decided:  July 25, 2013

The Fourth Circuit held that the Town of Nags Head, North Carolina (“the town”) did not violate the due process or equal protection rights of the owners of six beachfront cottages (“the owners”) by deeming the cottages public nuisances and imposing fines on the owners, and that the owners’ takings claim was ripe for review.  The Fourth Circuit therefore affirmed the ruling of the United States District Court for the Eastern District of North Carolina in part, reversed the ruling in part, and remanded the case back to the district court.

On November 12, 2009, a major storm damaged the owners’ cottages.  The town declared the cottages to be public nuisances under its nuisance ordinance on November 30, and informed the owners that, if they did not abate the nuisance within eighteen days, the town would impose civil fines.  The owners did not take the actions required to abate the nuisance, and the town began imposing fines in late January 2010.  The owners did not pay the fines.  In May 2010, the owners sued the town in state court.  The town removed the case to the federal district court; after removal, the owners filed an amended complaint asserting, inter alia, violation of their due process and equal protection rights, as well as a takings claim under the Fifth Amendment.  The district court granted the town summary judgment on the owners’ due process and equal protection claims, and declared the owners’ takings claim unripe for review under the state-litigation requirement of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172.  On appeal to the Fourth Circuit, the owners asserted that the town violated their procedural due process rights by taking their money and depriving them of the use and enjoyment of their property without a pre-deprivation process; that the town violated their equal protection rights by deeming their cottages nuisances, but failing to declare fourteen other cottages in the town’s alleged public trust area as nuisances; and that the district court erroneously dismissed their takings claim.

The Fourth Circuit found that, while the owners asserted two constitutionally protected property interests, the government never actually deprived the owners of these interests:  The owners never paid the fines, and their property rights did not include the ability to use the properties in a manner contrary to law.  With regard to the equal protection claim, the Fourth Circuit concluded that the town had a rational basis for treating the owners’ properties differently than the fourteen other cottages, as the owners’ cottages were closer to the ocean than the other cottages.  Lastly, the Fourth Circuit found the state-litigation requirement inapplicable.  The Fourth Circuit noted that, under this requirement, plaintiffs must seek compensation through state procedures before a takings claim against the state or its subdivisions can be ripe in federal court.  However, plaintiffs may bring a takings claim in state court without a prior denial of compensation by the state, as long as the takings claim accompanies a claim for just compensation under state law.  In this case, the owners filed a takings claim alongside an inverse condemnation claim in state court; thus, allowing the town to invoke the state litigation requirement after removing the case to federal court would deny the owners a forum for their claim, constituting manipulation of the litigation.  Furthermore, while the state-litigation requirement is based on the state courts’ experiential advantage in adjudicating cases involving zoning and land-use issues, the Fourth Circuit noted that federal courts can also handle these cases competently—and that the town implicitly agreed with this conclusion by removing the case to federal court.

Full Opinion

– Stephen Sutherland

United States v. South Carolina, Nos. 12-1096, 12-1099, 12-2514, 12-2533

Decided:  July 23, 2013

The Fourth Circuit held that, under the Supremacy Clause, the Lowcountry Immigration Coalition (“the Coalition”) had an implied right of action allowing them to seek enjoinment of South Carolina’s Act 69 (“the Act”) on the grounds of federal preemption; that the United States District Court for the District of South Carolina properly chose not to abstain from hearing the case; and that the district court properly enjoined certain sections of the Act a in a pre-enforcement challenge.  The Fourth Circuit therefore affirmed the decision of the district court.

The governor of South Carolina signed the Act in 2011, thereby approving certain state immigration laws and regulations.  Subsections 4(A) and (C) provide that unlawfully present immigrants commit a state felony if, inter alia, they allow themselves to be either transported within the state, or to be harbored or concealed to avoid detection, with the intent to further their unlawful entry into the country or to avoid apprehension or detection.  Under subsections 4(B) and 4(D), it is a state felony for a person to conduct the transportation or concealment offenses listed in Subsections 4(A) and (C).  Under Section 5, it is a state misdemeanor for a person over seventeen years old to fail to carry certain alien registration materials issued to the person under 8 U.S.C. § 1304.  Subsection 6(B)(2) forbids the display or possession of counterfeit or false identification “for the purpose of offering proof of the person’s lawful presence in the United States”; a first violation of this subsection is a misdemeanor, and a second violation is a felony.

The United States and the Lowcountry Immigration Coalition (“the Coalition”) challenged certain sections of the Act in two separate actions.  The district court consolidated the cases, and found that Sections 4, 5, 6(B)(2), and other subsections of Section 6 were preempted by federal law.  The district court issued a preliminary injunction, and South Carolina appealed.  The Fourth Circuit remanded the case to the district court for reconsideration due to the Supreme Court’s decision in Arizona v. United States, 132 S. Ct. 2492.  On remand, the district court let its injunction of Sections 4, 5, and 6(B)(2) stand, and dissolved its injunction of the other subsections of Section 6.  On an interlocutory appeal to the Fourth Circuit, South Carolina argued that the Coalition did not have a right of action under the Supremacy Clause or 42 U.S.C. § 1983, citing Chief Justice Roberts’s dissent in Douglas v. Independent Living Center of Southern California, Inc., 132 S. Ct. 1204, as support for its Supremacy Clause argument; asserted that the district court should have abstained from hearing the case under Younger v. Harris, 401 U.S. 37; and challenged the district court’s preliminary injunction.

The Fourth Circuit found that the Douglas dissent did not disturb prior Supreme Court and circuit court holdings allowing parties to seek injunctive relief on the grounds of federal preemption.  The Fourth Circuit also found Younger abstention inapplicable, as South Carolina had not actually commenced criminal proceedings under the Act.  Lastly, the Fourth Circuit concluded that federal law preempted all of the disputed sections of the Act.  The Fourth Circuit found that Subsections 4(A) and (C) criminalized mere unlawful presence, in contradiction of federal laws defining unlawful presence as a civil offense; that Subsections 4(B) and (D) infringed on a field occupied by the Immigration and Naturalization Act, which defines, inter alia, certain harboring and transportation offenses; that Section 5 infringed on the federal government’s regulation of alien registration; and that Subsection 6(B)(2) was preempted by both field preemption and conflict preemption, as Congress passed multiple laws regarding fraudulent immigration documents, and enforcement of these federal statutes would conflict with enforcement of Subsection 6(B)(2).

Full Opinion

– Stephen Sutherland

Cioca v. Rumsfeld, No. 12-1065

Decided: July 23, 2013

The Fourth Circuit affirmed the District Court for the Eastern District of Virginia’s Order dismissing Plaintiffs’ complaint for failure to state a claim because the alleged injuries arose out of or in the course of activity incident to military service.

Alleging they were victims of rape and sexual misconduct by fellow servicemembers during their military careers, twenty-eight current and former members of the U.S. Armed Forces (“Plaintiffs”) brought suit against two former Secretaries of Defense, Donald Rumsfeld and Robert Gates (“Defendants”), seeking money damages pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The complaint alleged that the acts and omissions of Defendants, in their official capacities, contributed to a military culture of tolerance for the sexual crimes perpetrated against them. Based on factual assertions set forth in the complaint, Plaintiffs alleged that the Defendants violated their Fifth Amendment rights to due process and equal protection, their First Amendment rights to free speech, and their Seventh Amendment rights to trial by jury. After a hearing on Defendant’s Rule 12(b)(6) motion, the District Court issued an order dismissing the complaint. In its order, the District Court noted that a Bivens-type remedy was not appropriate in this situation given the unique disciplinary structure of the military establishment and further observed that the Supreme Court has counseled against the exercise of judicial authority in the military context. This appeal followed.

Before beginning its analysis, the Fourth Circuit first provided a backdrop of Bivens actions and the constitutional basis upon which such actions rely. In conclusion, the court noted that Bivens suits are never permitted for constitutional violations arising from military service, no matter how severe the injury or how egregious the rights infringement. Next, applying the “incident to service” rule, the court explained that the Plaintiffs’ alleged injuries clearly arose out of or in the course of activity incident to service. Consequently, the court affirmed the district court, holding that the Plaintiffs were not entitled to a Bivens-type remedy. In so holding, the court relied heavily on Supreme Court precedent which, at its core, draws on the Separation of Powers doctrine and seeks to refrain from allowing the civilian court system to second-guess military decisions.

Full Opinion

– W. Ryan Nichols

Moore v. Hardee, No. 12-6678

Decided: July 22, 2013

The Fourth Circuit reversed the district court’s judgment granting Defendant’s petition on his claim of ineffective assistance based on his counsel’s failure to call an expert in eyewitness identification, and affirmed the portion of the district court’s judgment rejecting Defendant’s other claims of ineffective assistance.

On April 23, 2007, a North Carolina jury convicted Thomas Moore, Jr. (“Defendant”) of first-degree burglary and assault with a deadly weapon with intent to kill inflicting serious injury. Richard and Helen Overton identified Moore as the assailant before the jury. However, the Overtons had also falsely accused Moore and his brother of armed robbery back in 2003. The Overtons saw and testified against the brothers in the earlier case, but those charges were dismissed. In 2007, Helen Overton confirmed that she had identified Moore from the photographic lineup based on his involvement in the 2006 incident, not because she had seen Moore in court during the 2004 proceedings. The state also presented into evidence a revolver recovered several miles from the Ovetons’ home, which was connected neither to Moore nor to the incident at the Overtons’ home. Further, Richard Overton’s testimony identifying both “Moore boys,” rather than just Defendant, was significantly impeached by evidence that Linwood Moore was incarcerated on the night of the assault and could not have been present. The jury nonetheless convicted Defendant of both charges.

After Moore exhausted his direct appeals and state post-conviction remedies, he petitioned the district court for a federal writ of habeas corpus under 28 U.S.C. § 2254. The district court granted the writ. The State of North Carolina then sought reversal of the district court’s order granting Moore’s writ. Moore cross-appealed from the district court’s denial of one of the additional claims of ineffective assistance he asserted below, that his trial counsel was ineffective for stipulating to irrelevant and prejudicial evidence.

The Fourth Circuit first addressed the district court’s conclusion that, under § 2254 (d)(1), the MAR court unreasonably applied the Supreme Court’s precedent in Strickland. The court reviewed the claim through the strictures of the Antiterrorism and Effective Death Penalty Act of 1996 (“the AEDPA”). Under AEDPA, a writ of habeas corpus “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law…or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” The Court also reviewed the claim through the lens of Strickland and its progeny. Stricklandsets forth a two part standard: First, the petitioner must show that “counsel’s representation fell below an objective standard of reasonableness. Second, the petitioner must also show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In two recent Supreme Court Cases, the Court emphasized that when state prisoners present ineffective assistance of counsel claims under the AEDPA, the “pivotal question is whether the state court’s application of the Strickland standard was unreasonable.” Under the AEDPA standard, “a state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fair-minded jurists could disagree on the correctness of the state court’s decision.” In other words, a writ may issue only “where there is no possibility fair-minded jurists could disagree that the state court’s decision conflicts with the Court’s precedents.” The court concluded that there was at least a reasonable argument that Moore’s counsel satisfied Strickland’s deferential standard, and therefore reversed the district court’s order granting Moore the writ. The court noted that expert testimony on eyewitness identifications is not automatically admitted and, when allowed, its admissibility is generally at the court’s discretion, both under federal and North Carolina law. The court declined to hold that by failing to call a witness whose testimony the state trial court had full discretion to exclude, Moore’s counsel rendered constitutionally deficient performance.

The Court of Appeals then addressed the district court’s holding that the MAR court “reached its decision based upon an unreasonable determination of the facts,” in light of the evidence presented in the state court proceeding, in violation of § 2254 (d)(2). A determination on a factual issue made by a State court shall be presumed correct and the burden is on the petitioner to rebut this presumption by clear and convincing evidence. Here, the state found there was no evidence to justify or require an expert on identification. The state court considered Moore’s submission and reached a conclusion with which “fair-minded jurists could disagree.” Therefore, the Fourth Circuit Court of Appeals found that Moore failed to meet his burden under § 2254 (d)(2).

The Court of Appeals then addressed Moore’s cross-appeal, in which he contested the district court’s rejection of his ineffective assistance of counsel claim based on his trial counsel’s failure to object to the admission of the firearm and forensic report. In addressing this issue, the court asked whether, had Moore’s counsel objected to the evidence in question, “fair-minded jurists could disagree” as to whether that objection would have created a reasonable probability of affecting the outcome of Moore’s trial. The court declined to find plain error because it could not conclude that “absent the error the jury probably would have reached a different verdict.” Counsel successfully demonstrated through cross-examination that the admitted firearm and forensic report were connected neither to Moore nor to the crime against the Overtons. As “reasonable jurists” could disagree as to whether the admission of the evidence ultimately prejudiced Moore, the court affirmed the district’ court’s denial of the writ on that ground.

Full Opinion

– Sarah Bishop

United States v. Lanning, No. 12-4547

Decided:  July 19, 2013

The Fourth Circuit reversed Defendant Joe Lanning’s (“Defendant”) conviction and remanded for a judgment of acquittal as a result of his involvement in a sting operation targeting gay men.  The Defendant was convicted for disorderly conduct under 36 C.F.R. § 2.34, which prohibits conduct considered “obscene,” “physically threatening or menacing,” or “likely to inflict injury or incite an immediate breach of the peace.”  The court held that the term “obscene” was unconstitutionally vague and determined that no rational finder of fact could find beyond a reasonable doubt that Defendant’s conduct was “physically threatening or menacing” or “likely to inflict injury or incite an immediate breach of the peace.”

The National Park Service and the U.S. Forest Service set up a joint operation that was designed to enable officers to identify and arrest men who were involved in sexual solicitation and activity with other men in the Sleep Gap Overlook area of the Blue Ridge Parkway in Buncombe County, North Carolina.  In November 2009, a thirty-three year old, two hundred pound park ranger participated in the operation as an undercover operation.  During the course of his duties, he came upon Defendant, a sixty-two year old retiree, on a nearby trail.  When the undercover officer walked past, Defendant grabbed his groin and continued walking.  A few moments later, after walking around the area, the undercover officer went looking for Defendant and found him standing by himself.  The undercover officer engaged Defendant in conversation for a few minutes then commented, “Asheville was ‘an open community,’ accepting of a homosexual lifestyle.”  Defendant then indicated he wanted to engage in sexual relations with the undercover officer.  The undercover officer indicated that he was wiling to participate.  Defendant then turned around and backed up to the undercover officer and “touched [the officer’s] fully-clothed crotch.”  The undercover officer characterized the touch as ‘a fairly firm grasp’ that lasted until the officer stated:  ‘Police officer, you’re under arrest.’  Defendant was subsequently charged with disorderly conduct in violation of 36 C.F.R. § 2.34(a)(2).  Defendant unsuccessfully moved to dismiss the case and the magistrate judge found him guilty of disorderly conduct, providing no specific reasons for the decision and was sentenced to 15 days’ imprisonment, a $1,000 fine, and a two-year ban on visiting government forests and parks.  Defendant appealed to the district court, which affirmed the conviction concluding that there was enough evidence that indicated Defendant’s “conduct was obscene and physically threatening and/or menacing.”  However, the district court vacated and remanded his sentence because the magistrate judge did not have the authority to ban Defendant from government parks.  The magistrate judge subsequently dropped the ban and reduced the fine to $500 upon which the district court affirmed.  Defendant appealed to the Fourth Circuit.

On appeal, the Fourth Circuit found that the “obscene” standard encapsulated in the regulation was unconstitutionally vague based on a common understanding of the word’s definition.  The court held that the Section 2.349a)(2) did not provide Defendant, nor would it provide any other person of ordinary intelligence, with “notice” that such conduct was obscene.  Moreover, the court held that the facts of the case illustrated “the real risk that the provision may be ‘arbitrarily and discriminatorily enforced.”  The court highlighted the fact that the sting operation “was aimed not generally at sexual activity in the Blue Ridge Parkway; rather, it specifically targeted gay men” and presented a “real threat of anti-gay discrimination.”  The court cautioned that its decision was limited to Defendant’s conduct at issue and did not mean that the statute was impermissibly vague per se.  The court also held that the regulation’s second element, whether Defendant’s conduct was “physically threatening or menacing” was not satisfied.  The court held that “no rational fact finder could conclude that a reasonable person would feel physically threatened or menaced by Defendant’s conduct,” under the facts presented.  Because neither prong could serve as a basis for Defendant’s conviction, the court turned to the final prong of the regulations second element:  “conduct ‘done in a manner that is likely to inflict injury or incite an immediate breach of peace.’”  Again, the court agreed with Defendant that the government had failed to provide enough evidence to support his conviction for disorderly conduct because no rational finder of fact would conclude that the undercover officer likely would have reacted violently to Defendant’s “fleeting touch.”

Full Opinion

– John G. Tamasitis

United States v. Sterling, No. 11-5028

Decided:  July 19, 2013

The Fourth Circuit held that the United States District Court for the Eastern District of Virginia (“the district court”) improperly granted a qualified reporter’s privilege to James Risen (“Risen”) under the First Amendment, thereby preventing the government from uncovering the identify of a source who allegedly leaked national security information in violation of the Espionage Act, 18 U.S.C. § 793(d)–(e); that the district court improperly struck two government witnesses to sanction the government’s violation of a discovery order; and that the district court properly ordered disclosure of the names of certain government witnesses—specifically, current or former operatives for the Central Intelligence Agency (“CIA”)—to defendant Jeffrey Alexander Sterling (“Sterling”) and his attorney, but improperly ordered disclosure of these names to the jurors.  The Fourth Circuit therefore affirmed the decision of the district court in part, reversed the decision in part, and remanded the case.

In 1993, the CIA hired Sterling as a case officer and granted him top-secret security clearance.  In 1998, the CIA assigned Sterling to a classified program designed to encumber Iran’s acquisition or development of nuclear weapons (“the CIA program”).  Sterling was reassigned from the CIA program in May 2000.  In August 2000, Sterling filed an equal opportunity complaint, alleging the CIA denied him assignments on the basis of race.  He later filed a federal lawsuit against the CIA, seeking compensation for racial discrimination.  Sterling was removed from service in October 2001, and terminated from the CIA in January 2002; his federal lawsuit was subsequently dismissed.  Sterling also filed a second civil suit against the CIA in March 2003, claiming that the CIA had infringed upon his right to publish his memoirs after the CIA’s Publications Review Board edited portions of the memoirs.  The suit was later dismissed by stipulation of the parties.  In 2006, Risen published a book titled State of War:  The Secret History of the CIA and the Bush Administration, which contained classified details about the CIA program.  Risen did not reveal his sources for the classified details.  In December 2010, Sterling was indicted by a federal grand jury for, inter alia, violations of the Espionage Act—specifically, the unauthorized retention and disclosure of national security information.  The grand jury made a probable cause determination that Sterling illegally disclosed classified information to Risen, and that he may have done so to retaliate against the CIA for terminating him and interfering with his memoirs.

In May 2011, the government obtained authorization to issue a trial subpoena seeking, inter alia, testimony from Risen regarding his source of information on the CIA program.  The government asked the court to admit the testimony through a motion in limine.  Claiming the First Amendment or, in the alternative, a federal common-law reporter’s privilege protected him from compelled testimony, Risen moved to quash the subpoena.  The district court quashed the subpoena and denied the government’s motion in limine.  The district court found that Risen had a qualified reporter’s privilege under the First Amendment, and the government did not meet the three-part test established in LaRouche v. National Broadcasting Co., 780 F.2d 1134, thereby failing to overcome the privilege.

The parties consented to a discovery order prior to trial, in which the government agreed to a schedule for disclosing evidence tending to impeach a prosecution witness, per Giglio v. United States, 405 U.S. 150.  Under this schedule, the government had to provide all Giglio materials to Sterling no later than five days prior to the trial’s commencement.  As the disclosure deadline approached, the government discovered impeachment materials in the personnel files of certain CIA witnesses; the government did not disclose these materials to Sterling until the day after the discovery period’s expiration.  Sterling objected to the late disclosure at a pre-trial hearing, and the district court sanctioned the government by striking two of its witnesses.

The government also moved for a protective order prior to trial, under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 § 6.  Seeking to protect the identities of certain witnesses—specifically, current or former CIA operatives—the government asked the court to, inter alia, allow the witnesses to use their last initials instead of their full names.  At a pre-trial hearing, the court agreed to allow the witnesses to use pseudonyms while testifying, but ordered the government to provide a key with the witnesses’ actual names (“the witness key”) to Sterling, his counsel, and the jury.

On appeal, the Fourth Circuit found that the First Amendment reporter’s privilege claimed by Risen—involving testimony in a criminal proceeding regarding criminal conduct the reporter personally observed or participated in—had been rejected by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665.  Furthermore, the Fourth Circuit found that the subpoena was not issued in bad faith or for purposes of harassment.  The court also rejected Risen’s claim to a common-law reporter’s privilege, noting that the Branzburg Court failed to recognize such a privilege, and finding that the Supreme Court’s interpretation of Federal Rule of Evidence 501 in Jaffee v. Redmond, 518 U.S. 1—which established a psychotherapist-patient privilege—did not overrule Branzburg or allow federal courts to recognize a reporter’s privilege under the common law.  With regard to the sanction for the government’s late Giglio disclosure, the Fourth Circuit found that the Giglio violation was not made in bad faith; that Sterling’s trial preparations were not irreparably damaged by the late disclosure; and that a less severe sanction—specifically, a continuance—would have remedied any prejudice from the brief delay.  Lastly, with regard to the district court’s CIPA ruling, the Fourth Circuit noted that Sterling already knew or may know some of the witnesses, and asserted that depriving Sterling of the witness key could infringe upon his Confrontation Clause rights; furthermore, the court noted that the government made no showing that Sterling or his counsel posed an actual threat to the witnesses’ safety.  However, the Fourth Circuit also noted that the jurors could remember the names on the witness key; that the actual names of the witnesses would not help the jury understand the facts and legal issues of the case, and that disclosure of the witness key to jurors was therefore not worth the risk; and that a proper jury instruction could alleviate any prejudice to Sterling.

Full Opinion

-Stephen Sutherland

National Labor Relations Board v. Enterprise Leasing Company, LLC, No. 12-1514, 12-2000

Decided: July 17, 2013

The Fourth Circuit denied the National Labor Relations Board’s (the “NLRB”) application for enforcement of two bargaining orders because it found that the Obama Administration’s recess appointments to the NLRB violated the Constitution and, as such, the NLRB’s orders were invalid.

The Fourth Circuit consolidated two cases that involved labor disputes with Enterprise Leasing Company, LLC and Huntington Ingalls, Inc. (the “Companies”).  In both cases, the NLRB rejected the Companies’ substantive arguments regarding bargaining agreements with their respective labor unions and ordered both to comply with two bargaining orders issued.  The Companies challenged enforcement of the order first on substantive grounds and, in the alternative, arguing that the NLRB did not have a quorum to decide the issue.  The basis of their quorum challenge was that the Obama Administration, in appointing three of the current NLRB members on January 4, 2012, violated the Constitution’s Recess Appointments Clause, which provides that the President “shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”   The Companies argued that the Administration’s decision to appoint three NLRB members during an “intrasession” recess violated the Recess Appointment Clause.  According to the court, Senate recesses can be classified into two categories: “intersession recesses–or, recesses that occur between two sessions of Congress–and intrasession recesses–or recesses that occur within one particular session of Congress.”  The NLRB filed an application for enforcement of its orders to the Fourth Circuit.

The Fourth Circuit first addressed the case on statutory grounds.  The court held that, under the applicable substantive laws, the NLRB’s orders were valid.  The court then turned to the Companies’ constitutional challenge – whether the President’s three recess appointments on January 4, 2012 were valid under the Recess Appointment Clause.  The court first pointed out that the Recess Appointment Clause has two important functions.  The first is to ensure that the government remains in operation during the times when the Senate would be unable to advise and consent to a nomination.  The second, and more important, function was to prevent the President from exercising his appointment power unilaterally, thereby preserving the separation of powers between the Executive and Legislative branches.  The court noted that there is a current split of opinion between the circuits regarding what the term “the Recess” means under the Clause.  Indeed, the Companies argued that the more narrow definition, adopted by the D.C. and Third Circuits, of “the Recess” limits the President’s recess appointment power to only intersession recesses.  On the opposite side, the NLRB argued that the Eleventh Circuit’s definition of a broader reading of the term to allow for intrasession recess appointments.  The court then discussed, at length, the different cases giving rise to the difference of opinions among the circuits and rationale for both arguments.  After an extensive examination of the text of the Recess Appointment Clause and a recognition of the historical understanding of the clause up until the 1920s, the Fourth Circuit agreed with both the D.C. Circuit and Third Circuit that the Recess Appointment Clause only applies to “intersession” recesses of the Senate and rejected the interpretation of the clause as allowing for intrasession appointments under the “unavailable for business” definition proposed by the NLRB and supported by the Eleventh Circuit.  As a result, the President’s January 4, 2012 appointments violated the Constitution and the bargaining orders were invalid because the NLRB did not have a quorum to decide the issues.

Full Opinion

– John G. Tamasitis

Liberty University, Inc. v. Lew, No. 10-2347

Decided: July 11, 2013

Upon remand from the U.S. Supreme Court, the Fourth Circuit affirmed the judgment of the district court to dismiss Liberty University and certain individuals’ (the “Plaintiffs”) action challenging the constitutionality of the employer and individual mandates of the Patient Protection and Affordable Care Act (the “Act” or the “ACA”) on religious freedom grounds.  Notably, and maybe more importantly, the Fourth Circuit also held that the Anti-Injunction Act (the “AIA”) does not bar a pre-enforcement challenge to the employer mandate and rejected the federal government’s arguments that the Plaintiffs did not have standing to challenge the mandates and, in the alternative, that the Fourth Circuit should delay its decision because the enforcement of the employer mandate has been delayed until 2015.

In a second amended complaint, the individual plaintiffs challenged the individual mandate asserting, inter alia, that they held certain Christian religious beliefs regarding abortion that should not force them to participate in the mandate because doing so would require them to facilitate, fund, and support abortions.  Liberty University also challenged the employer mandate asserting that if the federal government’s definition of “minimum essential coverage” finds the University to offer coverage insufficient under the law it would be subject to significant penalties in violation of various constitutional provisions restricting Congress’s authority.  Also, like the individual plaintiffs, Liberty University argued that, as a Christian educational institution with certain held religious beliefs that abortion constitutes “murder and [is] morally repugnant,” it should not be forced to facilitate, fund, or support abortions under the employer mandate because doing so would violate its constitutional rights.  The Plaintiffs, collectively, asserted that the mandates exceed Congress’s authority under the Commerce Clause and violated the Tenth Amendment, the Establishment and Free Exercise Clause of the First Amendment, the Religious Freedom of Restoration Act (the “RFRA”), the Fifth Amendment, the right to free speech and free association under the First Amendment, the Article I, Section 9 prohibition against unapportioned capitation or direct taxes, and the Guarantee Clause.  The Secretary of the Treasury moved to dismiss the claims for lack of jurisdiction, arguing that the Plaintiffs lacked standing and that the AIA barred the suit.  In the alternative, the Secretary moved to dismiss the complaint for failure to state a claim upon which relief could be granted.  When the Fourth Circuit first took the case up on appeal it refused to reach the merits of the case because it concluded that the AIA deprived the court of jurisdiction.  The U.S. Supreme Court vacated that judgment after its decision in NFIB v. Sebelius and directed the court to give further consideration to the case in light of that decision.

The Fourth Circuit first addressed whether the AIA barred this pre-enforcement suit to the employer mandate and whether the Plaintiffs had standing to challenge the constitutionality of the mandates.  With regards to the AIA, the Fourth Circuit noted the Supreme Court, in NFIB, “made clear that the AIA does not apply to every exaction that functions as a tax or even to every exaction that passes muster as a tax for constitutional purposes.”  Instead, the AIA applies only in situations where Congress intended for it to apply.  Similar to the Supreme Court’s reasoning in NFIB, the Fourth Circuit noted that the language of the employer mandate does not consistently refer to the mandate exaction as a “tax.”  Actually, the court identified that the ACA refers to the exaction as a “tax” only twice, yet refers to the exaction as an “assessable payment” seven other times.  The court also indicated that when the ACA does refer to the exaction as a “tax” it is inconsistent in how it cross-references that language with the Internal Revenue Code (“IRC”).  In addition to the textual inconsistencies with the Secretary’s argument, the court noted that adopting such a position would lead to an “anomalous result” as compared with the Supreme Court’s decision in NFIB to allow pre-enforcement challenges to the individual mandate provision.  As such, the Fourth Circuit held that the AIA does not bar this type of pre-enforcement action against the employer mandate.  The court next addressed the second jurisdiction issue raised by the Secretary – standing.  The court went through the obligatory explanation of the standing doctrine and focused its analysis on the Secretary’s contention that the Plaintiffs lacked standing because they failed to allege any actual or imminent injury.  For Liberty University, the Fourth Circuit held that because the university “could” be subject to an assessable payment under the employer mandate and that payment could result in negative effects on the university by increasing the cost of providing health insurance coverage, it established the requisite plausible “general factual allegations of injury” to satisfy the standing doctrine.  Moreover, the court held that such injury was imminent even though the mandate would not go into effect until 2015 because Liberty University would have to take measure to ensure compliance in advance of that date.  With respect to the individual plaintiffs, the court also held that they satisfied the requirement of establishing “general factual allegations of injury” to satisfy the doctrine and, thus, had standing to challenge the individual mandate’s enforcement.  As a result, the Fourth Circuit agreed with the Plaintiffs that they had standing to challenge the ACA and rejected the Secretary’s standing arguments and its contention that the court should delay any decision with regards to the employer mandate even though it had been delayed for a year until 2015.

The Fourth Circuit then turned to the Plaintiffs’ constitutional challenges to the mandates.   First, the court addressed Liberty University’s argument that the employer mandate exceeds Congress’s authority under Commerce Clause of the Constitution.  Even though the Supreme Court in NFIB called into question the previously identified “expansive” authority of Congress under the Commerce Clause, it did not disturb the historical understanding of Congress’s ability to regulate activity with “substantial effects on interstate commerce.”  The court noted that, by their very nature, employers are engaged in economic activity and its decision to provide health insurance to its employees is no different.  Because employers are “active in commerce” already, the Fourth Circuit held that “Congress had a rational basis for finding that employers’ provision of health insurance coverage substantially affects interstate commerce,” and, thus, the ACA’s employer mandate is a valid exercise of Congress’s authority under the Commerce Clause.

The court next quickly addressed the Plaintiffs’ argument that the employer mandate is outside Congress’s authority under the Taxing and Spending or General Welfare Clause.  The Fourth Circuit relied heavily on the Supreme Court’s rationale in NFIB upholding the individual mandate as a tax in asserting that the “essential feature” or, in the alternative, “other functional characteristics” of the employer mandate penalty establish the penalty as a tax and, as such, falls within Congress’s authority under the Taxing and Spending Clause of the Constitution.

Lastly, the Fourth Circuit addressed the Plaintiffs’ challenge to the ACA on various religious grounds.  First, with respect to the Plaintiffs’ Free Exercise Clause argument, the court held that the ACA is a “neutral law of general applicability.”  As a result, it does not violate the Clause and the court rejected the Plaintiffs’ arguments.  The court also rejected the Plaintiffs’ RFRA claims under the theory that the ACA does not “substantially burden religious practice,” as is the requirement under the RFRA in order for the court to apply strict scrutiny to the legislation.  The court then took up the Plaintiffs allegation that two religious exemptions contained within the Act violate the Establishment Clause and their Fifth Amendment equal protection rights.  The first exemption at issue was the individual mandate’s religious conscience exemption.  The court held that this exemption passed the Lemon test because it had a secular purpose and did not “advance nor inhibit” religion.  The second individual mandate exemption challenged by the Plaintiffs dealt with the health care sharing ministry exemption.  The Plaintiffs argued that the exemption unconstitutionally selected an arbitrary formation date as the eligibility cutoff.  Again, the court rejected the argument under the Lemon test.  Finally, the court addressed the Plaintiffs’ Fifth Amendment equal protection rights argument.  Because the distinctions between different groups was “rationally related to the Government’s legitimate interest in accommodating religious practice while limited interference in the Act’s overriding purposes,” the Plaintiffs failed to state a plausible claim that the Fifth Amendment provided a basis for relief.

In addition, the Fourth Circuit quickly addressed the Plaintiffs’ claims in their post-remand briefs that certain regulations implementing the Act that required group health plans to cover all FDA-approved contraceptive methods violated their religious rights.  Because these regulations were not addressed in the Plaintiffs’ amended complaints, nor were they challenged in district court, their first appeal to the Fourth Circuit, or their Supreme Court briefs, the Fourth Circuit declined to take up the issue.  The court noted that these regulations were promulgated while this case was pending and several other sister circuits are currently considering such cases that had been filed after the regulations were promulgated.  As a result, the court did not believe the Plaintiffs’ reasoning for addressing these issues some three years after the action had commenced warranted consideration by the Fourth Circuit at this time.

Full Opinion

– John G. Tamasitis

Sons of Confederate Veterans, Virginia Division v. City of Lexington, No. 12-1832

Decided: July 5, 2013

The Fourth Circuit affirmed the district court’s determination that the City of Lexington’s decision to restrict the presentation of flags on city property was not unconstitutional nor was it a violation of a prior consent decree between the City of Lexington (the “City”) and the Sons of Confederate Veterans (the “SCV”) regarding the display of Confederate flags.

In 2010, SCV began planning a parade in honor of Robert E. Lee and Stonewall Jackson. Two months before the scheduled parade, the SCV sought permission from the Lexington City Council to display the Confederate flag on city light poles along the street during the parade. The City Council granted the request. After the parade took place in January 2011, the City Council received negative feedback about the display of the Confederate flag, leading the City Council to adopt an ordinance that only allowed the American Flag, the Virginia Flag, or the town flag to be flown on City light poles. After adopting the ordinance, the SCV sued the City for first amendment violations and for violations of a consent decree which the City and SCV entered into in 1993 whereby the City agreed not to abridge the rights of the SCV or its members to “wear, carry, display or show…the Confederate flag or other banners, emblems, icons or visual depictions to bring into public notice any logo of ‘stars and bars’ that ever was used as a national or battle flag of the Confederacy.” The district court determined that the light poles as “designated public forums” and dismissed the SCV’s claims. SCV appealed.

On appeal, the SCV first argued that the district court erred in determining that, the City’s motivation for closing the designated public forum was immaterial. The court disagreed, finding that, because the ordinance was facially neutral, the City’s motivation was not relevant. The court began by identifying the nature of the form at issue. The court explained that public forums, like sidewalks, receive the greatest first amendment protection while nonpublic forums, such as polling places, are not entitled to as much protection. The Fourth Circuit determined that the light poles at issue in this case fell into a third category called “designated public forums” that is a “nonpublic government site that has been made public and ‘generally accessible to all speakers.’” As a designated public forum, the City was free to close the forum at any time, regardless of motivation. Furthermore, the city did not prohibit individuals from displaying Confederate flags on private property or from carrying flags in public. The court also dismissed the SCV’s argument that the ordinance violated the 1993 consent decree. The court held that because there was no constitutional violation in passing the ordinance, there could similarly be no violation of the consent decree. The decree merely stipulated that the City would not deny the SCV the right to display the Confederate flag at any “place or event which is to any extent given over to private expressive activity.” By constitutionally closing the designated public forum, the City abolished “private expressive activity” from its flag standards. Furthermore, the court rejected the argument that the City could not close its flag standard since they were previously given over to private expressive activity.

Full Opinion

– Wesley B. Lambert

Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, Nos. 11-1111, 11-1185 (en banc)

Decided: July 3, 2013

A majority of the Fourth Circuit, sitting en banc, vacated the judgment of the district court, which granted summary judgment to Plaintiffs Greater Baltimore Center for Pregnancy Concerns, Inc., St. Bridgid’s Roman Catholic Congregation and its Archbishop and permanently enjoined the enforcement of a City of Baltimore Ordinance.   The Ordinance at issued required limited-service pregnancy centers to post disclaimers that the center does not provide or make referrals for abortions or certain birth-control services.  The Plaintiffs argued that the Ordinance was facially invalid under the Free Speech Clause of the First Amendment.  The decision, according to the majority, was based on what it deemed was a summary judgment decision “laden with error, in that the court denied the defendants essential discovery and otherwise disregarded basic rules of civil procedure.”  In addition, the majority affirmed the district court’s ruling that the St. Bridgid’s Roman Catholic Congregation, Inc. lacked standing to be co-plaintiffs with the Greater Baltimore Center for Pregnancy Concerns.

The Ordinance at issue was passed by the City of Baltimore City Council (“the City”) in November 2009 and required pregnancy centers that did not offer abortions or birth control to display signs that indicated as such and post them in a conspicuous place in the center’s waiting room or other waiting area. The City offered a rationale that such centers had provided misleading information and the City had a vested interest in protecting the public health by ensuring honest advertising of services and that the limited-service pregnancy centers pose a threat to the public health.  The Ordinance vests enforcement power with the City Health Commissioner who can issue violation notices and if the center fails to comply with the notice, the Commissioner can issue a civil citation.  The Commissioner is also given the authority to pursue criminal or civil remedies against the violating center.  The constitutionality of the Ordinance was challenged by the Greater Baltimore Center for Pregnancy Concerns (the “Center”), which qualifies under the Ordinance as a limited-service pregnancy center, and the St. Bridgid’s Roman Catholic Congregation and its Archbishop.  The plaintiffs shared religious beliefs that caused them to oppose abortion and certain forms of birth control and their Complaint alleged that the Ordinance violated their First Amendment rights of free speech, free assembly, and the free exercise of religion, plus the Fourteenth Amendment’s guarantee of equal protection and Maryland’s statutory “conscience clause.”

According to the majority, before the City had answered the Complaint, while still having four days left to do so, the plaintiffs filed a motion for partial summary judgment under FRCP 56.  The plaintiffs asserted that the strict scrutiny standard applies and cannot be satisfied because the Ordinance fosters “viewpoint discrimination” against “pro-life pregnancy centers” and compels those centers to engage in government-mandated speech.  A few days later, the City filed a motion to dismiss the Complaint pursuant to FRCP 12(b)(6) or, in the alternative, to dismiss the claims of St. Brigid’s and the Archbishop for lack of standing.   After the district court issued a Scheduling Order, the plaintiffs filed a response to the City’s motion to dismiss and the City submitted a reply concerning its dismissal motion, combined with a response of plaintiffs’ motion for summary judgment.  The City asserted in its response to plaintiffs’ motion for summary judgment that the summary judgment request was premature and that it needed more time to engage in further discovery to fully develop its claims and rebut the plaintiffs’ assertions.

At a motions hearing, the plaintiffs argued that there challenge to the Ordinance was a “facial challenge” and, as such, no further discovery was needed.  The district court agreed that further discovery was unnecessary for a facial review of the Ordinance, though it allowed the City to enter the Ordinance’s entire legislative record into evidence.  The district court promised the City that discovery would be authorized before the court engaged in any “as-applied” analysis of the Ordinance.  After review of the record, the court issued its summary judgment decision and permanent injunction without allowing the City any further discovery.  In its decision, the district court determined that because the City had submitted materials beyond the plaintiffs’ Complaint – i.e., the legislative record – it was correct to treat the City’s motion to dismiss as a cross motion for summary judgment and it rejected the City’s arguments that rational basis scrutiny should apply because the Ordinance was directed at misleading commercial speech.  In applying the strict scrutiny standard, the district court had no issue striking down the Ordinance as unconstitutional on First Amendment grounds.  Notably, the district court also ruled early in its decision that St. Brigid’s and the Archbishop lacked standing to be co-plaintiffs in the case because they could not make the required showing of “the existence of concrete and particularized injury in fact.”

First, the Fourth Circuit summarily agreed with the district court that St. Bridgid’s and the Archbishop lacked standing to be co-plaintiffs.  Next, and more importantly, a majority of the Fourth Circuit vacated the district court’s decision on largely procedural grounds.  The court pointed to several procedural mistakes made by the district court as the court, in the words of the majority, “rushed to summary judgment.”  The court found serious errors with the district court’s denial to the City of necessary discovery, its refusal to view in the City’s favor the evidence presented, and its “verboten factual findings, many premised on nothing more than its own supposition.”  The majority of its decision was focused on the district court’s refusal to afford adequate discovery to the City and rejected the district court’s theory that because it was ruling on a facial challenge to the Ordinance, then greater discovery was not warranted.  The majority also held that the district court “flouted the well-known and time-tested summary judgment standard” when it did not afford all justifiable inferences in the City’s favor, especially with respect to the City’s commercial speech and rational basis theory and that the court engaged in findings based on its own assumptions about the facts.  As a result, the Fourth Circuit vacated the district court’s grant of summary judgment and the permanent injunction against enforcement of the Ordinance and remanded the case back to the district court for further proceedings in line with the Federal Rules of Civil Procedure.

Full Opinion

– John G. Tamasitis

Tepeyak v. Montgomery County, No. 11-1336

Decided: July 3, 2013

The Court of Appeals recently affirmed the district court’s decision to preliminarily enjoin enforcement of the second statement of a Montgomery County Resolution requiring limited service pregnancy resource centers to post signs disclosing a lack of licensed medical professionals on staff and encouraging patients to consult with licensed heath care providers.  Reviewing the decision for an abuse of discretion, the Court found that the district court in no way erred, for it applied the correct preliminary injunction standard, made no clearly erroneous findings of material fact, and demonstrated a firm grasp of the legal principles pertinent to the matter.

In early 2010, the Montgomery County Council passed a resolution requiring the postage of a sign in limited pregnancy resource centers, such as Centro Tepeyak, that read: (1) “the Center does not have a licensed medical professional on staff,” and (2) “the Montgomery County Health Officer encourages women who are or may be pregnant to  consult with a licensed health care provider.”  The sign had to be easily readable, written in English and Spanish, and present in all center waiting rooms.  Tepeyak alleged that the Resolution discriminatorily “aimed at pro-life pregnancy resource centers” and unconstitutionally limited its speech.  Accordingly, Tepeyak sought a preliminary and permanent injunction barring enforcement of the Resolution.  The district court found the first compelled statement of the Resolution was not unconstitutional; however, the second statement was unconstitutional and was to be severed. Both parties appealed.

In finding that the trial court committed no error, the Court of Appeals first noted that the lower court appropriately employed the preliminary injunction standard recently spelled out in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). Under the Winter standard, the movant “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”  The Court then analyzed the district court’s handling of each factor.  Because the Resolution required Tepeyac “to say something it might not otherwise say,” the mandate constituted a content-based regulation of speech.  Furthermore, the lower court determined that the speech was neither commercial nor professional. After applying strict scrutiny, the district court found the second prong was not narrowly tailored to promote the County’s compelling interest. As for the first compelled statement in the disclaimer, the court explained that it did not require any other specific message and “in neutral language states the truth.”  As such, it could stand.  The Fourth Circuit found that no abuse of discretion occurred and applauded the district court’s analysis.  In concluding, the Court aptly noted that “[w]here a preliminary injunction is under an interlocutory examination, determining whether the district court abused its discretion ‘is the extent of our appellate inquiry.’”

Full Opinion

-Kara S. Grevey

Cooksey v. Futrell, No. 12-2323

Decided: June 27, 2013

The Fourth Circuit held that the District Court for the Western District of North Carolina failed to properly analyze the Appellant’s claims under the First Amendment standing framework and therefore vacated its order dismissing the Appellant’s complaint, and remanded for consideration on the merits.

Early in 2009 the Appellant (“Cooksey”) was diagnosed with Type II diabetes and advised, by licensed dietitians, to maintain a diet low in fat and high in carbohydrates. However, after forming his independent conclusion, Cooksey began following the inverse diet, commonly referred to as the “Paleolithic diet.” Soon thereafter, according to Cooksey, he lost 78 pounds, his blood sugar normalized and he was able to stop using insulin as well as other diabetic medications. In January 2010, Cooksey launched a website, www.diabetes-warrior.net, wherein he discussed his lifestyle changes and various topics concerning diets and meal plans. The website contained a disclaimer noting that Cooksey was not a licensed medical professional or dietician. Relevant to this appeal, the website had three main components: (1) an advice column, wherein he answered visitor’s questions; (2) a free “Personal Dietary Monitoring;” and (3) a fee-based “Diabetes Support Life-Coaching” service. Following a nutritional seminar for diabetics in which Cooksey expressed his opinion that a Paleolithic diet is best for diabetics, someone reported him to the North Carolina Board of Dietetics/Nutrition (“State Board” or “Board”). Cooksey was subsequently contacted by the Executive Director of the State Board and informed that his website was under investigation for the unlicensed practice of dietetics/nutrition in violation of the North Carolina’s Dietetics/Nutrition Practice Act (the “Act”). Although reluctantly, Cooksey complied with the directors requests that several changes be made to the website, including eliminating the fee-based diabetic support service because he feared potential civil and criminal penalties under the Act. Several weeks later, Cooksey received a letter from the Executive Director informing him that, as a result of the changes made, the website was in substantial compliance with the act; therefore the complaint filed was being closed. Importantly however, Cooksey was informed that the Board reserved the right to continue to monitor the situation. On May 29, 2012, seeking a declaration that the Act and attendant regulations were unconstitutional, Cooksey filed suit, alleging violations of his First Amendment rights. The district court, citing a failure to demonstrate an injury-in-fact, dismissed the suit for lack of standing. This appeal followed.

On appeal, the Fourth Circuit found that, because the injury-in-fact element in First Amendment cases is commonly satisfied by a sufficient showing of self-censorship, Cooksey made a sufficient showing that he had experienced an objectively reasonable chilling effect of his speech due to the actions of the State Board. Additionally, citing the Executive Director’s communication that she had the “statutory authority” to seek an injunction against him, the court found that the Board’s actions would be likely to deter a person of ordinary firmness from the exercise of First Amendment rights. Thus the court had “no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.” Further, because Cooksey was subject to a credible threat of prosecution under the Act, the court found this provided another independent basis for a sufficient showing of injury. Next, the court addressed the Board’s contention that the First Amendment standing principles did not apply because the Act is a professional regulation that does not abridge the freedom of speech protected under the First Amendment. The court however declined to consider this contention at the standing stage, as any determination would have improperly went to the merits of the case. Lastly, the court found that, because Cooksey desires a clarification of the conduct that he can engage in without the threat of penalty under the Act, his claims are ripe. Therefore, the Fourth Circuit remanded the case back to the Western District of North Carolina for consideration on the merits.

Full Opinion

– W. Ryan Nichols

Carpenters Pension Fund of Baltimore, Maryland v. Maryland Department of Health and Mental Hygiene, 12-1480

Decided: June 26, 2013

The Fourth Circuit Court of Appeals reversed and remanded with instructions to quash the writ of garnishment filed by the Carpenters Pension Fund of Baltimore, Maryland (“the Fund”) against the Maryland Department of Mental Health and Mental Hygiene (the “Department”). The court concluded that a federal proceeding that seeks to attach the property of a state to satisfy a debt, whether styled as a garnishment action or an analogous common law writ, violates the Eleventh Amendment.

In May 2007, the Fund filed suit against Tao Construction Company, Inc. (“Tao”) alleging deficient employer contributions. Tao failed to answer and the district court entered a default judgment against Tao. The Fund filed an enforcement action to collect on the judgment. When the Fund could not locate any assets owed by Tao, it discovered that Tao’s CEO had contracted with the Department to perform construction work. The district court issued a writ of garnishment against the Department for amounts due to Tao. The Department moved to quash the writ on grounds of sovereign immunity and Maryland public policy.

The Fourth Circuit of Appeals addressed whether the jurisdictional shield of the Eleventh Amendment insulates a state from a writ of garnishment under Federal Rule of Civil Procedure 69(a).  Because the Eleventh Amendment gives the states immunity from “suit,” the court first considered whether a writ of garnishment constituted a “suit” against the state. The court followed the test in the Supreme Court case Central Virginia Community College v. Katz, and examined whether the procedural means and substantive end of the instant writ of garnishment involve the compulsory exercise of federal jurisdiction over the state of Maryland. The procedural inquiry measures the degree of coercion exercised by the federal court in compelling the state to attend. The substantive inquiry measures whether the proceeding demands something from the state by the institution of process in a court of justice. In this case, the garnishment proceeding procedurally resembled a conventional “suit.” It was essentially a suit by the debtor against the garnishee for the use and benefit of the attaching creditor. A garnishee who fails to file an answer to the writ risks default judgment. A proceeding that encumbers the property of a sovereign unless it participates amounts to, what the Fourth Circuit deemend, unconstitutional “coercion exercised by the federal court in compelling the state to attend.” It is immaterial that the Department was in fact indebted to Tao because the Eleventh Amendment is a matter of jurisdiction, not liability. Therefore, the court concluded the garnishment action was a “suit” in the procedural sense.

The court also found that the garnishment action satisfies the substantive criteria of a “suit” because it demanded recovery from the state treasury. Courts have upheld this principle to prevent the disruption on government functions that would attend the garnishment of public funds held in the Treasury. Even though the relevant cases mostly concern the immunity of the federal government from post-judgment attachment, the court found no reason why a state should not enjoy this immunity as well. The court also rejected the Fund’s characterization of its garnishment action as an in rem proceeding. The court also went on to say that the characterization was immaterial, so long as the action was ultimately seeking recovery from the Maryland treasury. Therefore, the court concluded the garnishment action was also a suit in the substantive sense. Because the garnishment action was a “suit” under the Eleventh Amendment, the Department was entitled to sovereign immunity. Therefore, the court quashed the Fund’s writ of garnishment.

Full Opinion

– Sarah Bishop

United States v. Baker, No. 12-6624

Decided: June 13, 2013

The Fourth Circuit affirmed the District Court for the Eastern District of Virginia’s decision rejecting Baker’s motion to vacate, set aside, or correct his sentence on the ground that his counsel was unconstitutionally ineffective.

On March 3, 2008, a police officer stopped a vehicle that had a broken taillight and an expired license plate. Mario Baker (“Baker”) was operating the vehicle and Dashawn Brown (“Brown”) was in the front passenger seat. Upon checking Baker’s driver’s license, the officer learned that he had an outstanding federal arrest warrant. He then summoned back-up and, upon another officer’s arrival, arrested Baker. Thereafter, the arresting officer turned Baker over to another officer and focused his attention on Brown. Upon the officer’s command, Brown exited the vehicle but then began to walk away. The officer then commanded Brown to put his hands on the vehicle and a search was performed, uncovering a handgun. Brown then attempted to reenter the vehicle, claiming that he wanted to retrieve his cellphone—which was on the passenger-side floorboard. A struggle ensued and the officer wrestled Brown to the ground, arresting him for possessing the firearm. He then searched Brown incident to the arrest, finding multiple narcotics, a large amount of cash, and a digital scale on his person. After securing Brown in the police car, the officer then searched the passenger compartment of Baker’s vehicle, where he found 20.6 grams of heroin, .24 grams of crack cocaine, 12.2 grams of methadone, and a burnt marijuana joint. He also found another handgun in the glove box. Based on the evidence uncovered during the search of the vehicle, Baker was convicted of various federal firearm and drug offenses. Although Baker’s lawyer filed several motions prior to trial, he never filed a suppression motion challenging the search of Baker’s vehicle. Following his conviction, Baker appealed to the Fourth Circuit. After Baker filed his opening brief, the day before the government filed its response brief, the Supreme Court decided Arizona v. Gant, which held that, under the Fourth Amendment, the “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Baker’s convictions and sentence were affirmed on August 7, 2009. At no point did Baker’s counsel argue that the search of Baker’s vehicle violated the Fourth Amendment under Gant. Baker, proceeding pro se, subsequently filed a motion to vacate, set aside, or correct his sentence, asserting four claims for relief—all of which the district court rejected—denying a certificate of appealability on all claims. The Fourth Circuit, however, granted a partial certificate of appealability to consider the question of whether Baker’s lawyer was ineffective in failing to raise a Gant argument on direct appeal.

On appeal, before conducting its analysis on Baker’s ineffective assistance of counsel claim, the Fourth Circuit addressed the Supreme Court’s decision in Gant and its effect upon searches incident to an arrest as it relates to vehicle searches. Importantly, the court noted that Gant left unaltered other exceptions that might authorize police to search a vehicle without a warrant even when an arrestee is secured beyond reaching distance of the passenger compartment and it is unreasonable to expect to find any evidence of the crime of arrest in the vehicle. Most relevant to this appeal was the so-called automobile exception, which permits a warrantless search of a vehicle when there is probable cause to believe the vehicle contains contraband or other evidence of criminal activity. Next, the court addressed Baker’s contention that his lawyer was unconstitutionally ineffective in failing to challenge the search of his vehicle under Gant on direct appeal. Under the first prong of the Strickland test, the Fourth Circuit found that Baker’s lawyer was not deficient in failing to challenge the evidence because the search was plainly justified under the automobile exception as there was probable cause to search the vehicle following the officer’s finding a gun, drugs, and a digital scale on Brown’s person. Lastly, the court rejected Baker’s argument under the second prong of Strickland, finding that the alleged deficiency did not prejudice Baker because the evidence obtained during the search was not subject to suppression, pursuant to the Fourth Amendment exclusionary rule’s good-faith exception, as the officers were following the law as it existed at the time the search was conducted.

Full Opinion

– W. Ryan Nichols

United States v. Hashime, No. 12-5039

Filed:  June 10, 2013

The Fourth Circuit denied Faisal Hashime’s petition for a hearing en banc.  However, Judge Gregory wrote a concurring opinion to voice his support for revision of the Fourth Circuit’s Eighth Amendment jurisprudence.

Hashime was convicted of several crimes involving child pornography.  On appeal, he alleged a violation of his Miranda rights and challenged his sentence under the Eighth Amendment.  Hashime also asked the full Fourth Circuit to “review and correct” its Eighth Amendment jurisprudence before hearing his appeal.  His petition was circulated to the full court; however, none of the judges requested a poll pursuant to Rule 35 of the Federal Rules of Appellate Procedure, resulting in a denial of the petition.

Judge Gregory concurred in the Fourth Circuit’s initial denial of a hearing en banc, but only for purposes of efficiency.  He noted that resolution of the Miranda matter would moot Hashime’s Eighth Amendment argument—an argument Judge Gregory found meritorious.  Unlike other circuit courts, the Fourth Circuit does not provide Eighth Amendment proportionality review for sentences less than life imprisonment without parole.  Judge Gregory asserted that this anomalous stance is also contrary to the Supreme Court’s Eighth Amendment jurisprudence.  He noted that, inter alia, the Supreme Court has never stated that term-of-years sentences will survive the proportionality analysis per se, and that the Court “has strongly suggested that Eighth Amendment proportionality review applies equally to both life and term-of-years sentences.”  Thus, without taking a stance on the merits of Hashime’s appeal, Judge Gregory called on the Fourth Circuit to revise its Eighth Amendment jurisprudence when prudentially appropriate.

Full Opinion

– Stephen Sutherland

American Petroleum Institute v. Cooper, No. 12-1078

Decided:  June 6, 2013

The Fourth Circuit held that the federal Petroleum Marketing Practices Act (“PMPA”) and Energy Policy Act of 2005 (“Energy Policy Act” or “federal renewable fuel program”) did not preempt North Carolina’s Ethanol Blending Statute (“the Blending Statute”), and that the question of whether the federal Lanham Act preempted the “splash blending” practice required by the Blending Statute constituted an issue of material fact.  The Fourth Circuit therefore affirmed the summary judgment of the United States District Court for the Eastern District of North Carolina with regard to the plaintiffs’ preemption claims under the PMPA and federal renewable fuel program, vacated the summary judgment with regard to the plaintiffs’ preemption claims under the Lanham Act, and remanded the case.

In furtherance of the Energy Policy Act, 42 U.S.C. § 7545(o), Congress authorized the Environmental Protection Agency (“EPA”) to require gasoline “suppliers”—i.e., parties that import pure gasoline to sell to “retailers,” who then deliver ethanol to consumers or final market vendors—to offer certain renewable fuels for sale, including ethanol.  As a practical matter, suppliers can blend ethanol with gasoline before its eventual sale to retailers (“inline blending”); conversely, retailers can purchase unblended gasoline and blend it themselves (“splash blending”).  Under the Blending Statute, N.C. Gen. Stat. § 75-90 (2008), suppliers must offer unblended gasoline to retailers—giving retailers the chance to partake in splash blending.  The plaintiffs—two trade organizations representing, inter alia, suppliers that import gasoline into North Carolina—filed a complaint against the State of North Caroline in 2008, concerned with splash blending’s alleged susceptibility to error.  The plaintiffs alleged that, inter alia, the federal renewable fuel program preempted the Blending Statute.  The plaintiffs also contended that the Blending Statute was preempted by two other federal statutes:  The PMPA, 15 U.S.C. §§ 2801–41, which governs the relationship between suppliers and retailers, and the Lanham Act, 15 U.S.C. §§ 1051–1113, which protects the quality-control rights of trademark holders.  The district court granted summary judgment to the defendants on the plaintiffs’ facial challenges to the Blending Statute, and subsequently granted summary judgment to the defendants with regard to the plaintiffs’ as-applied preemption challenges.  The plaintiffs appealed, reiterating their preemption challenges under each statute.

The Fourth Circuit noted that the PMPA’s preemptive scope was substantially narrowed by two 1994 amendments, which granted more deference to state laws governing supplier-retailer franchise arrangements – 15 U.S.C. §§ 2801(13)(C), 2802(b)(2)(A); § 2805(f)(1)(B).  Furthermore, the Fourth Circuit found that splash blending did not constitute “willful adulteration” warranting termination of a franchise agreement under the PMPA, as this term connoted “misbranding” or similar trademark violations rather than adulteration of fuel content; indeed, the court noted that ethanol blending is required and incentivized by Congress.  With regard to the federal renewable fuel program, the Fourth Circuit noted that, under the EPA’s regulatory regime, retailers were recognized as potential ethanol blenders.  Lastly, with regard to the Lanham Act preemption claim, the Fourth Circuit found that issues of material fact existed as to whether the splash blending process unlawfully interfered with the plaintiffs’ ability to control the quality of their trademarked goods.

Full Opinion

– Stephen Sutherland

United States v. Castellanos, No. 12-4108

Decided: May 29, 2013

The Fourth Circuit affirmed the judgment of the district court that Castellanos failed to prove he had a legitimate expectation of privacy in a vehicle that was holding cocaine in its gas tank and being transported on a commercial car carrier.

On September 20, 2010, Captain Kevin Roberts of the Reeves County, Texas, Sheriff’s Department was conducted a routine patrol in Pecos, Texas when he observed a Direct Auto Shippers (“DAS”) commercial car carrier at a gas station. Captain Roberts first became suspicious of a Ford Explorer (“the Explorer”) that was being transported on the DAS carrier  when he noticed that it bore a dealership plate rather than a traditional license plate.  After questioning the DAS driver, Roberts was provided the shipping documents that identified the owner of the Explorer as Wilmer Castenada.  The documents also provided that the trip origin was in California with a final destination in North Carolina.  Roberts attempted to contact Castenada with no luck.  He also attempted to verify the origin and destination of the vehicle by contacting the locations on the shipping documents, but both locations were not associated with Castenada nor were the business representatives that answered the phone aware of the delivery.  Without being able to contact Castenada, Roberts asked the DAS driver if he could search the vehicle; to which the driver acquiesced.  The initial search revealed several abnormalities and caused Roberts to insert a fiber optic scope into the vehicle’s gas tank, which revealed several blue bags floating in the tank.  Roberts then requested to take custody of the vehicle and a more in-depth search revealed “23 kilogram-sized bricks of cocaine with a street value of approximately $3 million.”    After the search, DAS informed Roberts that someone claiming to be Castenada had contacted DAS and was asking about the delivery of the Explorer.  Roberts then lured the caller by telling him that the driver of the DAS carrier had been arrested and the Explorer had been impounded.  A few days later, Roberts was told that someone identified as Castellanos had arrived in the area and was waiting for a ride to pick up the Explorer from the impound lot.  Police subsequently detained Castellanos, who had, inter alia, the title to the Explorer in his possession, the DAS tracking number for the vehicle, and other documentation linking him to the Explorer.  He initially waived his Miranda rights and told Roberts he was in the process of purchasing the vehicle from Castenada, who lived in North Carolina, and that he was instructed to pick up the vehicle and drive it to North Carolina.  After Roberts challenged the story, Castellanos discontinued the interview.  Police also seized circumstantial evidence from a co-conspirator that linked Castellanos to the vehicle.  Castellanos was indicted in the Middle District of North Carolina on one count of conspiracy to distribute cocaine hydrochloride.  Prior to trial, he attempted to suppress the search of the cocaine found in the gas tank.  The district court fueled that Castellanos had not introduced any evidence to show that he owned the Explorer and, as a result, could not object to the search of the vehicle because he had no reasonable expectation of privacy to its contents.  Castellanos entered into a conditional plea agreement and pled guilty to the sole count of the indictment, but reserved his right to appeal the district court’s decision to deny his motion to suppress the evidence.

The Fourth Circuit only addressed the issue that Castellanos could not challenge the search because he could not show that he had a reasonable expectation of privacy in the Explorer’s gas tank.  The Fourth Circuit reviewed the district court’s legal conclusions de novo because the district court had made no finding of fact.  The Fourth Circuit agreed with the Government that Castellanos “failed to demonstrate by a preponderance of the evidence that, at the time of the search, the evidence showed that he had a legitimate expectation of privacy in the Explorer.”  Though Castellanos asserted that he was purchasing the Explorer from Castenada, there was no evidence entered into the record to prove that fact.  Rather, Castellanos did not enter the title of the Explorer into evidence nor did he provide any bill of sale.  He also failed to show that anyone had give him permission to use the vehicle or any other right with respect to the vehicle.  In the end, Castellanos failure to provide any evidence definitively linking him to the Explorer forced the court to hold that Castellanos failed to support a conclusion that he “had anything more than a distantly attenuated connection to the Explorer” and, as such, had no reasonable expectation of privacy in its contents.  Therefore, he could not challenge the warrantless search on those grounds.

Full opinion

– John G. Tamasitis

Libertarian Party of Virginia v. Judd, No. 12-1996

Decided: May 29, 2013

Affirming the District Court for the Eastern District of Virginia, the Fourth Circuit held that petitioners had standing to challenge the constitutionality of a residency requirement for petitions and also held that the residency requirement is unconstitutional.

The Libertarian Party of Virginia (LPVA) circulated petitions in Virginia with the hope to collect enough signatures to place its national candidate for President of the United States on the ballot in November 2012.  Virginia law requires 10,000 signatures from qualified Virginia voters, with at least 400 signatures from each of Virginia’s eleven congressional districts.  Virginia law also requires the candidate personally or a Virginia resident who can vote to witness the signatures.  In May 2012, the LPVA and Darryl Bonner, a Pennsylvania Libertarian and professional petition circulator, filed suit seeking injunctive and declarative relief alleging that the “witness residency requirement impermissibly burdens their rights to free speech and free association under the First Amendment.”  The Virginia State Board of Elections (Board) contested the standing of the LPVA and Bonner.  The district court rejected the Board’s standing argument and declared the witness residency requirement unconstitutional.  The Board appealed.

The Fourth Circuit addressed the standing issue first.  The Court held that the encumbrance on the LVPA’s ability to circulate petitions constitutes an injury in fact for standing purposes.  The Court also examined standing for Bonner.  The Board challenged Bonner’s standing because he was currently injured and thus would not be able to petition signatures; Bonner was suffering from a right knee injury which had “scotched his immediate plans to circulate petitions for the LPVA.”   The Court stated that his legal injury “related more closely to his asserted injury than does his physical infirmity,” the residency requirement would impair his ability to petition in 2016, and he still could have sat on a street corner and petitioned people for signatures.  Thus, the Fourth Circuit held that both LPVA and Bonner had standing to challenge the residency requirement.

The Fourth Circuit then addressed the merits of the LPVA’s and Bonner’s argument.  The Court followed other circuits by applying strict scrutiny analysis to petitioning restrictions like the residency requirement.  The Board argued its compelling interest was in preventing election fraud, which the Court and the parties agreed was a compelling interest.  The Board argued that the “integrity of the petitioning process depends on ‘state election officials access to the one person who can attest to the authenticity of potentially thousands of signatures, . . . access made more difficult, perhaps, if the witness resides beyond the subpoena power of the state.”  The LVPA and Bonner argued that the Board could make out-of-state witnesses sign a binding legal agreement to comply with any civil or criminal subpoena the Board may issue.  The Court agreed that this was a less intrusive alternative, and the Board introduced no meaningful evidence to rebut this alternative.  Thus, the Fourth Circuit held that the witness residency requirement is unconstitutional.

Full opinion

Jeffrey K. Gurney

Williams v. Ozmint, No. 11-6940

Decided:  May 19, 2013

The Fourth Circuit held that prison inmate Jerome Williams had no clearly established constitutional right to visitation, therefore granting Warden Willie Eagleton qualified immunity from monetary damages for suspending Williams’s visitation privileges; that Williams’s claim for injunctive relief was mooted by the restoration of his visitation privileges; that Williams’s complaint did not raise a claim for declaratory relief; and that Williams’s challenge to a federal jury verdict and claim of ineffective assistance of counsel lacked merit.  The Fourth Circuit therefore dismissed Williams’s claim for injunctive relief, and affirmed the judgment of the United States District Court for the District of South Carolina on the other aspects of his case.

Jerome Williams, an inmate serving a life sentence at a South Carolina prison, met with a visitor named Marilyn Massey on March 31, 2007.  The two met in a prison visitation room monitored by Officer Johnson.  After observing activities indicating that Massey had given marijuana to Williams, and that Williams had then placed the marijuana in his pants, Officer Johnson and other officers confronted Williams and strip-searched him.  However, the strip search did not reveal any contraband; a later search of Williams’s excrement also did not reveal evidence of marijuana use.  Though he was not charged with a disciplinary offense, Williams was subsequently held in disciplinary confinement for over two months.  On April 4, 2007, Warden Eagleton informed Williams that his visitation privileges would be suspended for two years—from March 31, 2007, to March 20, 2009—because he “was observed receiving contraband from [his] visitor and placing it in [his] pants.”  Williams filed a pro se complaint in a South Carolina state court in December 2008 under 42 U.S.C. § 1983.  Williams claimed, inter alia, that Warden Eagleton had unconstitutionally deprived of his visitation privileges and that Officer Johnson had used excessive force against him.  Williams sought monetary relief, restoration of his visitation privileges, and “any other relief that seems just and proper.”  The defendants removed the case to federal court.  The federal district court denied the defendants’ motion for summary judgment regarding the excessive force claim, but granted them summary judgment on all other claims; a jury then ruled in favor of Officer Johnson on the excessive force claim.  The district court entered a judgment in favor of the defendants, and Williams appealed.

Dismissing Williams’s initial contention that the case had to be remanded for further discovery on prison policies, the Fourth Circuit then determined that Warden Eagleton was shielded from monetary damages by the doctrine of qualified immunity.  The court noted that qualified immunity can only apply if the violated right was “clearly established” when the official’s conduct occurred.  As Williams cited no cases from the Supreme Court, the Fourth Circuit, or the Supreme Court of South Carolina that identify visitation as a “clearly established” right, he did not prove that the Warden violated such a right by suspending his visitation.  The Fourth Circuit then held that Williams’s claim for injunctive relief was moot, as the visitation privileges requested in his complaint had already been restored.  Furthermore, the case was not “capable of repetition yet evading review,” as Williams did not demonstrate that his visitation privileges would be suspended in the future.  According to the court, Williams’s invocation of the mootness exception “rest[ed] either on mere speculation, or on the possibility that he will violate prison rules in the future”—neither of which can be used to invoke the capable-of-repetition doctrine.  The court also ruled that, even construed liberally, Williams’s complaint did not raise a claim for declaratory relief; furthermore, his desire to obtain “any other relief that seems just and proper” was too much of a “fleeting reference[]” to constitute a claim for declaratory relief.  Lastly, the Fourth Circuit found Williams’s challenge to the jury verdict on the excessive force claim too conclusory to meet the “burden of demonstrating a substantial question warranting the production of a transcript at government expense”; additionally, the court rejected his claim of ineffective assistance of counsel, as counsel is not constitutionally required in § 1983 suits.

Full Opinion

– Stephen Sutherland

Jane Doe v. Virginia Department of State Police, No. 11-1841

Decided April 12, 2013

The Fourth Circuit Court of Appeals affirmed the district court’s dismissal of the plaintiff’s claims challenging sections 9.1–900 et seq. and 18.2-370.5 of the Virginia Code, as well as the policy of the Spotsylvania County School Board (“the Board”) for implementing the Code, on the basis that the claims were not justiciable.

The plaintiff, Jane Doe (“Doe”), had a sexual relationship with a minor child who was a student under her supervision. For this Doe was convicted in 1993 of the felony of having carnal knowledge of a minor, without the use of force. Under the Virginia Code at that time, Doe was required to publicly register as a sex offender, but could after a certain period of time petition a Virginia circuit court for removal from the Registry. However, in 2008, an amendment reclassified Doe’s conviction as a “sexually violent offense.” Sexually violent offenders cannot petition for removal from the Registry and, therefore, remain on it for life. In addition, sexually violent offenders are forbidden from accessing any school property without a successful petition from both (1) a circuit court and (2) a school board or owner of a private daycare. Therefore, under this classification, Doe must first successfully petition a school to access any school property, specifically that of her eleven-year-old stepson and two biological children nearing school age. Without a petition, Doe cannot attend parent-teacher conferences or other school functions, nor can she drop off or pick up her kids from school. Doe contended that this would force her to home school the children. Although she did not actually attempt to petition the school, Doe challenged this requirement on the basis that she could not acquire such a petition without revealing her identity and thereby tarnishing her family’s reputation.

Rather than petitioning either a circuit court or the school board, Doe instead brought a complaint against the Superintendent of the Department and the Board, alleging violations of her substantive due process, procedural due process, associational, and free exercise rights. Most notably, Doe alleged that the defendants infringed upon her fundamental right to raise and educate her children and that the Board violated her right to procedural due process by failing to provide her with a procedure by which she may anonymously petition to enter school property. She petitioned the court to declare the reclassification and, therefore, its registration and petition requirements unconstitutional and to order the Board to implement an anonymous petition procedure.

The Court of Appeals reviewed de novo the district court’s dismissal of Doe’s claims for lack of ripeness and standing. To have Article III standing, Doe must have an (1) actual injury, (2) that is traceable to the conduct, and (3) likely to be redressed. Because Doe has not yet attempted to petition, the court found that the injury arising from the Board’s lack of an anonymous procedure was only hypothetical, rather than “actual or imminent.” The court did, however, recognize an actual injury to Doe as a result of the Superintendent’s making her reclassification publicly available in the Registry without affording her a challenging procedure. Therefore, the court did find the requisite injury for standing in Doe’s procedural due process claim against the Superintendent but not in her substantive due process claim against the Board. The court then addressed the standing requirements of traceability and redressability. Both prongs become problematic when third persons not party to the litigation must act in order for an injury to arise or be cured. Because the Virginia statute allows for third parties to grant her permission to enter the school properties, the court found that Doe could not establish either prong. Doe’s right to access school property depends on the school, rather than the court. Where she has not petitioned the school, which is the entity with final authority over the matter, the court’s relief might not redress Doe’s injury. Regarding the claim against the Board for lack of an anonymous petition procedure, the court also declined to find redressability. Even if such a procedure were implemented, the statute still requires court approval for a successful petition and, therefore, the Court of Appeals declined to find redressability where relief was dependent on an additional party. However, the court did recognize traceability and redressability where Doe’s injury was the reclassification itself.

The court then addressed the ripeness requirement, which is determined by balancing the fitness of the issues for judicial decision with the hardship to the parties of withholding court consideration. Because Doe had not yet petitioned, the court found that the issues were not fit for judicial decision. The court also found that the Virginia law would not cause her undue hardship. However, again the court did recognize ripeness of Doe’s procedural due process claim, where her injury arose from the reclassification itself, rather than a speculative petition process. But, even though the court recognized standing and ripeness of Doe’s procedural due process claim, it did not withstand Federal Rule of Civil Procedure 12(b)(6). The court cited to the Supreme Court’s holding in Conn. Dep’t of Pub. Safety v. Doe requiring the registry information for all sex offenders to be publicly disclosed- whether the offenders have been proven dangerous or not.

Full Opinion

– Sarah Bishop

United States v. Graham, No. 09-5067

Decided:  March 29, 2013

William Leonard Graham appealed his conviction of one count of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846.  On appeal, Graham asserted reversible error on three bases:  (1) an alleged violation of the Court Reporter Act, 28 U.S.C. § 753(b); (2) the admission of statements by coconspirators recorded during wiretapped conversations; and (3) a life sentence that allegedly contravenes the Constitution.  The Fourth Circuit rejected Graham’s three contentions and affirmed the district court’s judgment.

Graham’s first argument on appeal is based on the fact that the Government introduced numerous recordings of wiretap conversations among Graham’s codefendants in which Graham was not a participant.  On appeal, the Fourth Circuit appointed appellate counsel for Graham, and because none of the recordings played during trial were recorded or transcribed by the court reporter during their presentation to the jury, the appointed counsel was concerned that he had incomplete knowledge of the trial record that could impede his representation of Graham on appeal.  Therefore, the Fourth Circuit granted a consent motion to rescind the briefing order, and the district court subsequently held an evidentiary hearing to determine which of the recordings were originally played for the jury during Graham’s trial.  Despite the district court’s conclusion identifying the recordings that were played at trial, Graham argued that the court reporter’s failure to transcribe the contents of the wiretap conversations played to the jury during trial constituted a violation of the Court Reporter Act (“CRA”), 28 U.S.C. § 753(b).  The Fourth Circuit reviewed the district court’s compliance with the CRA de novo and concluded that it did not need to resolve the issue because Graham could not satisfy the elements needed to obtain a new trial based on transcript errors, as described in its decision in United States v. Brown.  Specifically, the Court found that the district court’s findings with respect to the recordings “were amply supported by the evidence presented at the [evidentiary] hearing and enabled Graham to ‘perfect [his] appeal.’”  Therefore, Graham could not establish the prejudice necessary to substantiate his claim under the CRA.

Next, “Graham ague[d] that the district court erred in admitting the wiretap conversations of his coconspirators under Federal Rule of Evidence … 801(d)(2)(E) because the tapes merely captured ‘idle chatter’ between them about Graham’s past debt for marijuana, and because the conversations were not in the course, or in furtherance, of a conspiracy.  The Court reviewed the district court’s admission of the statements for abuse of discretion and noted that the “existence of the three prongs of admissibility for coconspirator statements … must be supported by a preponderance of the evidence.”  (citation omitted).  On this issue, the Court first addressed Graham’s contention “that the district court erred by not making explicit findings on the existence of a conspiracy prior to admitting the statements.”  The Court dismissed this argument, finding that “a trial court is not required to hold a hearing to determine whether a conspiracy exists before admitting statements under the rule, and the court need not explain the reasoning behind the evidentiary ruling.”  (citation omitted).  Second, the Court assessed Graham’s argument “that each of the five recordings played for the jury was nothing more than ‘profanity laden conversation’ about collecting a debt from Graham” and that the conversations could not constitute coconspirator statements.  The Court found that even though Graham was not captured in any of the calls between the coconspirators that were recorded during the Government’s investigation leading up to the case, “and even though there was adversity between Graham and his coconspirators, each call played at trial contained discussions that rendered them ‘in furtherance’ of the overall conspiracy.”  Therefore, the Court ultimately found the district court’s admission of the statements to be neither erroneous nor an abuse of discretion.

Finally, Graham challenged his mandatory life sentence imposed by the district court judge after the Government informed the judge that Graham faced a mandatory life sentence because it had filed an information under 21 U.S.C. § 851 based on Graham’s three prior felony offenses.  Graham argued that his life sentence contravenes the Constitution.  The Court rejected this argument, finding that it was bound by the Supreme Court’s decision in Almendarez-Torres v. United States, which holds that Graham’s argument cannot be sustained.

Full Opinion

– Allison Hite

McCauley v. Home Loan Investment Bank, No. 12-1181

Decided: March 25, 2013

Charlotte McCauley appealed the district court’s dismissal of her state law claims against Home Loan Investment Bank, F.S.B. (Home Loan) and Deutsche Bank National Trust Company (Deutsche Bank). The district court held that McCauley’s claims were preempted by the Home Owners’ Loan Act (“HOLA”). The Fourth Circuit Court of Appeals affirmed in part, revered in part, and remanded for further proceedings.

In 2001, McCauley bought a home in West Virginia under an installment sales contract. In 2006, McCauley paid off the installment sales contract with financing from Ocean Bank, F.S.B. (Ocean Bank). According to McCauley, the Ocean Bank appraiser falsely represented the value of the home as $51,000 or more, when it was actually worth approximately $35,700. Based on its assessment, Ocean Bank loaned McCauley $51,000. McCauley further alleged that during the loan closing, she received inadequate explanation of the closing documents. McCauley’s initial interest rate was 9.4 percent, but the loan was actually an adjustable rate mortgage that allowed the interest rate to “explode” to 15.49 percent. Because of the high interest rate, McCauley struggled with her loan payments and ultimately declared bankruptcy in 2010. Subsequently, McCauley sued Home Loan, the successor in interest to Ocean Bank, in West Virginia state court on the grounds of unconscionability and fraud. McCauley argued that the mortgage contract was unconscionable for the following reasons: the closing was hurried and conducted with inadequate explanation, the loan was induced by an inflated appraisal, and the loan’s terms were substantively unfair. Also, McCauley argued that Ocean Bank committed fraud by misrepresenting the market value of her property for the purpose of inducing her into the mortgage contract. At trial, the district court dismissed McCauley’s claims on the ground that they were preempted by HOLA. McCauley then filed a timely appeal.

The Fourth Circuit explained that under HOLA’s implementing regulation, certain types of laws are specifically preempted. The district court analyzed each aspect of McCauley’s unconscionability claim—the hurried closing, the inducement by inflated appraisal, the disparity between the size of the loan, and the value of the home—and found that each was of the nature of the laws specifically preempted under HOLA. McCauley argued that if the district court had analyzed her unconscionability claim as a whole instead in pieces, it would have determined that it was not preempted under HOLA. The Fourth Circuit disagreed and held that HOLA’s framework requires an analysis of each component of a plaintiff’s claim. Therefore, the court found that McCauley’s unconscionability allegations were specifically preempted.

Despite its ruling on the unconscionable claim, the court found that McCauley’s fraud claim was not preempted under HOLA.  The court first found that intentional misrepresentation is not specifically preempted. Under the HOLA framework, however, a law can still be preempted if it “affects lending.” The court held that intentional misrepresentation only incidentally affects lending, and therefore, it reversed the district court’s dismissal of McCauley’s fraud claim.

Full Opinion

-Graham Mitchell

Hardwick v. Heyward, No. 12-1445

Decided: March 25, 2013

From 2002 until 2006 Candice Hardwick was a student who first attended Latta Middle School and then attended Latta High School in Latta, South Carolina.  During this time, Hardwick repeatedly wore to school various shirts that displayed the Confederate flag.  School officials routinely forced Hardwick to change out of these shirts and prohibited her from wearing this type of clothing.  In one incident, Hardwick was briefly suspended for refusing to change out of a shirt that displayed a picture of Robert E. Lee and the Confederate flag.  Hardwick also wore—and was subsequently forced to remove—so-called “protest shirts”—shirts that displayed words and imagery in protest of the school’s dress code policy.

After several unsuccessful attempts to persuade officials from the Latta School District to reconsider the schools’ position against Hardwick’s apparel, Hardwick’s parents (on behalf of Hardwick) filed a lawsuit against the two schools’ principals and the school district’s board of trustees.  Hardwick claimed under 42 U.S.C. § 1983 that the schools’ actions had violated her First Amendment right to free speech and expression.  In addition, Hardwick alleged that the schools’ dress code policies were overbroad and vague and that their enforcement was in violation of her Fourteenth Amendment right to due process.   The U.S. District Court for the District of South Carolina granted the defendants’ motion for summary judgment on each of Hardwick’s claims.

On appeal, the Fourth Circuit first considered the First Amendment claim.  The court stated that there was clear evidence in the record indicating that “school officials could reasonably forecast that all of these Confederate flag shirts ‘would materially and substantially disrupt the work and discipline of the school.’”  The court discussed the history and demographics of the town of Latta, including past racial tension and incidents specifically associated with the Confederate flag.  Although the community and its schools had made “progress in race relations, [they were] not immune from incidents of racial conflict.”  And because of the “vastly different views among students about the meaning of the Confederate flag,” the schools were justified in determining that a prohibition on Confederate flag shirts was necessary to prevent a disruption.  Thus, the court held that the Latta school officials did not violate Hardwick’s First Amendment right.

With respect to Hardwick’s due process claim, the court examined the language of the school district’s dress code, which provided in part: “‘Generally, student dress is considered appropriate as long as it does not distract others, interfere with the instructional programs, or otherwise cause disruption.’”  Moreover, the dress code proscribes “‘[s]hirts with obscene/derogatory sayings’” and clothing that is “‘deemed to be offensive.’”   According to the Fourth Circuit, the school district’s dress code was neither overbroad nor vague.  The court stated that the dress code policy was clear enough for a student to be able to “conform her speech to the required standards,” further pointing out that Hardwick was explicitly aware that Confederate flag apparel was not permitted under the terms of the dress code.  Thus, the court held that Hardwick’s Fourteenth Amendment right to due process had not been violated.

Full Opinion

-John C. Bruton, III

Woollard v. Gallagher, No. 12-1437

Decided: March 21, 2013

The Fourth Circuit reversed the judgment of district court, which permanently enjoined enforcement of § 5-306(a)(5)(ii) of the Public Safety Article of the Maryland Code which conditions carrying a handgun in public on having “good and substantial reason to do so.”  The Fourth Circuit held that the good-and-substantial-reason requirement was constitutional, and thus did not have to address the district court’s “trailblazing pronouncement that the Second Amendment right to keep and bear arms for the purpose of self-defense extends outside the home.”

Four primary categories of applicants demonstrate “good and substantial reason[s]” to obtain a handgun permit: (1) business activities, (2) regulated professions, (3) “assumed risk” professions, and (4) personal protection.  For personal protection, the Permit Unit considers whether the applicant needs a handgun permit as a safeguard against “apprehended danger.”   On July 20, 2010, Raymond Wollard and the Second Amendment Foundation, Inc., initiated this action asserting that Maryland’s good-and-substantial-reason requirement for obtaining a handgun permit contravenes the Second Amendment.  Wollard was attacked in his home by his son-in-law and restored order with his personal guns.  Wollard subsequently applied for a handgun permit and was denied.

The case is decided under the two-part Chester inquiry: (1) whether the challenged law imposes a burden on conduct within the scope of the Second Amendment’s guarantee, and (2) application of an appropriate form of means-ends scrutiny.  Courts are not obliged to impart a definitive ruling under the first step, and many courts instead resolve post-Heller challenges under the second step.  The Fourth Circuit applies intermediate scrutiny and holds that the State has satisfied the standard as the good-and-substantial-reason requirement for obtaining a Maryland handgun permit is reasonably adapted to a substantial governmental interest.

Full Opinion

-Jenna Hendricks

United States v. Bernard, No. 11-4054

Decided on: February 28, 2013

Michael Defonte Bernard appealed the district court’s decision to allow him to represent himself at trial, despite his questionable mental capacity. Bernard argued that Indiana v. Edwards, 554 U.S. 164 (2008), required that, where a borderline competent defendant seeks to represent himself at trial, the court must conduct an additional inquiry and hold the defendant to a higher standard of competency. The Fourth Circuit disagreed and affirmed the district court’s decision.

Bernard suffered from a long history of mental illness and drug abuse. A grand jury indicted Bernard on various charges. After a court-ordered evaluation, a government psychologist recommended that Bernard be found incompetent to stand trial because of his schizophrenia, paranoid delusions, and disorganized thought processes. Subsequently, a second psychologist recommended that Bernard be found competent to stand trial because his medications enabled him to understand the proceedings and assist his counsel. Bernard then made a request to proceed pro se, which the court granted, provided that Bernard have standby counsel. At trial, Bernard made no objections during the Government’s case-in-chief, failed to question two witnesses, and failed to call witnesses on his own behalf. The jury deliberated for only 12 minutes before finding Bernard guilty. At sentencing, Bernard was fully represented by former standby counsel, and was ultimately sentenced to 180 months imprisonment.

Bernard raised several arguments for the first time on appeal, thus the Fourth Circuit reviewed for plain error. Bernard could waive his right to counsel and represent himself, provided that certain requirements were met, but the right to self-representation must be weighed against the government’s interest in ensuring integrity and efficacy at trial. In Edwards, 554 U.S. at 177, the court recognized that the trial court is in the best position to assess mental competency. Edwards held that “the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial…but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Id. at 175–76. Edwards does not compel the State to insist Bernard proceed with counsel, but rather outlines a permissive rule. Bernard argued that the court knew of his “severe mental illness,” and thus should have acted, pursuant to Edwards, to deny him the right to proceed pro se. However, the Fourth Circuit noted that the district court satisfied itself at the start of and throughout trial that Bernard was competent, and thus did not commit plain error. Accordingly, the Fourth Circuit affirmed the district court’s decision.

Circuit Judge Diaz dissented on the grounds that the district court was unaware of the discretion afforded by Edwards to apply a higher mental competency standard when deciding whether Bernard could waive his right to counsel. The district court thus abused its discretion by reaching a permissible result it believed to be mandatory.

Full Opinion

-Michelle Theret

United States v. Under Seal, No. 12-4055

Decided: February 26, 2013

A juvenile defendant-appellant appealed part of his sentence that required him to register under the Sex Offender Registration and Notification Act (“SORNA”).  Appellant claimed that requiring him to register contravened his confidentiality protection under the Federal Juvenile Delinquency Act (“FJDA”) and violated the Eighth Amendment’s prohibition on cruel and unusual punishment.  The Fourth Circuit Court of Appeals held that the District Court did not err for imposing this condition of his sentence.

The defendant-appellant admitted to sexually abusing his two half-sisters, ages ten and six at the time.  He was charged with a one-count Information filed under seal in the District of South Carolina; the Information alleged that he was a juvenile under the age of eighteen and had committed an act of juvenile delinquency, aggravated sexual abuse.  He was sentenced to incarceration and juvenile delinquent supervision; he was also required to comply with the mandatory reporting requirements of SORNA.

The Fourth Circuit considered the conflict between the FJDA, requiring juvenile information to be kept confidential, and the mandatory reporting requirements of SORNA which requires typically confidential information about juveniles to be made public.  When two statutes conflict, a more specific statute controls over a more generalized provision; therefore, the Court concluded that the specific provision of SORNA which provides that juvenile sex offenders over the age of fourteen register controlled the outcome of this conflict.  This was further supported by Congressional intent where the legislative history showed in balancing between juvenile confidentiality and public safety, the policy choice was made to protect the public and potential victims by requiring minors to register.  The court also noted that the later in time statute should rule, and SORNA was enacted later than the FJDA.

The Court also considered the defendant-appellant’s argument that the SORNA reporting requirement violated the Eighth Amendment.  To determine whether SORNA’s requirements rose to the level of punishment, the court must consider whether the civil regulatory scheme is punitive in purpose or effect.  The court considered the seven factors from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).  The court concluded that SORNA was a civil, nonpunitive regulatory scheme in purpose and effect, and therefore did not violate the Eighth amendment.  Therefore, the district court’s judgment was affirmed.

Full Opinion

-Jennifer B. Routh

Moore-King v. County of Chesterfield, No. 11-2183

Decided: February 26, 2013

In this case, a psychic and spiritual counselor in Chesterfield County, Virginia, brought an action in federal court challenging the county’s ordinance regulating the activities of “fortune tellers”—a statutorily defined term that encompassed the plaintiff’s profession.  The plaintiff alleged that the county’s regulatory scheme violated her First Amendment rights to free speech and free exercise of religion, her rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., and her rights under the Fourteenth Amendment’s Equal Protection Clause.  The district court granted summary judgment for the defendant on each claim.

On appeal, the Fourth Circuit stated that fortune telling activity was an exercise of speech entitled to some degree of First Amendment protection; however, the court, applying the “professional speech doctrine” derived from the Supreme Court, concluded that the county’s regulation of the fortunate telling occupation did not violate the plaintiff’s constitutional right to free speech.  The Fourth Circuit also concluded that the plaintiff’s set of beliefs more closely resembled a philosophical “way of life” as opposed to a religious faith.  Thus, the court affirmed the district court’s determination that the county had not violated the plaintiff’s right to freely exercise her religion under the First Amendment or the RLUIPA.  And finally, the court ruled that the county had not abridged the plaintiff’s right to equal protection under the law. Under a rational basis analysis, the court held that the plaintiff failed to overcome the presumption that the licensing and zoning ordinances applicable to fortune tellers were reasonably related to the county’s interest in regulating that particular profession.

Full Opinion

-John C. Bruton, III

United States v. Fisher, No. 11-6781

Decided:  April 1, 2013

The Fourth Circuit reversed the judgment of the district court and held that a Drug Enforcement Agency (“DEA”) officer’s misconduct – deliberately lying on an affidavit for a search warrant that produced the sole basis for a search of the defendant’s home where evidence was uncovered that provided the foundation for the criminal charge – rendered defendant’s guilty plea involuntary and violated his due process rights.

Mark Lunsford, a Baltimore City DEA Task Force Officer, applied for a warrant to search Cortez Fisher’s residence and vehicle for evidence of a crime.  Lunsford provided the sole affidavit to accompany the application for the warrant.  The affidavit provided that Lunsford first became aware of Fisher after a confidential informant indicated that Fisher was distributing narcotics and had a handgun in his residence.  On the basis of this lone affidavit, Lunsford obtained the warrant and executed a search on Fisher’s vehicle and residence.   The search resulted in the discovery and seizure of crack cocaine and a loaded handgun.  Defendant was later charged with possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841 and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g).  Defendant entered into a plea agreement where he plead guilty to the illegal firearm charge and was sentenced to ten years in prison.  Over a year later, Lunsford was charged with various offenses, including “falsely attributing information to a confidential informant with whom he was splitting reward money.”  Lunsford later admitted that the confidential informant that he identified in his affidavit to search Fisher’s residence and vehicle “had no connection to the case” and that someone else was the actual informant.  Following his guilt plea, Fisher filed a pro se motion seeking to have his guilt plea vacated. The district court denied Fisher’s motion to vacate under the reasoning that Fisher did not deny he had, in fact, unlawfully possessed a firearm regardless of Lunsford’s conduct.

On appeal, Fisher argued that Lunsford’s deliberate misrepresentations in the affidavit, which was the sole basis for obtaining the search warrant, “induced” the guilty plea and, as a result, rendered his plea involuntary and invalid under the standard set forth in Brady v. United States, 397 U.S. 742 (1970).  The Fourth Circuit agreed and expanded the application of Brady v. United States as a bar against involuntary pleas to include, not only “prosecutorial promises designed to elicit a guilt plea,” but also “affirmative government misrepresentation” that results in defendant’s misapprehension of the strength of the government’s case and, therefore, affects the defendant’s decision to accept the plea of guilt in order to secure leniency in sentencing.  The Fourth Circuit rejected the government’s good faith prosecution argument and recognized that both parties did not dispute the fact that the evidence presented to Fisher and his counsel during plea deliberations were obtained through a search warrant that was issued solely on the basis of intentional misrepresentation by law enforcement.  As a result, the Fourth Circuit maintained that Fisher was successful in proving that 1) “impermissible government conduct” resulted in the government securing a search warrant that led to collection of evidence against him, and 2) that there was “a reasonable probability” that, but for that misconduct, Fisher would not have plead guilty.  Lastly, the Fourth Circuit held that its decision to vacate Fisher’s plea was supported by the important interest of deterring police misconduct and ensuring public confidence in the judicial system.

Full Opinion

– John G. Tamasitis

United States v. Black, No. 11-5084

Decided: February 25, 2013

The Fourth Circuit Court of Appeals reversed and vacated the district court’s denial of a motion to suppress a firearm obtained during an improper Terry stop.  The Fourth Circuit ruled that the defendant was seized without particularized reasonable suspicion.

In June of 2010, two Charlotte-Mecklenburg officers were patrolling the Eastway Division of Charlotte.  They observed a man, later identified as Dior Troupe, sitting alone in a vehicle at a gas pump.  Troupe did not pump gas or leave the car, which the officers felt was indicative of a drug transaction.  Later, Troupe drove to a parking lot between two apartment complexes the officers knew were high crime areas.  Troupe walked up to a group of five men sitting in the parking lot.  Neither officer observed any illegal activity, but decided to call for backup and voluntarily contact the men.  After a total of six officers arrived, they approached the men.  Troupe indicated that he was carrying a firearm openly, which is generally legal in North Carolina.  The officers secured the firearm and ran Troupe’s identification.  While the officers approached the other men, Defendant Nathaniel Black offered his ID and stated he did not live in the apartment complexes and was just visiting friends.  The officers found Black to be “overly cooperative,” which they found unusual.  The officers questioned the other men, who were not cooperative.  The officers were looking for other firearms, due to a “one-plus” departmental rule.  This rule was a presumption that when there is one firearm, there will be more.  While questioning the other men, Black began to leave.  The officers told him he could not leave and tried to block his path, eventually grabbing his bicep and feeling an incredibly fast pulse rate.  Black began to run, and one officer tackled him.  The officers found a firearm and eventually learned that Black was a convicted felon. Black was charged under § 922(g)(1). Black moved to suppress the firearm, arguing that he was seized when told he could not leave, and the seizure was not supported by reasonable articulable suspicion.  The government argued that Black was not seized until the officers grabbed his bicep and certain indicia of suspiciousness supported the stop.  When his motion was denied, Black plead guilty and was sentenced to 180 months.

The Fourth Circuit first looked to when Black was seized for Fourth Amendment purposes.  In view of all the circumstances, Black was seized before he was told he could not leave.  This is due to factors such as the collective show of authority by the police, the fact that Troupe could not leave, officers were frisking other men indicating they would frisk others, and the officers had pinned Black’s ID to his uniform.  These factors lead to a decision that a reasonable person would not have felt free to leave.  Furthermore, all of Blacks interactions with the police before his bicep was grabbed were not consensual.  The Court then looked to Terry to see if the seizure was reasonable, which requires a reasonably and articulable suspicion particularized for the person in question. The Court held that the officers relied on indicia of suspiciousness that were not particular to Black being involved in criminal activity.  The officers tried to use reasonable suspicion as to the other men to Black.  The Court felt that some of the factors that led to reasonable suspicion Troupe was engaged in criminal activity was suspect as well.  Finally, Black’s cooperation and the “one plus” rule were not sufficient to establish a particular suspicion of Black engaging in criminal activity.  For these reasons, the Court vacated the ruling of the district court and remanded the case.

Full Opinion

-Jonathan M. Riddle

Clatterbuck v. City of Charlottesville, No. 12-1215

Decided: February 21, 2013

The issue in the case was whether a municipal ordinance, which prohibits individuals form soliciting immediate donations near two streets that run through the Downtown Mall in Charlottesville, Virginia, unconstitutionally restrict the free speech of individuals who regularly beg on the Downtown Mall.  The Fourth Circuit held that the district court erred by resolving this issue at the pleadings stage, and reversed and remanded for further proceedings.

The Court first finds that appellants have standing to bring the First Amendment challenge to the Ordinance.  The Supreme Court has held that solicitation of “charitable contributions” is protected speech under the First Amendment.  The appellants complaint generally alleges that Appellants regularly beg on the Downtown Mall and the Ordinance may constitute a cognizable injury to Appellants merely by interfering with or creating the “need to plan the substance and placement of” their speech.  The Court then finds that the Downtown Mall is a traditional public forum.  “Because Appellants seek to engage in protected speech in a traditional public forum, the government’s power to regulate that speech is limited, though not foreclosed.  The government may impose reasonable content-neutral time, place and manner restrictions that are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.”

The ordinance plainly prohibits solicitations that request immediate donations of things of value, but based on the record, the Court cannot determine the government’s reasons for enacting the Ordinance or assess the strength of its underlying concerns.  The Fourth Circuit also notes that the district court erred by impermissible reaching outside the pleadings by watching video archives at the pleadings stage in order to make findings of fact.

Full Opinion

-Jenna Hendricks

United States v. Yengel, No. 12-4317

Decided:  February 15, 2013

The Fourth Circuit Court of Appeals affirmed the district court’s decision to exclude evidence that was obtained during a warrantless search.  The government argued that the exigent circumstances exception applied to render the evidence admissible, but the Fourth Circuit disagreed noting that the officer’s behavior at the time of the search contradicted the idea that exigent circumstances existed.

On December 31, 2011, police responded to a 911 call regarding a domestic dispute at the home of Joseph Robert Yengel, Jr. (“Yengel”) between Yengel and his wife.  Shortly after arriving on the scene, Yengel was arrested and removed from the scene.  Sargeant Staton then interviewed Yengel’s wife and Yengel’s mother.  Staton learned that Yengel kept a large number of firearms and a “grenade” inside the house.  Staton also learned that Yengel’s young son was sleeping inside the house.  Staton asked where the “grenade” was, and Yengel’s wife collected a variety of firearms strewn about the master bedroom and asked Staton to remove them.  Staton again asked about the location of the grenade; Mrs. Yengel showed Staton a closet inside the guest bedroom that was locked with a combination keypad and thumbprint scanner.  Mrs. Yengel did not have the combination lock but told Staton the grenade was inside.  Mrs. Yengel gave Staton permission to kick open the door or do whatever he needed to get inside.  Staton was able to pry the door open with a screwdriver.  Once inside the closet, Staton identified military equipment including gun safes, camouflage, and other weapons.  Only after the entry into the closet, Staton ordered the evacuation of the house and surrounding residences.  He requested the assistance of an explosive ordnance disposal team.  Once the team arrived, they discovered, not a grenade, but a container of smokeless shotgun powder and a partially assembled explosive device attached to a kitchen timer.

Yengel was charged with possession of an unregistered firearm.  He moved to suppress the evidence gained from the warrantless search of the locked closet.  The district court granted his motion to suppress the evidence, and the Government appealed following an unsuccessful motion for reconsideration.  Searches without warrants are presumptively unconstitutional, but the touchstone for a warrantless search inquiry is “reasonableness.”  Therefore, there are certain exceptions that will render warrantless evidence admissible in court.  However, the court determined that there were no circumstances that would constitute an exigency sufficient to justify the warrantless search of private property.  The information available to the officer was limited to what Mrs. Yengel told him and this did not justify a reasonable belief that the grenade was live or could detonate at any moment.  Further, the location of the grenade diminished the scope of any possible emergency.  Finally, the officer did not evacuate the sleeping son or surrounding area until after the closet had been entered which provides evidence that the officers did not actually think there were emergent circumstances such to justify a warrantless entry.

Full Opinion

-Jennifer B. Routh

United States v. Holness, No. 11-4631

Decided: February 11, 2013

After a jury trial, Holness was convicted of interstate domestic violence and attempted witness intimidation. On appeal, Holness alleged that the district court erred in denying his motion to suppress certain evidence flowing from jail cell conversations Holness had with Stephen McGrath. Holness alleged that this evidence was obtained in deprivation of his Sixth Amendment right to the assistance of counsel.

McGrath was Holness’s cell mate when Holness was incarcerated in connection with a state murder charge. Holness contended that McGrath became an agent of the police as of August 31, 2009, when McGrath met with Sergeant Hall of the Maryland State Police homicide unit. Since Holness had retained the services of a public defender in connection with the state murder charge, he argued that his subsequent conversations with McGrath— which his lawyer was not present for—amounted to police interrogation in contravention of the Sixth Amendment. Subsequent to McGrath’s meeting with Hall, the state court charges were dismissed when the US Attorney charged Holness with interstate domestic violence, attempted witness intimidation, and two other counts that were ultimately dismissed. At that time, Holness moved to suppress all statements he made to McGrath and any evidence obtained as a result of those statements.

The Court of Appeals concluded that, since there was no involvement by the federal government in advance of the August 31, 2009 meeting between McGrath and Hall, no actions imputable to the state deprived Holness of his Sixth Amendment right to counsel with respect to the federal charges of which he was convicted. However, the Court went on to address whether those actions contravened Holness’s Fifth Amendment rights, noting that “although the Sixth Amendment right to counsel is offense-specific, the similar right derived from the Fifth Amendment is not.”

The Court presumed that the relevant evidence was obtained in contravention of the Fifth Amendment, but found that the evidence of Holness’s guilt went “far beyond mere sufficiency,” such that the lower court’s judgment could not have been substantially swayed by the improperly obtained evidence. Thus, the Court held that, under the circumstances of the case, any Fifth Amendment error was harmless beyond a reasonable doubt.

In summary, the Court of Appeals found that the underlying facts failed to sustain Holness’s Sixth Amendment theory, but noted that the facts indicate a potential violation of Holness’s Fifth Amendment privilege against self-incrimination and right to counsel. However, the Court held that remand to further develop the record was unnecessary since any Fifth Amendment error was harmless beyond a reasonable doubt. Thus, the Court affirmed Holness’s convictions.

Full Opinion

– Kassandra Moore

United States v. Runyon, No. 09-11

Decided: February 25, 2013

The Fourth Circuit Court of Appeals affirmed the conviction of David Anthony Runyon for conspiracy to commit murder-for-hire among other charges including carjacking resulting in death and murder with a firearm in relation to a crime of violence.  Runyon received a capital sentence.

David Runyon was hired by Catherina Voss (“Cat”) and Michael Draven to murder Cory Voss, Cat’s husband. On April 20, 2007 Cat opened a bank account and sent Voss to an ATM to withdraw cash from the account. A surveillance camera at the ATM showed an individual entering Voss’s truck while he was standing at the ATM. The next morning Voss was found dead in his truck in a parking lot near the bank where the ATM was located.

Runyon appealed both his conviction and his sentences.  Runyon attempted to claim that the murder for hire statutes under which he was convicted were unconstitutional.  The court held that Congress did not exceed its power under the Commerce Clause in enacting the statute.  Runyon next challenged the “nonstatutory aggravating factors charged by the prosecution and found by the jury” during his sentencing.  Runyon challenged the use of an interrogation video that showed him being asked questions about his race and religion. The court found that it was error to allow the jury to hear the remarks made to Runyon. After making this determination, the court stated that it would take the most defendant-favorable standard in order to determine whether or not this error required Runyon’s sentences to be reversed. The court ultimately found that admitting the video into evidence did not contribute to the verdict obtained. Runyon also challenged evidence regarding victim-impact, his personal training and experience, and his physical abuse towards women.  The court found that the admittance of this evidence was constitutional, and the district court did not err in admitting it.

Judge Niemeyer concurred in the opinion of the court and found that the district court did not err in admitting the video tape of Runyon into evidence.  Judge Niemeyer found the video tape to be relevant, voluntarily given by Runyon after being read Miranda rights, and showed Runyon’s lack of remorse.

Full Opinion

-Samantha James

Center for Individual Freedom, Inc. v. Tennant, No. 11-1952 and 11-1993

Decided: January 18, 2013

Center for Individual Freedom (CFIF) and West Virginians for Life (WVFL), both organizations that engage in election-related speech, and a West Virginian resident, Zane Lawhorn, who wants to receive WVFL’s communications, brought suit against West Virginia’s secretary of state, members of the West Virginia State Election Commission, and a class of West Virginia’s prosecuting attorneys. The suit alleged that West Virginia’s campaign finance statutes were constitutionally impermissible. The district court struck down some provisions, but upheld others. On appeal, the court affirmed in part, reversed in part, and remanded for further proceedings.

The appellate court first considered WVFL and Lawhorn’s contention that the district court erred in concluding that W.Va. Code § 3-8-1a(12)(C), which defines “expressly advocating” as “any communication that . . . [i]s susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” is unconstitutionally vague. The court found that the holding in The Real Truth About Abortion, Inc. v. FEC—specifying that “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate—was controlling and thus held that subsection (C) of the statute was not unconstitutionally vague. The court also found that the subsection was not overbroad. As such, the court reversed the district court’s decision with respect to its conclusion that W.Va. Code § 3-8-1a(12)(C) is unconstitutional.

The court then considered CFIF’s contention that the district court erred in holding that the inclusion of periodicals in its definition of “electioneering communication” rendered the definition overbroad, and its decision to sever the statute’s reference to materials “published in any newspaper, magazine or other periodical.” The court agreed with CFIF’s argument, that even if the government could demonstrate a sufficiently important interest, the “legislature’s failure to empirically justify the statute’s application to periodicals renders it overbroad and prevents it from bearing a substantial relation to West Virginia’s stated interests.” As such, the court affirmed the district court’s decision to sever the statute’s reference to materials “published in any newspaper, magazine or other periodical.”

Next, the court addressed CFIF’s argument that the district court erred in its decisions regarding three exemptions to the “electioneering communication” definition. Specifically, the district court: (1) upheld the “grassroots lobbying” exemption, (2) declined to address the merits of CFIF’s challenge to the “bona fide news account” exemption, and (3) upheld a provision exempting communications by § 501(c)(3) organizations. The appellate court affirmed the district court’s decision to uphold the grassroots lobbying exemption and its decision to decline to consider the merits of CFIF’s challenge to the bone fide news account exemption, but reversed its decision with respect to its choice to uphold the § 501(c)(3) exemption.

The court then reviewed the district court’s conclusion that the reporting requirement for electioneering communications was ambiguous as written, and its decision to restrict the reporting requirement to “individuals who respond to a solicitation for electioneering communications or earmark their contributions for such use.” The court found that McConnell v. FEC controls and necessitates reversal of the lower court’s conclusion that the electioneering communication reporting requirement is unconstitutionally vague and its application of a limiting construction.

Finally, the court addressed WVFL and Lawhorn’s contention that the district court should have vacated two earlier injunctions as moot rather than barring prosecutions for violations that occurred when the injunctions were in effect. The appellate court found no abuse of discretion in the lower court’s decision to dissolve the injunctions at issue rather than vacate them as moot.

In summary, the appellate court affirmed the district court’s decisions to: (1) sever the statute’s reference to materials “published in any newspaper, magazine or other periodical,” (2) uphold the grassroots lobbying exemption, (3) decline to consider the merits of CFIF’s challenge to the bone fide news account exemption, and (4) prohibit prosecutions for violations that occurred while the earlier injunctions were in effect rather than vacating the injunctions as moot. The appellate court reversed the district court’s decision with respect to: (1) its conclusion that W.Va. Code § 3-8-1a(12)(C) is unconstitutionally vague, (2) its choice to uphold the § 501(c)(3) exemption, and (3) its conclusion that the electioneering communication reporting requirement is unconstitutionally vague such that a limiting construction must be applied.

Full Opinion

– Kassandra Moore

United States v. Bumpers, No. 11-4689

Decided:  January 16, 2013

Defendant Irvin Bumpers appealed the district court’s denial of his pre-trial motion to suppress the firearm that served as the basis of his conviction of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).  Bumpers argued that the firearm and ammunition were taken as a result of an unlawful seizure.  The Fourth Circuit dismissed Bumpers’ argument and upheld the district court judge’s ruling, finding that the police officer’s retrieval of these goods was the result of a lawful stop and arrest.  The court further articulated its belief that appellate courts should “uphold[] a district court’s Terry ruling when it is objectively reasonable in light of the record … [in order to] best achieve in the aggregate the very equipoise between individual liberty and public safety that the Fourth Amendment commands.”

The facts revealed that Bumpers was arrested in a high crime area when a police officer, who was patrolling the area, noticed Bumpers acting suspiciously and suspected that Bumpers and a companion were trespassing upon property.  After the officer stopped Bumpers to question him, the officer’s search of computer records revealed an outstanding warrant for Bumpers.  Consequently, the officer arrested Bumpers and conducted a search incident to this arrest which revealed that Bumpers was carrying the firearm and ammunition at issue on appeal.

In its analysis of this case, the majority focused on numerous factors surrounding the officer’s arrest of Bumpers.  After stating that “[t]he touchstone of the Fourth Amendment inquiry is one of simple reasonableness” and citing to the Supreme Court’s decision regarding police investigatory stops in Terry v. Ohio, the court concluded that in cases involving police stops an individual’s “liberty interest” must be balanced with the “weighty interest on the other side of the balance:  the community’s interest in basic public safety.”  The court then defended its decision to defer to the trial judge’s factual findings and inferences regarding the circumstances surrounding Bumpers’ arrest, stating that “[t]e most precise instrument that the judiciary possesses for ensuring the proper balance between the interests that undergird the Fourth Amendment is the on-the-ground assessment of district courts.”  Ultimately, the court was convinced that the trial judge rightfully considered the totality of the factors surrounding the officer’s stop and concluded that the district court correctly determined that the officer had the reasonable suspicion necessary to conduct the stop in question.  Therefore, the court upheld the district court’s denial of Bumpers’ motion to suppress.

Full Opinion

– Allison Hite

D.L. v. Baltimore City Board of School Commissioners, No. 11-2041

Decided: January 16, 2013

In this case, the parents of an eighth grade student suffering from Attention Deficit Hyperactivity Disorder (“ADHD”) brought suit against the Baltimore City Board of School Commissioner (“BCBSC”) in federal district court.  The parents alleged that, due to his learning disorder, the student was qualified for special education services under Section 504 of the federal Rehabilitation Act of 1973, 29 U.S.C. § 794.  However, because the student was enrolled in a private religious school, the BCBSC had denied the student’s request to receive these education services.  The BCBSC had informed the parents that their child would have to enroll in a Maryland public school in order to be eligible for the Section 504 assistance.  The district court granted the BCBSC’s motion for summary judgment, and the parents appealed to the Fourth Circuit.

On appeal, the Fourth Circuit reviewed Section 504 and the regulations promulgated under it which require public schools to provide a Free Appropriate Public Education (“FAPE”) to “‘each qualified handicapped person who is in the recipient’s jurisdiction.’”  A FAPE requires the “‘provision of regular or special education and related aids and services that…are designed to meet individual educational needs of handicapped persons….’”  However, under the law, a FAPE does not require that the public school system “pay for a child’s education in a private school.”

After considering the relevant administrative guidance, statutory purposes, legal precedent, and public policy, the court concluded that nonpublic school students were not entitled to receive Section 504 services.  Thus, the court held that the BCBSC’s policy to deny this special assistance to private school students was not invalid under the statute.  According to the court, the public school district was required only to make these special services available to students enrolled in public school.  The court also held that this section of the Rehabilitation Act was not an unconstitutional burden on the parents’ right to direct the education of their child.  Although the BCBSC’s policy would make it more expensive for the parents to provide their child with a private religious education, the parents “retain[ed] full discretion over which school D.L. attends.”

Full Opinion

-John C. Bruton, III

United States v. Ford, No. 11-5193

Decided: January 4, 2013

A jury found Harold Ford guilty of being a felon in possession of a firearm. Based on a post-trial change in law effected by United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), the court of appeals reversed and remanded the case. On remand, Ford was convicted again. He appealed that conviction on double jeopardy grounds. The court found no error and affirmed the conviction.

The Double Jeopardy Clause prohibits the retrying of a defendant whose conviction is reversed on appeal solely for lack of sufficient evidence to sustain the jury verdict, but does not prohibit retrying a defendant whose first conviction was set aside because of an error in the proceedings leading to the conviction. In line with precedent in this and other circuits, the court noted that where a reviewing court determines that the evidence presented at trial is rendered insufficient only by a post-trial change in law, it is analogous to one for procedural error and thus does not bar retrial.

As such, the court found no error in the retrial of Ford and affirmed the conviction.

Full Opinion

– Kassandra Moore

United States v. Watson, No. 11-4371

Decided: January 2, 2013

The Fourth Circuit Court of Appeals reversed the district court’s decision to deny a motion to suppress defendant’s statement.  The Court held that defendant’s three-hour detention violated his Fourth Amendment Rights, vacated the judgment, and remanded the case.

Prentiss Watson was convicted of possession of a firearm by a felon and possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g).  The convictions stemmed from a statement he made while detained by Baltimore police officers.  The officers were observing drug activity in a building in which Watson both worked and lived.  After arresting a target for drug related activities and not finding a firearm, the officers decided to search the building.  At the time, Watson and his employer were working at the convenience store on the first floor of the building. According to procedures, the officers checked the building for armed suspects and detained all individuals in the building, and put them in a central location.  While waiting for a search warrant, the officers detained Watson for three-hours.  The officers informed Watson of his Miranda rights before detaining him.  The officers had no information linking Watson to any crime.  Watson was never told that he was free to leave, and during the three-hour detention, he was asked no questions.  After securing the search warrant, an officer found a shotgun in the back room of the second floor.  After informing him of his Miranda rights, the officer asked Watson about the gun.  He replied that he lived in the front room of the second floor and did not know about the shotgun.  The officer returned to the front room and found a Ziploc bag with a revolver and various ammunition.  When asked about it, Watson replied, “[T]hat old thing, it doesn’t even work.”  At trial, Watson filed a motion to suppress his statement on the grounds that he was subjected to an unlawful detention without probable cause, and that his statement was the product of an illegal arrest.  The district court denied the motion.  Watson was convicted and sentenced to consecutive terms of 31 months.  This appeal followed.

The Fourth Circuit first determined that Watson was seized for purposes of the Fourth Amendment because a reasonable person would not have felt free to leave.  Because the seizure was unsupported by probable cause, the Court employed a balancing test of the legitimate government (public) interests and personal privacy interests to determine reasonableness.  The Court held that the intrusion into Watson’s privacy interests outweighed public concerns, mainly protecting officer safety and preventing the destruction of evidence.  Precedent relied on by the government which allowed such action were distinguishable because here, unlike other cases, the officers did not already have a warrant and could not tie Watson to any criminal activity to justify detention for safety reasons.  For these reasons, Watson’s detention was an illegal custodial arrest.  Additionally, the Court stated that there was no break in the casual chain between the illegal seizure and the statement made by Watson.  Despite the Miranda warnings given and lack of flagrant police misconduct, the Court held that no intervening circumstances occurred which sufficiently attenuate the illegal arrest from Watson’s statement.  Finally, the erroneous admission of Watson’s statement was not harmless error because the evidence presented by the government to prove Watson knowingly owned a firearm included Watson’s statement and the Court was unable to conclude that a reasonable fact-finder would have found Watson guilty beyond a reasonable doubt without the statement.

Full Opinion

–Jonathan Riddle

U.S. v. Pruess, No. 11-5127

Decided: December 31, 2012

The Fourth Circuit held that the felon-in-possession prohibition for felons in 18 U.S.C. § 922(g)(1) does not violate the Constitution, even for non-violent felons such as Pruess.

Pruess has been convicted of numerous firearm related offenses.  In 1994, Pruess was charged with twelve firearms offenses, and eventually plead guilty to one charge for which he received twelve months imprisonment.  Soon after his release, Pruess returned to arms dealing despite his status as a convicted felon.  Pruess was then caught selling weapons, including stolen weapons, to undercover agents and a cooperating witness.  Pruess pled guilty to eighteen counts of firearm violations.  In 1999, shortly before sentencing, Pruess ordered a pistol online using an altered firearms license.  After his release from prison, Pruess sought to purchase ammunition, grenades, and flares from a confidential informant, knowing they were likely stolen.  Pruess entered a conditional guilty plea but reserved the right to appeal.

Pruess argued that the felon-in-possession statute as to non-violent felons violated the Second and Fifth Amendments of the Constitution.  The Second Amendment “confers a right to keep and bear arms typically possessed by law-abiding citizens for lawful purposes.”  There are two steps to a Second Amendment challenge.  First, one must determine whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.  If not, there is no violation.  If so, the second step of the framework is to determine whether the law meets an appropriate form of “means-end scrutiny.”  In this case, Pruess does not meet the first step.  Pruess is not protected by the Second Amendment because his twenty prior convictions, repeated violations, and knowledge that the ammunition was likely stolen shows that Pruess is not a law-abiding responsible citizen.  Furthermore, Pruess was not acquiring the ammunition for “defense of hearth and home.”  Pruess’ second argument is that §922(g)(1), as applied, violates the Fifth Amendment Equal Protection guarantee in that it denies him an alleged fundamental right to bear arms.  As Pruess was a felon-in-possession, he had no right to bear arms and thus the court applies rational basis.  “There is a rational relation between the felon-in-possession prohibition as applied to a collector of dangerous, often stolen weapons and explosives who has repeatedly and fragrantly ignored the laws of the United States, like Pruess, and the legitimate government interest in public safety.”  Therefore, Pruess’ equal protection challenge also fails.

Full Opinion

-Jenna Hendricks

United States v. Lawing, No. 11-4896

Decided on: December 31, 2012

Lawing was convicted of possession of ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Lawing argued that the district court committed reversible error by denying his motions to suppress evidence and to dismiss the charges or, in the alternative, that his sentence was procedurally unreasonable. The Fourth Circuit held that the district court did not commit any reversible error and that Lawing’s sentence was reasonable.

A confidential informant told police that Lawing dealt crack cocaine, leading to a police stop that revealed a sawed-off shotgun and ammunition. Lawing moved to suppress the evidence seized during the stop, but the district court denied the motion on the basis that the government established compliance with the Fourth and Fourteenth Amendments. At the close of the government’s case, Lawing moved to dismiss the charges based on insufficiency of the evidence, but the district court denied the motion. The jury ultimately returned a verdict on one of three counts—possession of ammunition by a convicted felon in violation of §§ 922(g)(1) and 924(a)(2). The Presentence Report calculated Lawing’s base offense level to be 26 with a criminal history category of IV, for a Guidelines range of 92 to 105 months imprisonment. Lawing objected to the calculation of his base offense level, but the district court adopted the PSR’s recommendations and sentenced Lawing to 100 months imprisonment.

On appeal, Lawing first argued that the district court erred by denying his motion to suppress and his motions to dismiss the charges. The Fourth Circuit held that the district court did not err in denying Lawing’s motion to suppress because the stop and search of the car driven by Lawing comported with the requirements of the Fourth and Fourteenth Amendments: the police had reasonable suspicion to stop the car, officers’ possession of Lawing’s cell phone did not amount to a search or an unjustified seizure because the sole purpose of possession was to confirm Lawing’s identify, and the police were warranted in believing that contraband or evidence of a crime would be found in the vehicle. As to Lawing’s motions to dismiss the charges, the court held that the district court properly denied the motions “because the government put forth sufficient evidence upon which the jury could conclude that Lawing constructively possessed the ammunition,” which is enough to find a violation of § 932(g)(1). Finally, Lawing argued his sentence was procedurally unreasonable because the district court abused its discretion in finding that Lawing possessed a sawed-off shotgun and, as such, the district court used an incorrect base offense level in calculating his sentence. The district court’s factual determination is reviewed for clear error. In this case, the district court did not commit clear error because the evidence presented at trial established Lawing’s constructive possession of the firearm. The Fourth Circuit concluded that the district court did not abuse its discretion and affirmed the judgment.

Full Opinion

-Michelle Theret

Lane v. Holder, No. 11-1847

Decided: December 31, 2012

The Fourth Circuit Court of Appeals affirmed the district court’s dismissal of the plaintiff’s complaint based on a lack of standing.  The plaintiffs are individuals and an organization called the Second Amendment Foundation (SAF) who filed a pre-enforcement challenge to the constitutionality of a federal statute restricting interstate transfers of handguns, 18 U.S.C. § 922(b)(3); a federal regulation implementing that statute; and a Virginia law prohibiting Virginia firearms dealers from selling handguns to non-residents of Virginia.  The district court and the Fourth Circuit concluded that the injuries complained of by the plaintiffs are caused by third parties rather than the application of the laws and, therefore, they lack standing.

The relevant statute allows that a buyer may purchase a handgun from an out-of-state source, but that source must be a federal firearms licensee (FFL), and the buyer must arrange for the handgun to be delivered to an in-state FFL, from whom the buyer must retrieve the gun.  FFLs may also sell or deliver a rifle or shotgun to an out-of-state resident if the transferee meets in person with the FFL in the state where she wishes to buy the firearm and if the transfer complies with the laws of the transferee’s and transferor’s states.  Virginia’s statute also prohibits the direct sale or transfer of a handgun to a non-resident.  Lane and the Wellings are residents of Washington, D.C. who wish to acquire handguns from other states.  SAF is a non-profit organization whose purpose includes promoting the exercise of the right to keep and bear arms.  SAF contends that the challenged laws have caused it to spend resources in response.

The individual plaintiffs assert that the laws result in a restriction on the range of retailers available to consumers of constitutionally-protected articles.  However, the Fourth Circuit held that they did not have standing because the laws do not burden the plaintiffs directly and do not actually prevent them from acquiring the handguns they desire.  Further, even if the plaintiffs could allege an injury in fact, it must be traceable to the defendant’s conduct.  Here, the injury the plaintiffs complain of is caused by decisions and actions of third parties.  Finally, the Fourth Circuit held that SAF did not have standing because the injury complained of results from the organization’s own budgetary choices, not any actions taken by the defendant.

Full Opinion

-Jennifer B. Routh

United States v. Carpio-Leon, No. 11-5063

Decided:  December 14, 2012

Defendant Nicolas Carpio-Leon, an illegal alien “indicted for possessing firearms while being ‘illegally or unlawfully in the United States,’” appealed his guilty plea based on his contention that 18 U.S.C. § 922(g)(5), which prohibits illegal aliens from possessing firearms, violated his rights under the Second and Fifth Amendments to the U.S. Constitution.  The Fourth Circuit ultimately held § 922(g)(5) to be constitutional and affirmed the district court’s judgment.

On appeal, Carpio-Leon made two arguments.  First, he contended “that possession of firearms typically used for self-defense in one’s home is protected by the Second Amendment, even when such possession is by an illegal alien.”  After recognizing that it had “not had occasion to address a Second Amendment challenge to 18 U.S.C. § 922(g)(5),” the court noted that three other circuits “have upheld the provision in the face of a Second Amendment challenge.”  The court further noted that it had “found no court of appeals decision that has found [the provision] unconstitutional.”  The court then engaged in a Second Amendment analysis prescribed by Heller and applied the two-step approach set forth in its 2010 decision in United States v. Chester.

Applying the first step, the court looked to determine “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee” by deciding “whether the scope of the Second Amendment includes the protection of aliens who are illegally in this country.”  The court focused on the text of the Second Amendment, specifically the language protecting the rights of “the people,” but it found that the Supreme Court’s decision in Heller provided little help in determining “whether ‘the people’ includes illegal aliens.”  Despite the lack of clear precedent on this matter, the court found that “Heller concludes … that the core right historically protected by the Second Amendment is the right of self-defense by ‘‘law-abiding, responsible citizens,’’” and therefore it determined that it did not need to determine the scope of “the people” under the Second Amendment.  Finally, the court employed a historical analysis and ultimately held “that illegal aliens do not fall in the class of persons who are classified as law-abiding members of the political community for the purpose of defining the Second Amendment’s scope.”  The court was careful to limit its holding by making it clear that it did “not hold that any person committing any crime automatically loses the protection of the Second Amendment.”  Based on this holding, the court determined that it did not need to proceed to the second step provided in Chester because under the first step it “conclude[d] that Carpio-Leon’s constitutional challenge under the Second Amendment must fail.”

Next, the court considered Carpio-Leon’s second argument on appeal that § 922(g)(5) “violate[d] his right to equal protection under the Due Process Clause of the Fifth Amendment.”  Carpio-Leon based this argument “on his claim that the right to bear arms in one’s home for protection is a fundamental constitutional right” such that the court should apply strict scrutiny in evaluating § 922(g)(5).  The government, on the other hand, argued that this statute “is subject to a rational basis review because illegal aliens do not have a fundamental right to bear arms.”  The court agreed with the government, finding that “no fundamental constitutional right is at stake, [and] the appropriate standard of review is the rational-basis review.”  Under this analysis, the court determined that Carpio-Leon “[could] not show that there is no rational relationship between prohibiting illegal aliens from bearing firearms and the legitimate government goal of public safety” and concluded that § 922(g)(5) “survives rational scrutiny and is, therefore, also constitutional under the Fifth Amendment.”

Full Opinion

– Allison Hite

Elmore v. Ozmint, No. 07-14

Decided: Nov. 22, 2011

Edward Lee Elmore filed a petition pursuant to 28 U.S.C. § 2254, seeking habeas corpus relief after the South Carolina supreme court denied his state postconviction relief (PCR) application.  Though Elmore’s petition asserted various claims, the Fourth Circuit addressed whether Elmore was entitled to habeas relief and found that Elmore’s trial attorneys provided ineffective assistance of counsel in violation of the Sixth Amendment, and thus awarded habeas relief.

Elmore was twice convicted of murder and sentenced to death, but the Supreme Court ultimately vacated the judgment and remanded for further consideration. During a subsequent trial limited to sentencing, Elmore again received a death sentence, which the state supreme court affirmed. The Supreme Court denied certiorari, prompting Elmore to file a state PCR application that was denied in its entirety. While Elmore’s appeal was pending, the prosecution revealed that it had found previously “missing” physical evidence; the evidence included “Item T,” an unmatched Caucasian hair found on the victim’s body, which could potentially exculpate the African American defendant. The state supreme court remanded for further proceedings, but the state PCR court denied relief. In 2005, Elmore filed a § 2254 petition asserting various claims, including an unexhausted mental retardation claim pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). The district court denied relief on the basis that the state PCR court’s conclusion that the suppression of the missing physical evidence by the prosecution during the 1984 trial “was immaterial to the … verdict.” Elmore appealed to the Fourth Circuit, which stayed proceedings pending the exhaustion of the mental retardation claim. In 2010, the state PCR court held that Elmore was mentally retarded, and thus could not be executed pursuant to Atkins. The prosecution did not appeal this finding and the court converted Elmore’s death sentence to a term of life imprisonment. Resolution of the Atkins issue dispensed with several of Elmore’s claims, but the Fourth Circuit still faced issues regarding Elmore’s entitlement to habeas relief.

The Fourth Circuit reviewed de novo the district court’s denial of habeas relief based only on the information contained in the state court record, pursuant to Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). Furthermore, AEDPA required the Fourth Circuit to assess whether the state PCR court’s decisions were based on “an objectively unreasonable factual determination in view of the evidence before it, bearing in mind that factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.”  Baum v. Rushton, 572 F.3d 198, 210 (4th Cir. 2009).

Despite giving deference to the state court’s findings, the Fourth Circuit held that the state PCR court incorrectly applied and acted contrary to the Strickland standard for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). Strickland imposes a duty to conduct an investigation into potential legal choices, measured against the investigation which a reasonable attorney would make. The state PCR court ruled that the attorneys’ “faith in the integrity and infallibility of the police” justified their failure to investigate the prosecution’s forensic evidence during the 1984 trial, and thus deemed the attorneys’ conduct reasonable. The Fourth Circuit, in contrast, found that the defense attorneys’ failure to conduct a reasonable investigation into the forensic evidence—an integral part of the prosecution’s case—constituted patent ineffective assistance of counsel. Furthermore, Strickland imposes a “contemporary assessment rule,” as acknowledged by the state PCR court, which prohibits the use of hindsight in assessing the reasonableness of an attorney’s performance. The Fourth Circuit emphasized that the state PCR court improperly relied on facts developed after the 1982 and 1984 trials to retroactively justify defense counsel’s performance—specifically, the decision against investigating the forensic evidence. Because of the egregious nature of defense counsel’s failure to investigate, “no amount of deference could compel any fair conclusion other than that Elmore has satisfied his burden under Strickland’s performance prong.”

As to the prejudice prong, the state PCR court stated that “a reviewing court…must look only at whether the error alleged resulted in a proceeding which was ‘fundamentally unfair or unreliable.’” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). The Supreme Court previously rejected this interpretation and instead emphasized that courts must “‘consider the totality of the evidence before the … jury’ in determining whether there was a reasonable probability that, but for counsel’s errors, a different verdict would have been returned.” Strickland, 466 U.S. at 695. Thus, the state PCR court should have considered all of the evidence presented during trial and the PCR proceedings and impermissibly departed from the Strickland standard in considering “less than the totality of the evidence” and by “unduly minimizing its import and evaluating it piecemeal.” The Fourth Circuit proceeded to apply the totality-of-the-evidence standard and concluded that “there is a reasonable probability…that, but for his lawyers’ failure to investigate the State’s forensic evidence, Elmore would have been acquitted” in 1984, thus satisfying Strickland’s prejudice prong. Accordingly, the Fourth Circuit reversed the district court’s judgment and remanded to award Elmore a writ of habeas corpus.

Circuit Judge Wilkinson dissented on the basis that the majority’s decision “cannot be squared with the deferential standards required under AEDPA, the facts of [the] case, or Supreme Court precedent.” Judge Wilkinson stated that, “whatever defense counsel’s alleged failings, the outcome of Elmore’s 1984 trial would almost certainly have been the same,” thus Elmore failed to satisfy Strickland’s prejudice prong and counsel’s performance did not violate the Sixth Amendment. In arguing that the majority’s decision went too far, Judge Wilkinson emphasized that “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011). Furthermore, appellate judges are in “the worst possible position” to evaluate the credibility of the witnesses presented during trial and the PCR proceedings, thus the Fourth Circuit should be extremely deferential to state court determination. Judge Wilkinson also argues a policy point in that allowing Elmore to go free is a disservice to the victim of the heinous murder, because the evidence so overwhelmingly suggests Elmore’s guilt.

Full Opinion

-Michelle Theret

United States v. Brown, No. 11-5048

Decided:  December 6, 2012

In this case, Defendant Daniel J. Brown appealed his conviction and sentence in the Western District of Virginia for a child pornography offense.  Specifically, Brown argued that the district court erred in denying his motion to suppress evidence that had been recovered from his personal laptop computer outside of his place of business.  Additionally, Brown argued that the district court erred in vacating and dismissing the lesser-included offense of possessing child pornography instead of the greater-included offense of receiving child pornography.  The Fourth Circuit rejected both of Brown’s arguments on appeal and affirmed the district court’s judgment.

Brown’s first argument on appeal stemmed from the fact that the search warrant that the police acted upon did not authorize their seizure of his personal computer but only authorized them to search the place of his employment.  Because the government did not contest this fact, the court “proceed[ed] on the proposition that the seizure of Brown’s laptop was warrantless.”  However, after acknowledging the Fourth Amendment’s protection of citizens “against unreasonable searches and seizures,” the court noted that “there are ‘a few specifically established and well-delineated exceptions’ to the search warrant requirement.”  The court found the “exigent circumstances” exception to apply in this case based on its finding that the search warrant established that there was probable cause to search Brown’s place of employment.  Therefore, given the establishment of probable cause, the court found that the police’s subsequent inquiries about Brown’s laptop computer were lawful and proper.

Furthermore, the court found that exigent circumstances existed based on the police’s need to prevent the laptop and its contents from being damaged or destroyed.  The court supported its conclusion that the police’s seizure of Brown’s laptop was proper using two cases from the Sixth and Eleventh Circuits which determined that the Fourth Amendment was not violated when a warrantless seizure was necessary to prevent the damage or disappearance of evidence.

The court also rejected Brown’s second argument that the district court erred in denying his motion to dismiss and in sentencing him solely based on the greater-included offense of receiving child pornography.  The court determined that the district court “did not abuse its discretion by denying Brown’s motion and striking the lesser-included offense of possession of child pornography.”  Instead, the court found that “the court properly adhered to a long line of authorities directing vacation of the conviction that carries the more lenient penalty when a defendant is convicted of both a greater and a lesser included offense” and cited to several precedent cases from the Fourth and other circuits.

Full Opinion

– Allison Hite

United States v. Vaughan, No. 11-4863

Decided: November 29, 2012

The Fourth Circuit affirmed the district court’s denial of a motion to suppress evidence obtained from a dog sniff search of a vehicle.  The court concluded reasonable suspicion of criminal activity existed at the moment the law enforcement officer, Homiak, determined that the driver and passenger’s explanations of their travels conflicted, between six and nine minutes after the stop.  The existence of reasonable suspicion allowed Homiak to briefly extend the stop to confirm or dispel his suspicion through the canine sweep of the vehicle.

Homiak initiated a traffic stop when he clocked the rental vehicle going 79 miles per hour in a 70 miles per hour zone.  The driver Vaughan appeared normal, but Scott, the passenger, appeared nervous.  Homiak noticed four phones in the center console, two of which were prepaid phones that are often used for drug transactions, as no personal information needs to be provided to obtain the phones.  Furthermore, Vaughan modified his explanation for his travels, and Vaughan and Scott’s travel explanations conflicted.

The totality of the circumstances was sufficient to generate reasonable suspicion of criminal activity “no later than the moment Scott volunteered an explanation for his travels that conflicted with Vaughan’s.”  Therefore, Homiak was justified in briefly extending the traffic stop.  The delay was reasonable, as it only took sixteen minutes from the beginning of the traffic stop for the drug dog to arrive, sweep the vehicle, and alert to the presence of drugs.

Full Opinion

-Jenna Hendricks

Martin v. Lloyd, No. 11-1405

Decided: November 21, 2012

Jimmy Martin and Lucky Strike, LLC (appellants) brought an action in the district court to enjoin the enforcement of S.C. Code Ann. §§ 12-21-2710 and 12-21-2712, which prohibit certain “device[s] pertaining to games of chance.” They then appealed the district court’s grant of summary judgment, advancing two theories: that §2710 is void for vagueness and thus violates the Fourteenth Amendment, and that, under the holding of Ex Parte Young, § 2710 is violative of their right to equal protection under the Fourteenth Amendment. The appellate court rejected these arguments and upheld the district court’s ruling.

The court first addressed the appellants’ due process argument, noting that a statute is unconstitutionally vague under the Due Process Clause if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Since gambling does not implicate a constitutionally protected right, the court framed the inquiry as whether § 2710 is invalid “in all of its applications,” focusing specifically on the statute’s blanket prohibition against possessing any “device pertaining to games of chances of whatever name or kind.” In light of several South Carolina Supreme Court cases that have provided clarity to this particular phrase, the court found that the use of the term “games of chance” has a plainly legitimate sweep and more than conceivable application such that it is not unconstitutionally vague. The court also noted that inconsistent enforcement and judicial rulings on the statute may indicate a difference of opinion amongst judges or law enforcement, but does not make the statute unconstitutionally vague.

The court then addressed the appellants’ argument that § 2710 violates the Equal Protection Clause because they are forced to risk criminal prosecution, imprisonment, fines, and forfeiture to gain a determination as to whether a proposed game is legal under the statute. The appellants urged the application of the holding in Ex Parte Young that a state cannot force a party to risk severe penalties to obtain a judicial determination if that determination involves a complicated or technical question of fact. The court found that Young was not applicable because § 2710’s scope and validity is sufficiently clear; determining whether the statute applies to a particular game does not involve the kind of intensive investigation and technical analysis implicated in Young. Furthermore, the court found that the risks are too attenuated for proper application of Young since the historical record of enforcement of § 2710 reveals that the appellants would not face the type of dire criminal prosecution involved in Young if they put a game into operation that turned out to be illegal.

In summary, the court affirmed the judgment of the lower court finding that § 2710 is neither unconstitutionally vague nor violative of the Equal Protection Clause.

Full Opinion

– Kassandra Moore

Ancient Coin Collector’s Guild v. U.S. Customs and Border Protection, No. 11-2012

Decided: October 22, 2012

The Fourth Circuit Court of Appeals affirmed the district court’s ruling that the U.S. Customs and Border Protection (“CBP”) did not act outside its authority under the Convention on Cultural Property Implementation Act (“CPIA”) by seizing various Chinese and Cypriot coins that were under import restrictions.  Furthermore, the government action under the CPIA did not violate the Administrative Procedures Act (“APA”), First, or Fifth Amendments.

The CPIA gives the government a scheme to enforce the U.N. Convention on Cultural Property.  The Convention and the CPIA seek to protect cultural property of member States, defined as articles of importance to archaeology, history, art and literature.  If a member State makes a request, the State Department and Customs and Border Protection refer the request to a panel of experts to determine what import restrictions are available and what items should have the restrictions.  From there, if the panel decides import restrictions are necessary, the United States Information Agency (“USIA”) can take action by putting in place regulations that will restrict the import of cultural property.  The CPIA requires notice in the Federal Register that informs importers of the restrictions and a detailed list of the articles restricted.  The CPIA also gives the right to a forfeiture proceeding and sets out narrow exceptions around import restrictions.  In this case, both China and Cyprus requested import restrictions on various cultural articles.  The USIA enforced import restrictions on numerous articles, including coins.  The government followed all notice provisions in the CPIA.  The Ancient Coin Collector’s Guild attempted to import certain Cypriot and Chinese coins, which were seized by Customs and Border Protection.  Before the government started forfeiture proceedings, the Guild brought an action challenging the seizure on the grounds the government acted ultra vires, violated the APA, and violated the First and Fifth Amendments.  The district court found that the government acted within its power under the CPIA, that the State department, USIA, and CBP were exempt from the APA as an extension of the State department and not an “agency” under the APA, that the First Amendment was not violated because the action fell under the United States v. O’ Brien exception, and the Fifth Amendment was not violated by a delay in bringing forfeiture proceedings.

The Fourth Circuit agreed, stating that the government’s import restrictions conformed to the procedural requirements of the CPIA.  Furthermore, the Court felt that it could not read any more additional requirements into the Act because it would involve the judiciary into a sensitive area of international relations best left to the Executive Branch and Congressional oversight.  The Court wanted to preserve the balance that Congress sought to maintain between the need for notice and transparency and for confidentiality in diplomacy by not requiring more stringent restrictions on the notice requirements in the act.  In turning to the APA claim, the Court stated that CBP was just enacting restrictions under the procedure in the CPIA and if Congress wanted to it could reject the restrictions or amend the law to provide a more detailed procedure.  Finally, the Fifth Amendment claim was without merit due to the availability of a forfeiture procedure, which puts the burden on the government to prove the coins were restricted under the CPIA and has available exceptions to an import restriction.

Full Opinion

-Jonathan M. Riddle

United States v. Wooden, No. 11-7226

Decided: September 6, 2012

This case concerned a government petition for civil commitment of a convicted pedophile under the Adam Walsh Child Protection and Safety Act of 2006 (the Act).  The Fourth Circuit remanded the district court’s denial of the government’s petition for commitment.  The Court found that the district court committed reversible error by ignoring evidence of the defendant’s ongoing pedophilia and “serious difficulty” of reoffending as defined under the Act.  Finally, the district court improperly held that the application of the Act to defendant violated his equal protection and due process rights.

Walter Wooden, who is cognitively impaired, was twice imprisoned for improper sexual acts with a minor.  The first conviction was due to six arrests for improper sex acts with a minor while Wooden was under 18.  Wooden was convicted the second time after being paroled in 1980.  He was paroled in 2002 for the second conviction and ordered to undergo long-term sex offender treatment and testing.  In 2005, Wooden admitted to having deviant sexual thoughts about children and to hiring himself out as a babysitter to local children.  He also admitted to sexual contact with a young boy and attempted sexual contact with a 7 year old boy in his neighborhood.  Wooden was not sure if the latter attack was a dream or not.  Wooden was imprisoned again for violating paroled.  While in prison, Wooden wrote a Christmas card to the 7 year old boy.  The government instituted civil commitment proceedings and hired two experts, who analyzed Wooden and prepared a report.  This report had several actuarial numbers that showed Wooden was likely to reoffend.  Wooden’s expert testified that Wooden did not suffer from a “volitional impairment” required by the Act, and that his pedophilia had subsided over time.  Wooden’s expert also stated that due to numerous factors, Wooden was not a danger to reoffend.  Finally, Wooden’s own testimony revealed he felt bad about molesting children and knew that it was wrong.  However, this testimony contradicted his earlier testimony where he stated that young children wanted to have sex with him.  The district court gave more weight to Wooden’s expert and found that he did not suffer from a volitional impairment, and that under the Act, the government had to prove Wooden was dangerous, in that there was a 50% or more chance he would reoffend.

The Fourth Circuit first stated that the Act is not open to a due process or equal protection challenge due to a previous ruling.  The Court stated that despite the deference due factual findings, the lower court ignored plausible evidence to the contrary.  While the lower court could weigh which expert was more credible, it gave no weight to contrary evidence, and its finding that Wooden did not suffer from pedophilia was against the preponderance of the evidence.  The Court had a similar ruling regarding Wooden’s likelihood of re-offense.  The Court made sure to say that the Act does not require a 50% or “dangerousness” standard, but merely a “significant difficulty” in returning to society without reoffending.  The Court went on to say that the lower court should have given more weight to the government’s experts, and most importantly, Wooden’s own contradictory testimony.  In light of the circumstances, the Court found that the preponderance of the evidence showed Wooden was suffering from a “volitional impairment” and would have a “serious difficulty” returning to society.

Full Opinion

–Jonathan Riddle

United States v. Whitfield, No. 10-5217

Decided:  August 22, 2012

Defendant Larry Whitfield appealed his convictions and sentence arising from his role in a failed attempt to rob a bank and a “mid-escape home intrusion” that resulted in the death of an elderly woman who resided at the home.  While Whitfield presented four bases for his appeal, the Fourth Circuit found only one to have merit – the district court’s error in instructing the jury on an offense not charged in Whitfield’s indictment.  On this basis, the court vacated Whitfield’s conviction and mandatory life sentence and remanded the case for amendment of the judgment and resentencing.

The proceedings against Whitfield began when a grand jury returned a four-count indictment against Whitfield and his accomplice in an attempted bank robbery.  Count Four of the indictment charged Whitfield with violating 18 U.S.C. § 2113(e).  Notably, this statute encompasses three alternative offenses, but Count Four alleged only two of the three alternative offenses.  The offense not alleged, the “death results offense,” formed the basis of the controversy surrounding the district court’s error.

While the death results offense was not included in the grand jury’s indictment, the district court nonetheless instructed the jury on this offense.  Whitfield repeatedly objected to the inclusion of this offense, and the district court overruled his objections.  Ultimately, the district court entered judgment against Whitfield, finding him guilty on Count Four and sentencing him based on the death results offense.

On appeal, the Fourth Circuit considered Whitfield’s claim “that his Fifth Amendment right to be indicted by a grand jury was abridged because he was convicted of an offense no charged in Count Four – the death results offense.”  The court concluded that the district court “constructively amended” Count Four when it instructed the jury on the uncharged death results offense.  Thus, because the court noted that a constructive amendment constitutes a fatal error and is reversible per se, it vacated Whitfield’s conviction of the death results offense and its resulting mandatory life sentence.  In reaching this decision, the court discussed the distinction between a constructive amendment and an indictment error and held that the district court’s “error arose not from the indictment’s omission of an element of a charged offense [i.e, an indictment error] but from the district court’s instructions on an element of an uncharged offense – the death results offense – [i.e., a constructive amendment] on which Whitfield ‘as ultimately convicted and sentenced.’”

Full Opinion

– Allison Hite

United States v. Earl Whittley Davis, No. 09-4890

Decided: August 16, 2012

Davis was convicted of various federal offenses arising from the armed robbery of an armored car employee, the murder of that employee, and a subsequent carjacking. Davis challenges the use of DNA evidence against him at trial, and the exclusion of expert testimony proffered by him in an attempt to undermine an eyewitness identification. The Court of Appeals affirmed the judgment of the District Court.

After the string of events leading to his indictment, but before trial, Davis filed a motion to suppress the use of all DNA evidence against him. Davis alleged that his DNA profile had been obtained by police and entered into the local police department DNA database in violation of his Fourth Amendment rights. The District Court declined to rule on the motion to suppress immediately, but after a jury found Davis guilty of the charges, the District Court denied the motion to suppress, prompting Davis’ appeal.

Davis alleged three separate Fourth Amendment violations relating to police collection and retention of his DNA: (1) the seizure of his clothing from the hospital room and its subsequent search; (2) the extraction of his DNA profile and testing in connection with a separate murder investigation; and (3) the retention of his DNA profile in the local police DNA database. The Court of Appeals addressed each of these arguments and found that there no Fourth Amendment violation in the seizure of the bag containing Davis’ clothing at the hospital, that the subsequent search of that bag was not unlawful since its contents were a forgone conclusion, and that there was a Fourth amendment violation in the extraction of Davis’ DNA profile from his clothing and the retention of that DNA profile in the local database.

While the extraction and retention of Davis’ DNA profile constituted Fourth Amendment violations, the Court concluded that the “good faith exception” to the exclusionary rule applied to both violations, such that the DNA evidence was not required to be excluded at trial.

The Court then addressed Davis’ argument that the District Court erred in excluding the testimony of his expert. Davis’ expert intended to testify that the lineup procedure used to obtain an eyewitness identification of Davis did not meet the good practices guidelines of the American Psychology-Law Society, and to other factors that can result in a misidentification. The Court of Appeals affirmed the District Court’s ruling that the testimony was not “scientific knowledge” that would be of benefit to the jury, and thus, was not admissible under Fed. R. Evid. 403, due to the low probative value of the testimony — based on the availability of significant other evidence of guilt — which was heavily outweighed by the danger of unfair prejudice, confusing of the issues or misleading the jury. The Court noted that even if the testimony was improperly excluded, it was harmless error.

In summary, the Court of Appeals affirmed the judgment of the lower court, finding that despite the noted Fourth Amendment violations, the good faith exception to the exclusionary rule applied, such that the DNA evidence at issue was not required to be excluded at trial, and that the exclusion of Davis’ proffered expert testimony was proper.

Judge Davis, dissenting:

The dissent disagreed with the majority’s application of the plain view exception to justify the seizure of the bag from the hospital and the subsequent search of the bag, and the majority’s refusal to apply the exclusionary rule. The dissent opined that the seizure and search of the bag was a constitutional violation of Davis’ privacy interests, and that the majority’s use of a “good faith exception” to the exclusionary rule was improper. The dissent would have vacated the judgment, reversed the denial of Davis’ motion to suppress the DNA evidence, and remanded the case to the lower court.

Full Opinion

– Kassandra Moore

United States v. Chappell, No. 10-4746

Decided:  August 14, 2012

Defendant Douglas Chappell appealed his conviction under Virginia’s police impersonation statute, Virginia Code § 18.2-174.  Chappell challenged the constitutionality of the statute, arguing that it violates the Free Speech Clause of the First Amendment.  Specifically, Chappell argued that the statute’s clause prohibiting a person from “falsely assum[ing] or pretend[ing] to be [a law enforcement officer]” was unconstitutionally overbroad and was a content-based speech restriction that was not narrowly tailored.  The Fourth Circuit dismissed Chappell’s challenges and affirmed his conviction.

After noting that facial invalidation of legislation is disfavored, the Fourth Circuit addressed Chappell’s general facial challenge.  The court found that the “statute has a plainly legitimate sweep” because it not only serves the state’s public safety interests but also deters individuals from pretending to be police officers in order to evade state-imposed sanctions.  The court chided Chappell for failing to bring an “as-applied challenge to his conviction” and for instead “hypothesiz[ing] the rights of third parties.”  The court refused to invalidate the statute “just because Chapell can conceive of far-fetched applications involving innocent behavior.”  Overall, the court was concerned that Chappell used hypothetical scenarios to challenge the statute in order to distract the court’s attention from his own illegal conduct.

Next, the Fourth Circuit addressed Chappell’s challenge under the overbreadth doctrine.  The court cited the general rule that “an individual to whom a statute may constitutionally be applied may not challenge that statute on behalf of third parties.”  It then acknowledged a narrow exception to this rule under the First Amendment overbreadth doctrine which allows individuals to challenge overly broad statutes even though their own conduct is clearly unprotected.  However, the court found that Chappell’s challenge under this doctrine failed for several reasons.  First, Chappell “failed to show any ‘realistic danger’ that the … statute will significantly compromise anyone’s First Amendment rights … .”  Second, the court held that the statute does not compromise any recognized First Amendment protections but instead “prohibits a species of identify theft in which there is little or no communicative value.”  Finally, the court held that even if the overbreadth doctrine applied to Chappell’s challenge, his challenge would fail because he did not satisfy the two requirements for invalidating a law that restricts speech: that the realistic constitutional applications of the law be substantial in both an absolute sense and relative to the statute’s plainly legitimate sweep.

Finally, the Fourth Circuit dismissed Chappell’s argument based on the Supreme Court’s decision in United States v. Alvarez which held the Stolen Valor Act to be “facially unconstitutional as a content-based restriction on speech.”  Contrary to Chappell’s arguments, the court held that Alvarez supports its conclusion that Virginia’s statute is not facially invalid under the First Amendment because the Alvarez court recognized “the general validity of laws prohibiting ‘the false representation that one is speaking as a Government official or on behalf of the Government.’”

Full Opinion

– Allison Hite

United States v. Smoot, No. 11-4442

Decided: August 13, 2012

The Court of Appeals affirmed Charles Lee Smoot’s conviction for being a felon in possession of a firearm, rejecting Smoot’s 18 U.S.C. § 922 challenges to his conviction.

In 2008, an anonymous call to the Hyattsville, Maryland, police led to Charles Smoot’s arrest on an outstanding warrant.  Smoot was seized in the backyard of the address given by the anonymous citizen, and during the ensuing pat down, an officer seized a loaded .38 caliber revolver from Smoot’s waistband.  Smoot was indicted in 2009 for being a felon in possession of a firearm.  Prior to trial, Smoot filed objections to the government’s proposed jury instructions, positing that District of Columbia v. Heller, created an additional element of a § 922 offense requiring the government to affirmatively rebut a presumption that his possession of the revolver was for legitimate self-defense purposes.  The district court rejected Smoot’s arguments, and he was convicted in 2010.  At his sentencing in 2011, the court denied Smoot a decrease in his offense level on the basis of acceptance of responsibility.  Smoot timely appealed his conviction and sentence.

On appeal, Smoot challenged § 922 as-applied, arguing that even as a convicted felon, he was entitled under the Second Amendment to possess a firearm in his home for self defense.  The Court of Appeals summarily rejected this argument, referring to the “longstanding prohibitions on the possession of firearms by felons,” as presumptively lawful regulators measures under Heller.  Furthermore, under United States v. Chester, decided after Heller, a two-prong test was established for assessing Second Amendment challenges.  The first prong requires an evaluation of whether those rights are “burdened or regulated” by the statute in question.  Under the second prong, the statute must pass constitutional muster.  In order for Smoot to rebut the presumption of lawfulness of § 922 as applied to him, he must show that his factual circumstances remove his challenge from the realm of ordinary challenges.  The Court of Appeals held that since Smoot’s criminal history was egregious, he clearly could not be considered a law-abiding responsible citizen under Heller or avail himself of any remedies under Heller, affirming the decision of the district court.

Full Opinion

-Nora Bennani

United States v. Brehm, No. 11-4755

Decided: August 10, 2012

Brehm appealed from the judgment of the United States District Court for the Eastern District of Virginia, challenging the jurisdictional basis for the indictment underlying his conviction. The Court of Appeals affirmed his conviction.

Brehm, a citizen of South Africa, pled guilty to a federal charge of assault resulting in serious bodily injury, under the condition that he be allowed to appeal the jurisdictional basis of the indictment. Brehm was indicted after he allegedly stabbed a British subject at Kandahar Airfield. At the time of the incident, both men were employed with private contractors supporting the NATO war effort in Afghanistan. On appeal, Brehm argued that the indictment underlying his conviction improperly relied on the Military Extraterritorial Jurisdiction Act (“MEJA”), in that MEJA cannot be constitutionally applied to him. Brehm further asserted that the government did not establish sufficient nexus between him and the U.S. to support the exercise of criminal jurisdiction, since, prior to his indictment, neither he nor the victim had every been in the U.S.

The Court of Appeals reviewed each of Brehm’s arguments in turn. First, the Court addressed Brehm’s argument that MEJA, while constitutionally valid on its face, could not constitutionally be applied to him. The Court noted that Article I, Section 8 of the Constitution grants Congress the express authority to “raise and support armies” and to “make all Laws which shall be necessary and proper” to adequately support the armed forces. Since Armies are expected to operate in foreign lands, MEJA specifically applies to “conduct outside of the United States” and, as such, reasonably anticipates application to foreign citizens. Furthermore, Brehm signed a “Foreign Service Employment Agreement” with his employer that provided that he understood and accepted that he may be subject to civilian criminal jurisdiction under MEJA because he was accompanying the U.S. Armed Forces outside of the U.S. As such, the Court held that MEJA was constitutional as applied to Brehm.

The Court then addressed Brehm’s argument that his prosecution violated Due Process, as the government failed to establish a sufficient nexus between him and the U.S. The Court stated that while Brehm did not target his conduct toward American soil or American commerce, his actions affected significant American interests at Kandahar Airfield — such as the preservation of law and order on the base, the maintenance of military-related discipline, and the reallocation of Department of Defense resources to confine Brehm and investigate the incident. As such, the Court felt that, even though Kandahar Airfield is not territory of the U.S., the American influence at Kandahar Airfield was so pervasive that it was a suitable proxy for due process purposes, such that imposing American criminal law there was not arbitrary. Additionally, the Court found no inherent unfairness in Brehm’s prosecution, noting that Brehm’s acknowledgement and acceptance of the warnings within his employment agreement regarding the criminal jurisdiction asserted by the U.S. constituted fair warning and notice that he could be subject to criminal prosecution in the U.S.

In summary, the Court of Appeals affirmed Brehm’s conviction in the lower court, finding that MEJA was constitutional as applied to his case, and that his prosecution comported with due process requirements.

Full Opinion

– Kassandra Moore

United States v. Mubdi, No. 10-5008

Decided: August 10, 2012

The Fourth Circuit affirmed the district court’s denial of Mubdi’s motion to suppress evidence seized during a traffic stop, finding that the police officers involved in the traffic stop at issue had probable cause to execute the stop and reasonable suspicion to prolong the traffic stop.  Additionally, the Fourth Circuit affirmed the district court’s imposition of a 240-month sentence for Mubdi’s drug convictions based on Supreme Court precedent establishing that a court’s decision to increase a minimum sentence based on judicial factfinding does not violate any rights under the Fifth and Sixth Amendments of the Constitution.

Mubdi first argued that the officers who carried out the traffic stop underlying his claims lacked probable cause to believe that he was speeding or following too closely.  The Fourth Circuit disagreed, noting that an officer’s visual observation of a driver’s speed “may alone be sufficient to establish probable cause.”  The Court found that the “touchstone of the probable cause inquiry is – as always – reasonableness,” and the Court determined that the officers’ visual speed estimates were reasonable given the facts of the case.  Thus, the Court found sufficient support establishing that the officers had probable cause to carry out the traffic stop and found no clear error in the district court’s conclusion that the officers reasonably believed that Mubdi was speeding.

Next, the Court affirmed the district court’s alternative finding supporting the officers’ decision to institute the traffic stop based on their belief that Mubdi was following too closely behind one the patrol cars.  Ultimately, the Court determined that even if the officers’ were mistaken in their estimate of the distance between the two cars, “such a mistake is patently a mistake of fact.”  The Court noted that as long as an officer’s mistake in making a traffic stop is reasonable, such mistake does not undermine a finding of probable cause.  It then found any mistake on the officers’ part to be reasonable under the circumstances and affirmed the district court’s decision that the traffic stop was justified on this alternative basis.

With respect to whether the officers unlawfully prolonged the traffic stop, and consequently violated Mubdi’s constitutional rights, the Court first found that the officers’ actions at issue “were no more intrusive than necessary and that they diligently pursued a means of investigation to confirm or dispel their suspicions.”  The Court highlighted the factual circumstances that supported the officers’ decision to extend the traffic stop and to conduct a canine sniff of Mubdi’s car.  The Court reviewed the district court’s decision based on a totality of the circumstances analysis and affirmed the district court’s decision that the officers established the reasonable suspicion needed to support the extended duration of the traffic stop.  Therefore, the Court upheld the district court’s denial of Mubdi’s motion to suppress on this basis.

Finally, the Court concluded that Supreme Court precedent foreclosed Mubdi’s argument that the district court violated his Fifth and Sixth Amendment rights by increasing his statutory mandatory minimum sentence for the drug offenses based on improper judicial factfinding.  Accordingly, the Court affirmed the sentence imposed by the district court.

Full Opinion

– Allison Hite

Durham v. Horner, Case No. 11-1022

Decided: August 8, 2012

Michael Dwayne Durham was indicted by a Virginia grand jury on three counts of selling drugs and was later arrested and jailed for several months.  The indictment of Durham resulted from the investigative work of David L. Horner, a police officer serving on a regional drug task force.  Horner’s investigation had primarily relied upon a confidential informant who had purchased the drugs from Durham.  The problem with the State’s case against Durham, however, was that the actual perpetrator of the crimes was a man named Michael David Durham.  Michael Dwayne Durham—the suspect in custody and who the Virginia authorities had located in Memphis, Tennessee and transported to Virginia—had absolutely nothing to do with the drug transactions and had not lived in Virginia in over a decade.  After the prosecutor realized the mistaken identity and dropped the charges, Durham brought a civil lawsuit against Horner, alleging his federal constitutional rights had been violated under 42 U.S.C. § 1983 and that he had been maliciously prosecuted under state law.  The district court granted summary judgment for the defendant on the basis of his qualified immunity as a law enforcement agent.

On appeal, the Fourth Circuit upheld the district court’s ruling.  The court applied its two-step approach for determining whether a police officer’s qualified immunity defense could be defeated:  “first whether a constitutional violation occurred and second whether the right violated was clearly established.”  The majority opinion, written by Judge King, found that no constitutional violation had taken place because Durham’s arrest and prosecution had been supported by probable cause.  The court stated that “an indictment, fair upon its face, returned by a properly constituted grand jury, conclusively determines the existence of probable cause.”  In addition, the court found that there was sufficient evidence for a reasonable police officer to believe that the Durham who was arrested was the same Durham who was actually conducting the drug deals.  Such incriminating evidence included:  the falsely accused Durham had a local address as a result of previously living in the area; he had a Tennessee driver’s license and the drug dealer had a Tennessee license plate; and Durham had two past convictions for drug-related incidents.

In dissent, Judge Wynn argued that summary judgment was inappropriate because there was a genuine dispute of fact as to whether Horner acted reasonably in confirming the accuracy of the name supplied by his informant.  Judge Wynn also took issue with the majority’s discussion of the law on qualified immunity.  According to Judge Wynn, the United States Supreme Court had already rejected the proposition that a grand jury indictment that is proper on its face conclusively establishes probable cause.

Full Opinion

-John C. Bruton, III

United States v. Mathur, No. 11-6747

Decided: July 11, 2012

The Fourth Circuit Court of Appeals affirmed the district court’s dismissal of Mathur’s motion to vacate his guilty plea based on the Supreme Court’s 2010 decision in Kentucky v. Padilla.  Mathur, an alien residing in the United States, pleaded guilty to possession with intent to distribute more than five kilograms of cocaine.  However, his lawyer failed to advise him that he may be deported as a result of that guilty plea.  In 2010, the U.S. Supreme Court held, in Padilla, that the Sixth Amendment right to counsel requires lawyers advise their clients of such consequences, and Mathur timely filed a motion within one year of that decision to vacate his plea.

The relevant statute, 28 U.S.C. § 2255, requires that a motion be filed within one year of conviction, or within one year of a new right held retroactive by the Supreme Court.  In order for Mathur to take advantage of the limitations period, he must show that the Supreme Court recognized a new right, the right has been made retroactively applicable, and the motion was filed within one year of the date on which the Supreme Court recognized the right.  In determining whether the Supreme Court recognized a new right, the Fourth Circuit identified a split in the circuits.  The Third Circuit has held that Padilla did not announce a new rule, but the Seventh and Tenth Circuits have held it did.  Assuming without deciding that it did recognize a new right, the critical inquiry is whether it is retroactively applicable.  New rules of constitutional law are generally not retroactively applicable because of the importance of the finality of decision.  However, Mathur contends that this new rule is “implicit in the concept of ordered liberty” and without the procedure, “the likelihood of an accurate conviction is seriously diminished.”  The Fourth Circuit disagreed, highlighting the Supreme Court’s only retroactive application was based on the denial of representation by counsel.  The Padilla right does not affect the fact-finding process because a defendant is already willing to plead guilty, and information related to possible deportation does not cast serious doubt on the truthfulness of the defendant’s guilty plea.  Furthermore, other courts have not considered Padilla a new, retroactive right.  Therefore, the dismissal is affirmed.

Judge Niemeyer concurred, and wrote separately to highlight language within § 2255 that justifies dismissal of Mathur’s motion.

Full Opinion

-Jennifer Routh

Burnette v. Fahey, No. 11-1324

Decided:  July 9, 2012

In this appeal brought by eleven inmates in the custody of the Virginia Department of Corrections against members of the Virginia Parole Board (the “Board), the Fourth Circuit affirmed the district court’s dismissal of the inmates’ claims that new policies implemented by the Board violated their rights under the Due Process and Ex Post Facto Clauses of the United States Constitution.  Overall, the inmates argued that the Board’s new policies resulted in a de facto abolition of parole for parole-eligible persons convicted of violent offenses and consequently denied them of a fair and meaningful review of their parole applications.

To begin, the Fourth Circuit noted that because there is “no constitutional or inherent right” to parole, any protectable interest in parole must be found in Virginia law.  It then determined that a state has no obligation to offer parole, but it noted that once a state creates parole, the Due Process Clause requires the state to use fair procedures in effectuating the parole system.  The Court additionally noted that because state parole decisions are entitled to great federal deference, the Constitution imposes only minimal requirements on these procedures.  Finally, the Court referred to prior decisions in which it determined that Virginia’s parole authorities are required only to provide prisoners with “a statement of [their] reasons for denial of parole.”

Because the Court found the inmates’ arguments to be at odds with the facts alleged in their complaint, it affirmed dismissal of their claims.  Specifically, the Court found that because the Board supported each denial of the inmates’ parole with at least one reason for its denial, the Board’s parole procedure complied with Constitutional requirements.  Additionally, the Court dismissed the inmates’ claim that the Board “effected an ex post facto enhancement of the punishment for their crimes, in violation of the United States Constitution.”  The Court found that the inmates failed to establish a causal link between the Board’s procedural changes and any significant risk of increased punishment.  The Court found that the inmates failed to allege facts showing that the decrease in parole-grant rates was solely attributable to the Board’s new policies and noted numerous additional explanations which existed to explain the decreased rate.  Overall, the Court reiterated its policy against micromanaging state parole systems and supported the Board’s discretion to exercise varied levels of discretion in granting or denying parole.

Full Opinion

– Allison Hite

Brooks v. Arthur, No. 11-1899

Decided: July 9, 2012

In this case, the Fourth Circuit affirmed summary judgment for the Defendant superintendents of a correctional facility on a claim that they had violated certain employees’ First Amendment rights.  The court held that the superintendents had not violated the employees’ rights by terminating their employment in alleged retaliation for filing discrimination complaints because the Plaintiffs’ speech did not involve a matter of public concern.

The Plaintiffs, James Brooks and Donald Hamlette, were corrections officers at a Virginia Department of Corrections (“VDOC”) facility who were fired after Brooks discussed with the VDOC’s Equal Employment Opportunity (“EEO”) that he was being singled out for unfair workplace treatment and Hamlette, a minority, filed a complaint with the EEO that he was being discriminated against on the basis of his race and religion.  Shortly after they were fired, the VDOC Department of Employment Dispute Resolution reinstated both employees and awarded them back pay.  The Plaintiffs subsequently brought a 42 U.S.C. § 1983 claim against the Defendants, alleging that the VDOC superintendents had violated their First Amendment right to free speech by firing them in retaliation for making their employment discrimination claims.

The District Court for the Western District of Virginia granted summary judgment for the Defendants, and on appeal the Fourth Circuit upheld that order.  The court looked to its decision in Stroman v. Colleton County School District, 981 F.2d 152 (4th Cir. 1992) which provided that “personal grievances such as complaints about conditions of employment…do not constitute speech about matters of public concern that are protected by the First Amendment.”  Applying this precedent, the court found that the speech that the Plaintiffs alleged had been curtailed was not a matter of public concern but pertained only to personal grievances with an employer.  Thus, the First Amendment could not be invoked to protect the Plaintiffs’ complaints regarding employment favoritism.  The court concluded by stating that it was not offering any view on the merits of any other claims the Plaintiffs may have, but rather, that the First Amendment was not violated in this employee-grievance dispute between these two parties.

Full Opinion

-John C. Bruton, III

Moss v. Spartanburg County School District Seven, No. 11-1448

Decided: June 28, 2012

Plaintiffs, the parents of two students and the Freedom From Religion Foundation, brought suit pursuant to 42 U.S.C. § 1983, alleging that one of the School District’s policies, which allows student to receive two academic credits for off-campus religious instruction, violates the First Amendment. The defendant brought a motion for summary judgment, asserting that the plaintiffs lacked standing because they were not injured by the policy, and that the policy is constitutional in that it is neutrally stated and administered and has a secular purpose of accommodating students’ desire to receive religious instruction. Plaintiffs filed a cross-motion for summary judgment, asserting an Establishment Clause violation in that the purpose and primary effect of the policy is to promote Christianity. The District Court found that the plaintiffs did have standing, but rejected the plaintiffs’ argument on the merits and granted summary judgment to the defendant. The Appellate Court affirmed the judgment of the lower court.

On appeal, the Court first addressed the issue of standing. The Court rejected the plaintiffs’ proposal that it adopt a per se rule that students and parents always have standing to bring suit against policies at their school when a violation of the Establishment Clause has been alleged; however, the Court did recognize that standing principles must be “tailored to reflect the kind of injuries Establishment Clause plaintiffs are likely to suffer,” which oftentimes will not be tangible or economic. The Court addressed the standing of the plaintiffs individually and found that Ellen Tillett, her child, and the Freedom From Religion Foundation lacked standing, while Robert and Melissa Moss had standing to bring the action.

The Appellate Court then addressed the alleged Establishment Clause violation. The plaintiffs with standing, the Mosses, argued that while off-campus released time initiatives, like the program allowed by Zorach v. Clauson, 343 U.S. 306 (1952), are generally constitutional, this particular program is not because it provides academic credit. The Court was not persuaded by this argument. Noting that public schools have broad, but not unlimited, discretion to release students from their secular lessons so as to accommodate their desires to engage in religious instruction, the Court found that the off-campus release program satisfies all three prongs of the well-established Lemon test. Furthermore, the Court stated that the fact that the school accepts credits for the off-campus courses does nothing to alter the analysis under any of the three prongs of the Lemon test.

The Court was also unconvinced by the plaintiffs’ argument that the School District had become entangled with a local bible school. The Court found that the District officials maintained a neutral relationship with the bible school, neither encouraging nor discouraging student’s participation in the bible school’s courses.

In summary, the Appellate Court affirmed the lower court’s judgment, finding the School District’s released time program, which it adopted pursuant to the Released Time Credit Act and administered in a religiously neutral manner, neither violates the Establishment Clause nor entangles the School District in religion, but rather “accommodates religion without establishing it, in accordance with the First Amendment.”

Full Opinion

– Kassandra Moore

United States v. Danielczyk, No. 11-4667

Decided: June 28, 2012

The Government appealed the district court’s grant of William P. Danielczyk, Jr. and Eugene R. Biagi’s (“Appellees”) motion to dismiss count four and paragraph 10(b) of the indictment, alleging that they had conspired to, and did, facilitate direct contributions to Hillary Clinton’s 2008 presidential campaign in violation of 2 U.S.C. § 441b(a) of the Federal Election Campaign Act of 1971 (“FECA”), and 18 U.S.C. § 2.  The Fourth Circuit reversed the district court’s grant of this motion.

This case began when the Appellees were indicted on seven counts involving their scheme to make illegal campaign contributions to Clinton’s campaign.  Count four and paragraph 10(b), the counts at issue on appeal, respectively charged the Appellees with knowingly and willfully causing contributions of corporate money to a candidate for federal office, aggregating $25,000 or more, in violation of § 441b(a) and 2 U.S.C. § 437g(d)(1)(A)(i), and conspiring to do so.  The two men moved to dismiss count four, contending that § 441b(a) is unconstitutional as applied to them in light of the Supreme Court’s decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010).

To begin its analysis, the Fourth Circuit noted that “Citizens United left untouched § 441b(a)’s ban on direct corporate contributions.”  In contrast, in ruling in favor of Appellees’ motion, “the district court held that § 441b(a)’s ban on direct corporate contributions as applied to Galen [the corporation that the two men served as officers of during the time of the charged conduct] is unconstitutional because it impermissibly treats corporations and individuals unequally for purposes of political speech.”  The Fourth Circuit disagreed with the district court’s reasoning on this matter and held that “§ 441b(a) is not unconstitutional as applied to the Appellees.”  The Fourth Circuit determined that the district court erred in granting the motion to dismiss.

The Fourth Circuit reasoned that a 2003 Supreme Court case, Federal Election Commission v. Beaumont, 539 U.S. 146, “makes clear that § 441b(a)’s ban on direct corporate contributions is constitutional as applied to all corporations.”  The Fourth Circuit dismissed the Appellees’ argument “that Beaumont does not govern our inquiry here because its holding was limited to nonprofit corporations.”  The Court found that “Beaumont stands for the proposition that a nonprofit corporation does not differ from a for-profit corporation for purposes of § 441b(a) because all corporations implicate the asserted government interests, and § 441b(a) is closely drawn to further those interests.”  The Court also noted “Beaumont’s extensive discussion of Congress’s legitimate interests in regulating direct contributions made by all corporations.”

In dismissing the Appellees’ next argument that Citizens United repudiated Beaumont’s reasoning, the Fourth Circuit turned to Citizens United and found that the Supreme Court “did not discuss Beaumont and explicitly declined to address the constitutionality of the ban on direct contributions.”  The Court found that the Appellees’ analysis on this matter “ignores the well-established principle that independent expenditures and direct contributions are subject to different standards of scrutiny and supported by different government interests.”  The Court distinguished “independent expenditures” from “direct contributions,” noting that direct contribution limitations “require the ‘lesser demand of being closely drawn to match sufficiently important interest.’”  The Court reasoned that “independent expenditures, by definition, are direct means by which political speech enters into the marketplace … direct contributions, conversely, do not necessarily fund political speech but must be transformed into speech by an individual other than the contributor … .”

Full Opinion

– Allison Hite

Huggins v. Prince George’s County, No. 10-2366

Decided: June 27, 2012

Jane Huggins, trading as SADISCO of Maryland, appealed the district court’s grant of summary judgment in favor of Prince George’s County and five County officials.  In November 2001, SADISCO purchased a 99.7 acre parcel of land in the County, with the intention of operating a salvage automobile wholesaling business on the parcel.  The Property directly abuts a portion of the Andrews Air Force Base, a designated superfund site by the Environmental Protection Agency, which requires priority remedial attention because of the presence of a dangerous accumulation of hazardous wastes.  The purchas contract SADISCO signed acknowledged the condition of the property and that the purchaser would have no recourse against the Seller with respect to the environmental condition of the property.  On December 20, 2011 SADISCO applied to the County for a use and occupancy permit, and three months later applied for a permit to temporarily house a construction trailer on the Property.  On June 12, 2002, the County issued a permit for the trailer, but by the end of October 2002, the County had revoked all outstanding permits to SADISCO based upon violation of numerous County Code provisions, particularly performing grading work on the property without the proper permits and impermissibly operating its business out of the construction trailer.

SADISCO continued to operate its business on the property, and in May 2003, the County filed two petitions in Maryland state court for injunctive relief against SADISCO’s grading permit violations and zoning code violations.  On September 2, 3002, SADISCO and the County entered into two consent orders for each petition for injunctive relief, providing that within 60 days SADISCO would obtain the required grading permit and within 90 days vacate the premises until a valid use and occupancy permit as well as a building permit for the trailers.  The day before SADISCO signed the consent orders, its attorney sent a letter to a County attorney describing the standard practice of the county to work with property owners to resolve county code violations and to forbear from enforcement as long as the property owner was making good faith efforts to cure its violations.  According to SADISCO, the letter memorialized an oral contract between SADISCO and the County that predates the consent orders.  The County then granted SADISCO a series of extensions of the deadline for compliance with the consent orders, however on March 18, 2004 the county notified SADISCO of its intention to enforce the Zoning Consent Order as of March 28.  At an April 27 meeting various County officials decided to padlock the gate onto SADISCO’s property the next day and allow access only to remove cars and perform other tasks that would bring SADISCO into compliance.

Almost three years later, on March 30, 2007, SADISCO filed the present action against the County and five officials, alleging: 1) violation of SADISCO’s substantive due process rights under the Due Process Clause; 2) violation of SADISCO’s substantive due process rights under the Maryland Declaration of Rights; 3) breach of contract; 4) tortious interference with economic relations; and 5) negligent misrepresentation.  In February 2008 the district court dismissed Counts 2, 4, and 5 for failure to comply with the pre-suit notice requirements of the Local Government Tort Claims Act.  Count 3 was dismissed as time barred as to a written contract, and proceeded with discovery as to two alleged oral contracts. On July 24, 2009, the district court granted the County summary judgment, dismissing the Officials in their individual capacities from the action on the basis of qualified immunity, as well as the remaining portion of Count 3.  On November 9, 2010, the district court granted summary judgment to the county as to Count 1.  On appeal, SADISCO challenged all of the district court’s rulings.

As to the breaches of two oral contracts, the district court held that no consideration in favor of the County existed to support a valid oral contract which predated the Consent Orders.  The Court of Appeals upheld that determination, and further explained that the parol evidence rule barred the admission of an oral contract because such evidence directly contradicts the terms of the two subsequent written consent orders.  As to Count 1, the district court held that SADISCO had not forecast sufficient evidence that it had a property interest protected by the Due Process Clause, as SADISCO did not hold a valid permit at the time the county locked its gates.  The Court of Appeals agreed, further stating that even if SADISCO had been in possession of a valid permit, the County’s conduct did not rise to the level of arbitrary or conscience shocking.  As to Counts 2, 4, and 5, the district court held that SADISCO failed to comply with the notice requirements of the LGTCA and failed to show good cause for its noncompliance.  The LGTCA prohibits an action for unliquidated damages against a local government or its employees unless the plaintiff provides notice of the claim within 180 days after the injury.  The doctrine of substantial compliance allows an exception where a plaintiff has sufficiently apprised local governments of their possible liability at a reasonable time thereafter to conduct an investigation.  Furthermore, a suit can still proceed if a plaintiff is able to show good cause to waive the requirements and the defendant cannot affirmatively show that its defense has been prejudiced by a lack of required notice.  The Court of Appeals held that the district court had not committed an abuse of discretion in finding that SADISCO had failed to comply with the notice requirements and failed to show good cause for their noncompliance.

Full Opinion

-Nora Bennani

Greater Baltimore Center v. Mayor and City Council, Nos. 11-1111 and 11-1185

Decided: June 27, 2012

Archbishop Edward F. O’Brien, St. Brigid’s Roman Catholic Congregation, Inc., and the Greater Baltimore Center for Pregnancy Concerns, Inc. (“the Pregnancy Center”) sued the Mayor and City Council of Baltimore, challenging the constitutionality of the City’s Ordinance 09-252, which requires that “limited-service pregnancy centers” post signs disclaiming that they “do[] not provide or make referral for abortion or birth control services.  The complaint alleged that the ordinance, both facially and as applied, violates the plaintiffs’ free speech, free exercise, and equal protection rights under the First and Fourteenth Amendments to the Constitution, as well as the plaintiffs’ rights under the Conscience Clause of Maryland’s health law.

The district court granted summary judgment to the Pregnancy Center on its freedom of speech count, dismissed the Archbishop and St. Brigid’s as plaintiffs for lack of standing, and dismissed the remaining counts without prejudice, in view of its free speech ruling.  The court held that the disclaimer is “a form of compelled speech” that “alters the course of a [pregnancy] center’s communication with a client or prospective client about abortion and birth-control” and “is based, at least in part, on disagreement with the viewpoint of the speaker.”

The disclaimer required by the City’s Ordinance 09-252 must be made through at least one “easily readable” signs conspicuously posted in the waiting room, in both English and Spanish.  Failure to comply carries a civil penalty of $150.  The ordinance was the end-result of the City Council President meeting with abortion rights advocacy groups, which complained that some pregnancy clinics provide inaccurate information about abortions.  The Pregnancy Center is a “limited-service pregnancy center” encompassed by the Ordinance which provides services to pregnant women.  The Center provides information on abstinence and natural family planning, but does not provide information about abortions.  Additionally, the Pregnancy Center does not charge for its services and its employees sign a statement affirming his or her Christian faith and belief that abortion is immoral.

Archbishop O’Brien of Baltimore is a corporate entity which owns the property on which the Pregnancy Center operates one of its locations and St. Brigid’s Church operates.  Before enforcement of the ordinance, the Archbishop, St. Brigid’s, and the Pregnancy Center commenced this action. The complaint alleges that the Pregnancy Center does not provide or refer abortions based on moral and religious beliefs and that the Ordinance specifically targets pro-life organizations.  The complaint also states that requiring a disclaimer that the center does not provide or refer abortions compels plaintiffs to deliver the implied message that these services are available elsewhere and should be considered.  Finally, the complaint objects to the Ordinance’s requirements that the Pregnancy Center post a sign saying it does not provide birth control services.  Plaintiffs seek a declaratory judgment that the Ordinance is unconstitutional on its fact and/or as applied and an injunction prohibiting enforcement.  The court entered a permanent injunction barring enforcement.  Both parties appealed. For the following reasons, the Fourth Circuit affirmed.

The plaintiff’s cross-appeal challenged the district court’s dismissal of the Archbishop and St. Brigid’s for lack of standing.  The district court reasoned that Archbishop and St. Brigid’s are not required to comply with the ordinance, thus they did not suffer a “concrete and particularized” injury.  The Archbishop and St. Brigid’s argue that the district court ignored they injury they suffer as a result of the ordinance’s infringement of their right to freedom of speech, as they own the property in which the Pregnancy Center is located.  Although the Ordinance does require some speech, its mandate only applies to the space operated by the Pregnancy Center and only patrons of the Center would see the signs.  Ideological injuries of the sort claimed here, without more, are insufficient to support standing.  Furthermore, it is unlikely that the Archbishop or St. Brigid’s would face liability if the Pregnancy Center violated the ordinance.  Accordingly, the district court’s ruling that the Archbishop and St. Brigid’s lack standing to challenge the ordinance was upheld.

The City contended that the district court erred in applying strict scrutiny to the ordinance, as the ordinance constitutes commercial speech and thus is subject to a lower level of scrutiny — an assessment of whether the disclosure requirements are reasonably related to the State’s interest.  Alternatively, the City argues that the speech mandated is analogous to election-law disclosures or abortion-regulation disclosures, both of which are evaluated at a lower level than strict scrutiny.  The Pregnancy Center argued that this is a content-based regulation that is subject to strict scrutiny.  Commercial speech is “expression related solely to the economic interests of the speaker and its audience.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980).  Nonetheless, speech is not commercial when it is intertwined with otherwise fully protected speech.  The ordinance at issue targets speech regarding the provision of “free services.”  There is no indication that the Pregnancy Center is motivated by economic interest, but rather engages in ideologically-driven speech that has long been afforded the highest levels of First Amendment protection.

The City does not address what commercial transaction is proposed by the Pregnancy Center’s speech or what economic interest motivates the Pregnancy Center, but would rather define commercial speech as including speech that offers services with commercial value.  Such a definition would encompass nearly every charitable organization.  The Fourth Circuit agreed with the district court that pregnancy centers do not engage in commercial speech and their speech cannot be denied full protection of strict scrutiny.

As to the City’s second argument, that the ordinance is analogous to the disclosure requirements on abortion providers and in campaign finance.  Such cases, however, differ from the instant case, therefore the cases are inapplicable.  Abortion providers faced mandatory disclosures on the speech of licensed medical professionals; the regulations were upheld because they implicated a physician’s right not to speak only as part of the practice of medicine.   In contrast, pregnancy centers do not practice medicine, are not staffed by licensed professionals, and do not require informed consent.  Campaign finance laws also differ from the instant case as such regulations are less likely to be content- or viewpoint-based and power a lower risk of impacting the speaker’s message, while the ordinance is content-based.  Accordingly, the district court properly held that the ordinance is subject to strict scrutiny.

Content-based regulations are presumptively invalid, but the City can rebut the presumption if it is able to show that the ordinance is narrowly tailored to promote a compelling government interest, such that the ordinance is the least restrictive alternative.  The City believes it can satisfy strict scrutiny, arguing that the city has an interest in countering the “deceptive business practices” of certain pregnancy centers and in protecting the health of pregnant women and ensuring that pregnant women who seek abortions have prompt access to medical services.  While the City does in fact have a considerable interest in promoting the general health and well-being of its citizens, there is no “actual problem” in need of solving which would constitute a compelling interest.  The record establishes only isolated instances of misconduct by pregnancy centers generally and none by the Pregnancy Center itself.  The City’s claim of its compelling interest is also called into question by its selective pursuit of its interest – the ordinance does not focus on or reach a significant number of sources that pregnant women likely consult, such as books, websites, religious leaders, etc., and thus is underinclusive.  Finally, the City has done nothing other than pass this Ordinance in an effort to protect its interests.

Furthermore, the ordinance is not narrowly tailored to serve the City’s interest, as it is does not advance the purported compelling interests, it is overinclusive, and the government has other, less speech-restrictive alternatives available.  Such alternatives include the notion that the City could speak with its own voice, produce a document or website listing local pregnancy centers and what services are available at each, and prosecuting violations of its criminal and civil laws that proscribe deceptive advertising and deceptive statements made by pregnancy centers.

Neither the district court nor the Fourth Circuit rested on the City’s failure to demonstrate a compelling government interest.  Instead, both courts found that the Ordinance is not narrowly tailored to promote the City’s interests, the Ordinance is invalid, in violation of the First Amendment presumption that speakers, rather than the government, know best what to say and how to say it.

The City finally contends that the district court abused its discretion in converting its motion to dismiss into a motion for summary judgment without giving it prior notice and allowing it discovery and in dismissing the plaintiffs’ remaining counts without prejudice.  Converting the City’s 12(b)(6) motion into a motion for summary judgment did not deny the City an opportunity to press its claim that the complaint failed to state a claim upon which relief could be granted, but rather simply gave recognition to the fact that the court would be looking at the case more broadly.  The plaintiffs’ summary judgment motion put the City on notice that the court would be considering matters beyond the complaint and the City should file a response to that motion.   Indeed, the City did submit matters outside the complaint and its motion to dismiss for consideration by the court.  Furthermore, additional discovery was unnecessary, as it could not eliminate the narrow tailoring problems.  Additional discovery was also unnecessary to show that the pregnancy centers engage in commercial speech, as the district court found that the law on its face regulated protected speech.  The City’s final contention, that the district court abused its discretion in dismissing the Pregnancy Center’s remaining counts without prejudice, rather than with prejudice, lacks merit.

For the foregoing reasons, the Fourth Circuit affirmed the district court’s ruling.

Circuit Judge King dissented, arguing that the district court improperly denied the City essential discovery, refused to view in the City’s favor what evidence there was, and made untoward findings of fact premised upon nothing more than supposition.  Additionally, the court discounted the real possibility that the Ordinance targeted only commercial speech.  King emphasized that several pregnancy centers were using questionable tactics to delay women from obtaining abortions.  The City Council concluded that the Ordinance was the best measure to prevent the dangers posed to public health.

The Pregnancy Center moved for summary judgment on its free speech and equal protection claims two months after service of the Complaint and a mere four days before the City’s response was due.  At that point, no party had initiated discovery, prompting the City to seek dismissal of the complaint.  Additionally, the City averred that it could not adequately oppose the Pregnancy Center’s motion for summary judgment without first conducting discovery.  Specifically, the City desired the opportunity to develop factual support for the argument that pregnancy centers engaged in deceptive advertising.

Summary judgment is appropriate only after adequate time for discovery, which is essential in a contested proceeding, as it lets a party show that relevant facts are undisputed.  At minimum, a court must refuse summary judgment where the nonmoving party has not had the opportunity to discover information essential to its case.  The City appropriately filed a declaration averring that it could not oppose summary judgment without discovery.  Such declarations are broadly favored and should be liberally granted.  In the instant case, the district court decided that the City’s discovery requests were insincere and considered itself constrained to base its decision on the evidence relied on by the City at the time the Ordinance was passed.

The district court legally erred in denying discovery prior to converting the City’s motion to dismiss into a request for summary judgment.  The majority states that the City was on notice that the court would be considering matters beyond the complaint.  However, once a party is notified, it must be afforded a reasonable opportunity for discovery before a Rule 12(b)(6) motion may be converted and summary judgment granted.  The district court’s justification for refusing to authorize discovery rested on an erroneous perception that further factual development was not important.  While a summary judgment motion may be decided without further discovery where a facial challenge may be resolved as a question of law, such circumstances are extremely limited.  In this situation, the court did not conduct a facial analysis of the constitutionality of the Ordinance, thus denying discovery was improper.  The plaintiffs could have facially challenged the Ordinance by demonstrating that the law is unconstitutional in all applications or by showing that the law is overbroad because a substantial number of applications are unconstitutional.  The district court only concluded that the Ordinance’s application o the provision of free services was unconstitutional and failed to address a substantial number of other applications.  Instead, the district court and the majority of the Fourth Circuit conducted as-applied assessments.  Accordingly, the City was unquestionably entitled to conduct discovery.

In declining the City’s discovery requests, the district court failed to conduct the analysis that was essential to properly decide the appropriate level of judicial scrutiny.  The Supreme Court has recently explained that commercial speech is typically defined as speech that does no more than propose a commercial transaction.  However, the distinction between commercial and noncommercial speech is a close question, thus a court should consider: (1) whether the speech is an advertisement; (2) whether the speech refers to a specific product or service; and (3) whether the speaker has an economic motivation for the speech.  In the instant case, the speech targeted by the Ordinance satisfies the first two considerations, as the speech is advertisement for a service.  The majority concludes that the third consideration is absent because the Pregnancy Center does not charge for its services.  However, the district court and the majority simply accept the Pregnancy Center’s unsupported assertion that its motives are entirely religious or political.  Discovery could have ascertained whether the Pregnancy Center did in fact have economic interests in the speech to be regulated.

Because the Ordinance compels a disclaimer, courts should consider the nature of the speech regulated taken as a whole and the effect of the compelled disclaimer.  In Fargo Women’s Health Org., Inc. v. Larson, 381 N.W.2d 176 (N.D. 1986), cert. denied, 476 U.S. 1108 (1986), a pregnancy clinic’s advertising were found to constitute commercial speech in the overall context of the speech.  Here, the district court completely failed to consider the full context of the speech in deciding that “even if the Center’s speech ‘includes some commercial elements, strict scrutiny would nonetheless apply,’ since any commercial element was ‘inextricably intertwined with otherwise fully protected speech.’”   The district court’s conclusion that the speech at issue blended commercial and noncommercial, without the benefit of discovery, was erroneous.  Where the commercial and noncommercial components can be separate, they are not “inextricably intertwined.”  The Ordinance merely requires a disclosure that the center does not provide or make referrals for abortion or birth-control services, but would allow a pregnancy center to express its disapproval alongside the disclaimer.  In sum, discovery proceedings at the very least could have yielded the degree of entanglement between commercial and noncommercial speech.

The district court also improperly characterized the City’s request for discovery as “an attempt to generate justifications for the Ordinance following its enactment.”  In fact, the City merely sought to augment the record with evidence to support its existing justification.  Supplementing the record in this fashion is permissible, thus there was no legitimate reason for the district court to deny discovery.

Furthermore, the district court’s conclusion that the Ordinance is not viewpoint neutral— the alternative basis for applying strict scrutiny — is incorrect.  The record validates the City’s contention that the Ordinance was enacted to curtail deceptive advertising, not because the City wanted to suppress the Pregnancy Center’s speech.

Even if all of the foregoing rationales are incorrect, the district court’s award of summary judgment must be vacated because there are genuine issues of material fact regarding the issues of compelling interests and narrow tailoring.  The City had an obligation to deal with existing public health problems without addressing the likelihood of deception from every possible source of information available to pregnant women.  The majority asserts that the City had other options available, such as placing warnings on its own websites or providing public service information, rather than target the Pregnancy Center’s speech.  The majority directs its criticisms towards the City’s first identified compelling interest, protecting the public from deceptive business practices, with barely any discussion of the second interest — ensuring that individuals who seek abortions or birth-control services have prompt access to those services. The City undoubtedly has a compelling interest in defending a woman’s right to obtain information and medical care in connection with her pregnancy and submitted the declaration of a Dr. Blum in support of such interest.  The Blum declaration was never referenced by the district court, but on appeal must be viewed in the light most favorable to the City.  Dr. Blum’s evidence alone created a genuine issue of material fact to survive summary judgment.

Additionally, the disclosure required by the Ordinance is not overbroad and performs the important function of deterring actual corruption and avoiding the appearance of corruption with the added advantage of promoting speech by making more information available to the public.  If the Ordinance outlined exactly what pregnancy centers must say in advertisements, the Ordinance would then be considered overbroad.  The majority also argues that the disclaimer is overinclusive because it applies even to pregnancy centers whose speech is entirely truthful.  However, the Ordinance applies equally to all pregnancy centers and exempting certain centers could undermine the efficacy of the overall scheme.

Finally, the majority suggests that the Ordinance is not the least restrictive means of preventing deceptive advertising.  However, the City has never been afforded a meaningful opportunity to explore alternatives to the disclaimer.  The Pregnancy Center did not propose any least restrictive alternatives until it replied concerning its own summary judgment request.  While the City has argued that that other less restrictive alternatives are ineffective or less effective, the City has not been afforded an opportunity to adduce evidence with respect to the alternatives, thus there is a genuine issue of material fact as to narrow tailoring. Because there are several genuine issues of material fact, the district court improperly granted summary judgment.

Full Opinion

-Michelle Theret

Centro Tepeyac v. Montgomery County, No. 11-1314 and No. 11-1336

Decided: June 27, 2012

Plaintiff, Centro Tepeyac (“Tepeyac”), a nonprofit corporation that provides pregnancy services but does not refer for or provide abortions, sought a declaratory judgment that Montgomery County Resolution No. 16-1252 (“the resolution”) is unconstitutional, and preliminary and permanent injunctive relief against its enforcement.

The resolution requires limited service pregnancy resource centers to display a sign containing the following statements:

(1)  “the Center does not have a licensed medical professional on staff” and
(2)  “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider”

Plaintiff contends that this form of compelled speech is a violation of its First and Fourteenth Amendment rights. The District Court denied Tepeyac’s motion for a preliminary injunction as to statement (1), but granted the motion as to statement (2), concluding that statement (1) would pass strict scrutiny, but that statement (2) compelled unneeded speech, and thus, was not “the least restrictive means of achieving a relevant government interest.” Both parties appealed.

The Appellate Court, based on its reasoning in Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, ____ F.3d ____, No. 11-1111 (4th Cir. June 27, 2012), affirmed the District Court’s entry of preliminary injunction as to statement (2), and reversed its denial of preliminary injunction as to statement (1).

Applying strict scrutiny, the Appellate Court, like the lower court, found that statement (2) was not narrowly tailored, and thus, did not survive such scrutiny. The Appellate Court disagreed with the lower court as to statement (1); however, stating that while statement (1) is a neutral and fact-based disclosure, and thus “imposes a comparatively less severe First Amendment burden, it still amounts to an impermissible government control of speech.”

The Court noted several reasons why statement (1) could not withstand strict scrutiny. The requirement that the statement be posted conspicuously on the wall gives potential clients the impression that the pregnancy center is not to be trusted, or that it provides services inferior to those offered by medical professionals. Furthermore, the county is compelling Tepeyac, an unwilling speaker, to express that view. Statement (1) is also severely under inclusive, raising doubt that the government is actually pursuing the interest involved, as opposed to disfavoring a particular speaker or viewpoint. The county does nothing to regulate other sources for pregnancy consultation, such as the Internet, bookstores, or houses of worship, and, as such, fails “to demonstrate its commitment to advancing [the invoked interest] by applying its prohibition evenhandedly.” Furthermore, the goals of the statement (1) disclosure can be achieved through less speech-restrictive means.

In summary, the Appellate Court affirmed that portion of the District Court’s order that grants Tepeyac’s motion for a preliminary injunction and reverses that portion that denies Tepeyac’s requested preliminary injunction.

Judge King wrote separately in dissent noting that decisions by the lower court regarding injunction requests should be given deference and reversed only where the record shows an abuse of discretion. King did not agree with the majority that the District Court abused its discretion in this case.

Furthermore, King did not agree with the majority’s view that statement (1) conveys the subjective message that the pregnancy center is not to be trusted, or that it provides services inferior to medical professionals. Instead, King would attribute the statement its plain and ordinary meaning.

Additionally, King did not agree with the majority’s view that statement (1) was under inclusive and viewpoint discriminatory, such that it was not narrowly tailored enough to pass strict scrutiny. King pointed out that the majority gave no indication that its suggestions for less restrictive alternatives would actually be less restrictive or as effective as the mandated statements.

In summary, Judge King found that the District Court did not abuse its discretion and thus would affirm the ruling, recognizing that the lower court should be given deference, and that injunction requests are extraordinary remedies to be granted only in limited circumstances.

Full Opinion

-Kassandra Moore

United States v. Sowards, No. 10-4133

Decided: June 26, 2011

On appeal, Sean C. Sowards argued that the district court erred in denying his motion to suppress because the police lacked probable cause to initiate a traffic stop based exclusively on an officer’s visual estimate – uncorroborated by radar or pacing and unsupported by any other indicia of reliability – that Sowards’s vehicle was traveling 75 miles per hour (mph) in a 70 mph zone.  The Court of Appeals agreed, reversing and remanding the case.

Deputy James Elliott stopped Sowards for speeding on North Carolina I-77 after visually estimating that Sowards’s vehicle was traveling 75 mph in a 70 mph zone.  During the traffic stop, Deputy Elliott’s drug detection dog signaled the possible presence of a controlled substance, and subsequently 10 kilograms of cocaine were found in Sowards’s car.  Before trial, Sowards moved to suppress the evidence on the basis that Deputy Elliott lacked probably cause to initiate the traffic stop in violation of the Fourth Amendment.  At the suppression hearing Deputy Elliott testified that he had been certified three different times in the use of radar equipment in North Carolina, and as a condition of obtaining certification he was required to visually estimate the speed of twelve different vehicles and have his estimates verified with radar.  To pass the test, Deputy Elliott could not be off by more than 12 mph on any one vehicle and could not exceed 42 mph off for all twelve vehicles.  Deputy Elliott also testified that he did not attempt to verify his visual speed estimate with his radar unit.  His testimony revealed that he had great difficulty with measurements.  The district court denied Sowards’ motion to suppress and finding that Deputy Elliott had probable cause to initiate the traffic stop because he was trained to estimate speeds and his difficulty with measurements was immaterial to his estimate of speed as it did not depend on time or distance.   Sowards subsequently entered a conditional guilty plea, reserving the right to appeal any issues related to the suppression motion, and filed a timely notice of appeal.

On appeal, the sole issue was whether Deputy Elliott’s traffic stop of Sowards’s vehicle was supported by probable cause in order for the district court to have properly denied Sowards’s motion to suppress the evidence seized from the car as a result of the traffic stop.  The Court of Appeals reviews the district court’s legal determinations de novo and its factual determinations for clear error, where a factual finding may only be reversed it the reviewing court is left with the definite conviction that a mistake has been committed.  The evidence must be construed in the light most favorable to the prevailing party below, the Government.

The Fourth Amendment guarantees freedom against unreasonable searches and seizures.  When a police officer stops an automobile and detains the occupants briefly, the stop amounts to a seizure within the meaning of the Fourth Amendment.  The underlying command of the Fourth Amendment is that searches and seizures be reasonable.  Generally, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.  Probable cause exists if, given the totality of the circumstances, the officer had reasonably trustworthy information sufficient to warrant a prudent person in believing that the petitioner had committed or was committing an offense.

The Court of Appeals began its inquiry with whether, under the totality of the circumstances, Deputy Elliott had reasonably trustworthy information to support a prudent person’s belief that Sowards was speeding.  The majority held based on the record that: first, it was error for the district court to find that Deputy Elliott was trained to estimate speeds, because he was trained to use a radar unit; and second, it was clear error for the district court to find that Deputy Elliott’s difficulty with measurements was immaterial to his estimate of speed.  Despite these two erroneous factual findings, the district court held that Deputy Elliott’s visual speed estimate alone served as probable cause for Deputy Elliott to stop Sowards’s vehicle.  The Fourth Circuit majority held that the Fourth Amendment does not support the proposition that an officer’s visual speed estimate alone will always suffice as a basis for probable cause to initiate a traffic stop.  Furthermore, the reasonableness of an officer’s speed estimate depends on whether a vehicle’s speed is estimated to be in significant excess or slight excess of the legal speed limit, and if slight, additional indicia of reliability such as radar or pacing methods are required to support the reasonableness of the officer’s visual estimate.  The majority further held that in the absence of additional indicia of reliability, an officer’s visual approximation that a vehicle is traveling in slight excess of the legal speed limit is merely a guess and lacks the foundation to provide an officer with reasonably trustworthy information to initiate a traffic stop.  Concluding that Deputy Elliott’s visual speed estimate was merely a guess, the majority held it was not an objectively reasonable basis for probable cause to initiate a traffic stop and therefore the seizure was constitutionally unreasonable and all evidence gathered pursuant to the search must be suppressed, reversing the district court’s holding.

Writing separately in dissent, Judge Traxler expressed his disagreement with the majority’s holding that “an officer working along and without radar cannot even pull the car over for a warning as long as the driver is reasonably believed to be only breaking the law slightly as opposed to significantly.”  Judge Traxler further expressed his opinion that the facts and circumstances known to Deputy Elliott, along with his practical experience in traffic enforcement, training and reasonable inferences, were more than sufficient to warrant an objectively reasonable belief that Sowards was speeding.  Judge Traxler also stated his disagreement with the majority’s holding that an officer should have to corroborate his visual estimate with additional indicia of reliability if the estimate was only slightly in excess of the speed, opining that adopting an absolute rule requiring corroborating evidence was unwarranted and unsupported by case law.

Full Opinion

-Nora Bennani

McBurney v. Young, No. 11-1099

Decided: February 1, 2012

Two men sued the Commonwealth of Virginia when their unrelated Freedom of Information requests were denied by the state. The Virginia statute states that only citizens of the Commonwealth have access to the information. Mark McBurney, a citizen of Rhode Island, sought government records regarding a child support dispute against his ex-wife. Roger Hurlbert, from California, sought tax assessment records for his real estate business. When their claims were denied, both men sued under the Privileges and Immunities Clause of the Constitution and Hurlbert brought a claim under the Dormant Commerce Clause arguing that the law prevented him from doing business in Virginia. The district court granted summary judgment for Virginia and both men appealed.

The Fourth Circuit affirmed the granting of summary judgment on the Privileges and Immunities claims. The court recognized that the statute, in practice, had a negative effect on Hurlbert’s ability to pursue his common calling. However, the infringement was incidental, amounted to little more than an annoyance to doing business in Virginia, and did not actually prevent so doing. The court also drew a distinction between McBurney’s right to access the courts of Virginia—which would be protected—and a right “to advocate for his interests” that the Privileges and Immunities Clause has never encompassed.

The court also affirmed the rejection of the Dormant Commerce Clause argument by Hurlbert. Such analyses fall under one of two “tiers.” The more stringent, enumerated in Sierra Club, prevents discriminating against out-of-state businesses for the purpose of protecting or propping-up in-state business. Because the Virginia FOIA statute had no intent to burden foreign business in the state, and any negative effects were incidental, Hurlbert was not entitled to the stricter analysis from Sierra Club. Moreover, because Hurlbert did not challenge the district court’s use of the less stringent Pike balancing test in his appellate brief, the argument was waived and the decision below stands.

Full Opinion

-C. Alexander Cable

Sennett v. United States, No. 11-1421

Decided: January 30, 2012

Laura Sennett, a photojournalist specializing in covering protests, sued the United States for a violation of the Privacy Protection Act (PPA) when officers conducted surveillance of her home and seized her property pursuant to a search warrant while investigating a violent protest outside the Four Seasons hotel in Washington, D.C. The district court granted summary judgment to the United States, citing the “suspect exception” to the PPA whereby officers investigating criminal activity may conduct searches when probable cause is present.

The Fourth Circuit affirmed. Rejecting Sennett’s arguments that she had innocent explanations for her involvement with the protest—namely photographing it—and that the decision not to file charges against her showed she had done nothing wrong, the court emphasized that probable cause determinations are made based on the totality of the circumstances and for the purpose of furthering criminal investigations. A later determination that a person is innocent does not retroactively defeat probable cause and the government was properly entitled to summary judgment based on the “suspect exception” to the PPA.

Full Opinion

-C. Alexander Cable

United States v. Gaines, No. 11-4032

Decided: January 28, 2012

The district court granted Travis Gaines’ motion to suppress a firearm seized by police following an unlawful stop of a vehicle in which he was a passenger, on the grounds that the firearm was “fruit of the poisonous tree.” The government appealed, contending that intervening events such as acts of assault and resisting arrest committed by Gaines purged the illegality of the stop and rendered the firearm admissible. However, although the firearm was not physically seized until after Gaines struck the officers, the gun was discovered prior to Gaines’ act of assault. The government did not cite to any case to support their proposition that the seizure of the evidence was legally more significant than the discovery of the evidence when the two acts do not coincide. Therefore, the Fourth Circuit affirmed the district court’s order granting the motion to suppress. Judge Niemeyer filed a dissenting opinion.

Full Opinion

-Sara I. Salehi

United States v. Moore, No. 10-4474

Decided: January 25, 2012

George Lamont Moore was arrested and charged as a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Although Moore was found indigent and qualified for a court-appointed attorney under 18 U.S.C. § 3006A, the court nonetheless ordered Moore to reimburse the United States for the court-appointed attorneys’ fees at a rate of $50 per month beginning sixty days after his release from prison. This order was based on the probation office’s recommendation that, because Moore had a GED and some trade skills, he would be able to pay the $50 per month after his release. Moore appealed both the imposition of the attorneys’ fee reimbursement and the underlying conviction. The Fourth Circuit held, in line with all other courts to consider the issue, that § 922(g)(1) is constitutional under the Second Amendment both on its face and as-applied; however, the court did not foreclose the possibility that a case might exist in which an as-applied Second Amendment challenge to § 922(g)(1) could succeed. The Fourth Circuit vacated and remanded the attorney fee reimbursement, finding that the mere fact of a GED and some trade skills was insufficient to show that Moore would be able to pay the $50 a month after release. Furthermore, the district court’s finding that Moore did not have the ability to pay a fine or interest weighed heavily in the Fourth Circuit’s decision to vacate.

Full Opinion

-Sara I. Salehi

Lebron v. Rumsfeld, No. 11-6480

Decided: January 23, 2012

Plaintiffs Jose Padilla, incarcerated due to a conviction for federal crimes of terrorism, and his mother, Estela Lebron, sued for legal and equitable relief based on Padilla’s prior military detention as an “enemy combatant.” Padilla claimed that as a U.S. citizen captured in the United States, he was unconstitutionally designated as an enemy combatant. Padilla alleged a range of constitutional violations stemming from his military detention, including denial of his right to counsel under the First, Fifth, and Sixth Amendments; denial of access to courts protected by Article III, the First and Fifth Amendments, and the Habeas Corpus Suspension Clause; unconstitutionally cruel conditions of confinement in violation of the Fifth and Eighth Amendments; coercive interrogations in violation of the Fifth and Eighth Amendments; denial of his freedom of religion under the First Amendment and the Religious Freedom Restoration Act; denial of access to information protected by the First Amendment; denial of freedom of association under the First Amendment; and general denial of due process protected by the Fifth Amendment. Padilla sought a declaration that defendants’ policies were unconstitutional, an order enjoining his future designation as an enemy combatant, and nominal damages. The district court dismissed, and Padilla appealed. The Fourth Circuit affirmed, finding generally that Padilla’s claims were without merit.

Full Opinion

-Sara I. Salehi

United States v. Carter, No. 09-5074

Decided: January 23, 2012

Benjamin Carter conditionally pleaded guilty to possessing a firearm while being an unlawful user of marijuana in violation of 18 U.S.C. § 922(g)(3). Carter’s conditional guilty plea reserved for appeal the question of whether his § 922(g)(3) conviction violated his Second Amendment right to keep and bear arms. The Fourth Circuit concluded that, under the intermediate scrutiny standard, Congress had an important objective for enacting § 922(g)(3) in reducing gun violence, and that the statute might have reasonably served that objective by disarming drug users. However, the court held that the government did not meet its burden of demonstrating that there was a reasonable fit between the statute and the governmental objective of reducing gun violence. Therefore, the Fourth Circuit vacated and remanded the case.

Full Opinion

-Sara I. Salehi

United States v. Venable, No. 11-4216

Decided: January 18, 2012

Gary Wayne Turner and Michelle Lynn Zechmann burglarized a home and stole eleven firearms. Turner was charged with burglary, grand larceny, and being a felon in possession of a firearm—all under state law—and cooperated with officers by admitting to the crime and showing officers where he had sold several of the guns: the home of an African American male named “James.”

Officers approached the residence of James Venable and, after Venable was assured he would not be arrested for the firearms, entered the home and retrieved the stolen guns. The next day, officers went to Zechmann’s home to arrest her on the same state law charges. However, Venable arrived and began shouting and causing a scene, including stating that he had just been released from the local penitentiary. This lead to an investigation of Venable’s criminal history and a subsequent arrest as a felon in possession of a firearm.

Both Zechmann and Turner pleaded guilty to the state law charges; Turner was sentenced to serve time in prison but Zechmann’s sentence was suspended with an agreement to seek rehabilitation and a promise of good behavior. Venable’s case, however, was referred to the local U.S. Attorney who in turn charged him with a federal crime for being a felon in possession of a firearm.

Venable was black; Zechmann and Turner were white. Thus, Venable filed for dismissal of the federal indictment as racially motivated in violation of the Fifth Amendment and for discovery as to the government’s decision to prosecute him under federal law rather than state law. Despite a presentation of various statistics showing a sizable disparity between charges along racial lines, the district court found that Venable had not met the burden to establish a potential selective prosecution claim and denied his motions.

To satisfy the high burden required to show selective prosecution, “a defendant must ‘establish both (1) that similarly situated individuals of a different race were not prosecuted, and (2) that the decision to prosecute was invidious or in bad faith.’” Applying its reasoning from United States v. Olvis, 97 F.3d 739 (4th Cir. 1996), the Fourth Circuit held on appeal that Venable did not show that he and the white defendants were similarly situated. The court noted that while Zechmann and Turner were charged by county authorities, Venable was arrested by city police who then chose to refer his case to federal prosecutors. Also, though Venable provided statistical data showing that African Americans were charged federally at a staggeringly higher rate than Caucasians, he did not show that his particular prosecution was “invidious or in bad faith.” His conviction was therefore affirmed.

Full Opinion

-C. Alexander Cable

United States v. Ramos-Cruz, No. 08-4647

Decided: January 18, 2012

Israel Ramos-Cruz, a citizen of El Salvador, came to America in 1999 and became a member of the infamous MS-13 gang, eventually rising to become a leader of one of its local cliques, the Sailors Locotes Salvatruchos Westside or “Sailors.” After a gang fight occurred in a member’s home, Ramos-Cruz was involved in the cover up, which included the murder of a fellow member because that person had threatened to go the police. Later, and ostensibly not directly related to the murder, ATF agents working alongside local police stormed Ramos-Cruz’s home and found a number of weapons.

At trial, the district court allowed two witnesses to testify under pseudonyms for fear of their safety if their true identities were revealed to the MS-13 members. The court also allowed testimony from the government to show that Ramos-Cruz was in the country illegally and did not allow Ramos-Cruz’s immigration attorney to testify as to his temporary protected status (TPS) application. Finally, after the close of arguments, the court provided the jury with instructions about aiding and abetting the commission of a murder with intent to prevent communication with law enforcement, stating specifically that “[t]he [g]overnment does not have to prove that the person specifically intended to interfere with a federal investigation. All the statute requires is that the [g]overnment establish that at the time the person engaged in obstructionist conduct, he had the intent to influence an investigation that eventually happened to be federal and that the investigation involved the possible commission of a federal crime.” The district judge also instructed the jury that a person with a pending TPS application is considered to be in the country illegally. The jury returned a guilty verdict and Ramos-Cruz was sentenced to life in prison, plus 35 years.

Ramos-Cruz appealed the jury instructions about aiding and abetting liability for murder with the intent to prevent communication with law enforcement, his conviction as an illegal alien in possession of a firearm, the decision to allow witnesses to testify without revealing their identities, and the probable cause determination to allow officers to raid and search his home.

The Fourth Circuit found the jury instruction regarding the murder to be insufficient under Fowler v. United States, 131 S. Ct. 2045 (2011), wherein the Court held that the government must show a reasonable likelihood that the victim would have spoken to federal officers had he or she not been killed to prevent it. Nevertheless, though the instruction itself did not conform with Fowler, the court held that the evidence did tend to show a reasonable likelihood—and noted that this showing need not be beyond a reasonable doubt—of communication with authorities and the error was therefore harmless.

Next, the court did not address whether a person with a valid, pending TPS application is in the country illegally. However, it affirmed Ramos-Cruz’s conviction on this count because the evidence by the government was enough to support a finding by the jury that the defendant’s application had been denied.

Additionally, the court affirmed the decision to allow the witnesses to testify under pseudonyms because the government showed an actual threat to their safety if their identities were revealed. Indeed, this Circuit had addressed—albeit in an unpublished opinion—this very issue involving the exact same witnesses and facts against a different defendant and held there that the identities could be protected.

Finally, the court rejected the argument that officers had no probable cause to search his home. The affidavit provided to obtain a warrant showed Ramos-Cruz to be a member of MS-13 and, based on training and experience of the officers involved, likely to keep graffiti-creating materials in his home.

Judge Floyd concurred in the judgment of the court but declined to join the majority’s opinion regarding the decision to allow witnesses to testify under pseudonyms. Judge Floyd recognized the safety concerns for the witnesses but found the Sixth Amendment right to Confrontation too strong to overcome and that by not allowing the defense to obtain necessary background information about the witnesses, Ramos-Cruz’s defense was incapable of performing a sufficient cross-examination or impeachment.

Full Opinion

-C. Alexander Cable

LeSueur-Richmond Slate Corporation v. Fehrer, No. 11-1112

Decided: January 13, 2012

LeSueur-Richmond Slate Corporation appealed the dismissal of its action against Defendants-Appellees, mineral inspectors for the Virginia Department of Mines, alleging Fourth Amendment violations in conjunction with warrantless searches of LeSueur-Richmond’s mining facility. The Department administers Virginia’s Mineral Mine Safety Act, which, in pertinent part, provides for the warrantless administrative inspections of surface mines to respond to complaints of violations of the Act. After receiving anonymous tips that the mine was not in compliance with Virginia regulations, defendants conducted approximately twenty-five warrantless inspections of LeSueur-Richmond’s mining operation and issued thirty-two violations against LeSueur-Richmond. LeSueur-Richmond filed a § 1983 action against defendants, claiming that the Department’s warrantless investigations violated both the federal and state constitutions. Defendants filed a motion to dismiss, and the district court granted the motion on the grounds of qualified immunity and failure to state a claim. The Fourth Circuit Court of Appeals found that the Act was constitutional. Further, the Court held that under the Fourth Amendment a party may challenge both the constitutionality of the Act permitting warrantless searches as well as the conduct of the government officials in a particular case. However, the Court found that the mine inspectors’ conduct was constitutional because the searches were objectively supported by multiple complaints to which the inspectors were responding and there was no indication that the inspections were a pretext for harassment or other improper conduct. Thus, the Court dismissed LeSueur-Richmond’s complaint for failure to state a claim upon which relief may be granted. Moreover, because there was no constitutional violation, defendants were protected by qualified immunity. Therefore, the district court’s decision was affirmed.

Full Opinion

-Sara I. Salehi

United States v. Jones, No. 10-4442

Decided: January 13, 2012

Defendants Kipling J. Jones and Rebecca L. Jones, husband and wife, appealed their convictions for conspiracy to manufacture, distribute, and dispense, and to possess with intent to distribute and dispense, methamphetamine. The court affirmed the denial of defendants’ motions to suppress evidence, but vacated Mr. Jones’ sentence of 262 months in prison and remanded. The Jones’ filed nearly identical motions to suppress the evidence seized from the Jones residence on the ground that the warrantless protective sweep that led to the discovery of evidence in plain view and provided probable cause for the search warranted violated the Fourth Amendment. The Joneses argued the sweep violated the Fourth Amendment because the authorities did not possess a sufficient factual basis for a reasonable suspicion that there were other individuals in their residence who could pose a danger to the officers in connection with their arrest of Kipling Jones. The Fourth Circuit Court of Appeals disagreed, and found the sweep constitutional. Prior to oral arguments in the appeals, the government conceded that Kipling Jones’s sentence was procedurally unreasonable and should be vacated and remanded. Therefore, the Fourth Circuit vacated Kipling Jones’s sentence and remanded for resentencing.

Full Opinion

-Sara I. Salehi

Lee-Thomas v. Prince George’s County Public Schools, No. 10-1699

Decided: January 11, 2012

Hope Lee-Thomas, an employee of the Prince George’s County Public School Board, alleged that the Board violated the Americans with Disabilities Act by failing to reasonably accommodate her hearing disability. The Board contends that the district court erred in deferring to the decision of the Court of Appeals of Maryland in Board of Education of Baltimore County v. Zimmer-Rubert on the question of whether the immunity provision state, which effectuated a waiver of a county board of education’s Eleventh Amendment immunity for all claims in the amount of $100,000 or less, waived the State’s Eleventh Amendment immunity. The Board posits that no such deference is owed because the question is one of federal law, on which the decisions of the Supreme Court of the United States are controlling. The Fourth Circuit Court of Appeals determined that, although federal courts must apply federal law as embodied in Supreme Court precedent, when a state’s highest court has applied federal law and determined that a state statute effects a waiver of Eleventh Amendment immunity, the federal courts must accord deference to that state court decision. Therefore, the Fourth Circuit affirmed, and held that the district court properly deferred to the decision of the Court of Appeals of Maryland.

Full Opinion

-Sara I. Salehi

United States v. Timms, No. 11-6886

Decided: January 9, 2012

The Government appeals from the judgment of the district court dismissing the Government’s action to civilly commit Gerald Wayne Timms as a “sexually dangerous person” under 18 U.S.C. § 4248. The district court held that the statute, as applied to Timms, violated the Due Process and Equal Protection Clauses of the United States Constitution. Timms cross-appealed, asserting additional grounds upon which § 4248 should be found unconstitutional. The Fourth Circuit Court of Appeals reversed the district court’s judgment on the grounds that the Government raised, affirmed as to the grounds Timms raises, and remanded for the district court to determine whether Timms satisfied the criteria for commitment as a “sexually dangerous person.”

Full Opinion

-Sara I. Salehi

United States v. Chapman, No. 10-5071

Decided: Jan. 4, 2012

Ronald Chapman entered a conditional guilty plea to a charge of being in possession of a firearm in violation of a domestic violence protection order (DVPO). After being sentenced to time served and supervised release, Chapman appealed, seeking to dismiss the indictment as an as-applied violation of his Second Amendment right to bear arms.

The Fourth Circuit affirmed the conviction. Analyzing the issue under recent Circuit precedent, United States v. Chester, 628 F.3d 673 (4th Cir. 2010); United States v. Staten, 2011 WL 6016976 (4th Cir. Dec. 5, 2011), and a recent Tenth Circuit decision, the court held that the challenge would be evaluated under intermediate scrutiny. Moreover, using the Chester approach, the court did not decide whether the challenged law imposed on a burden on Chapman’s constitutional rights because even if that step had been satisfied, the second question would nevertheless be resolved in favor of the government. There is a substantial governmental interest in reducing domestic gun violence. Furthermore, the restriction was a “reasonable fit” to effect the government’s purpose, especially when the violator was subject to a court order issued after a proper hearing. Finally, the court emphasized that though the net cast by the statute was potentially over-inclusive, the law need only be a reasonable fit—not a perfect one.

Full Opinion

-C. Alexander Cable

United States v. Jaensch, No. 10-5013

Decided Dec. 29, 2011

Richard Jaensch was convicted of using a false identification that “appear[ed] to be” issued by the United States government, a violation of 18 U.S.C. § 1028(a)(1). Specifically, Jaensch created an ID that declared him to be a diplomat subject to “Absolute Sovereignty” in the United States, including bypassing TSA security checkpoints at airports.

Jaensch appealed his conviction, claiming that the statute criminalizing his behavior was unconstitutionally vague because of the “appears to be” language of the statute. However, the Fourth Circuit rejected this argument because such inquiries are done as “as applied” challenges and given Jaensch’s mens rea in producing and using what he knew to be a false ID, the statute was not unconstitutional as applied to his circumstances. Moreover, the court affirmed the use of the “reasonable person” standard to determine whether the ID “appears to be” issued by the government.

Also, Jaensch appealed the district court’s denial of a Rule 29 Judgment of Acquittal. He argued that after a mistrial the government is not a prevailing party and therefore all evidence should be interpreted in a light most favorable to defendant. In a matter of first impression for the Circuit, the court disagreed and followed the Eleventh Circuit precedent of drawing conclusions in favor of the government for a Rule 29 motion regardless of whether it occurs after a jury conviction or mistrial. The court also disagreed with Jaensch’s arguments that his ID did not appear official, that the proper venue was not the Eastern District of Virginia, or that the government did not sufficiently prove that he was the one that produced it. Finally, the court held, following its own recent precedent, that aiding and abetting liability need not be separately alleged on a criminal complaint. With all of Jaensch’s arguments on appeal defeated, his convictions were affirmed.

Full Opinion

-C. Alexander Cable

United States v. Edwards, No. 10-4256

Decided Dec. 29, 2011

Officers detained Joseph Edwards on a public street when his ex-girlfriend filed a complaint with the police that he had threatened her with a firearm earlier in the evening. Though the encounter was calm and neither party, the officers nor the defendant, seemed to have any reason to fear an altercation, Edwards was placed in handcuffs for the safety of the officers and the police performed a pat-down search of Edwards’ person that yielded no results. Once an arrest warrant for the assault charge had been issued, a police transport arrived to take Edwards into custody. However, officers decided to perform another search. This time, still on a public street, officers removed Edwards’ pants and underwear and noticed a plastic bag filled with white crystals tied around his genitals. Officers then used a knife to cut the baggie off Edwards.

On appeal from Edwards’ conditional plea of guilty, the Fourth Circuit vacated his conviction and remanded the case with orders to suppress the evidence. The court found the search to be a strip search and analyzed it under the factors laid in out Bell v. Wolfish: “1) the place in which the search was conducted; 2) the scope of the particular intrusion; 3) the manner in which the search was conducted; and 4) the justification for initiating the search.” 441 U.S. 520 (1979).

First, the strip search was conducted on a public street. Second, the drugs were removed from Edwards’ body in an unnecessarily dangerous and fearful manner. Finally, though the court recognized that the search inside Edwards’ underwear may have been justified because of the threat of a firearm, once the substance inside the underwear was found—and found not to be a weapon—the officers were not then justified in continuing the search in such a dangerous manner. In order to deter further Fourth Amendment violations, then, the court found that exclusion of the evidence was the best remedy.

Judge Diaz dissented. He recognized that the search was performed in public but disagreed that the manner of retrieving the contraband was unreasonable. Just because Edwards hid the drugs in an unusual and sensitive location, Diaz asserted, does not remove officers of their authority and duty to seize obviously visible contraband during a search incident to a lawful arrest. Also, even if the search were unreasonable, Diaz doubts the deterrent effect of excluding this evidence and suggested that other remedies, perhaps a § 1983 claim, would be more appropriate.

Full Opinion

-C. Alexander Cable

United States v. Summers, No. 06-5009

Decided Dec. 16, 2011

Kevin Summers fled from police after being questioned about a shooting close to where he was standing at the time of the officers’ arrival on the scene. During the chase, Summers dropped his black jacket. Once in custody, however, police recovered the jacket along with the gun, ammunition, and crack cocaine inside.

At trial, the government called police witnesses to verify that the jacket belonged to Summers and was recovered at the scene. The prosecution also called Brendan Shea, the investigator responsible for performing and evaluating DNA tests on the jacket. Though the jacket had been processed through the “standard routing and inventory process,” there was uncertainty in the tracking of the jacket between the time Summers was arrested, Shea’s staff performed the tests, and trial. Summers introduced an internal log documenting who had accessed the jacket and called attention to the fact that others besides Shea had worked on it. Indeed, Shea could not testify with certainty that the jacket he tested and that was admitted into evidence was the jacket police took from Summers. Despite this, a jury convicted Summers for being a felon in possession of a firearm and possession with intent to distribute crack cocaine.

Summers appealed, claiming that his Confrontation Clause rights had been infringed because he was not able to cross-examine the lab technicians that handled and processed the jacket. However, following Crawford and subsequent precedent from both the Circuit and Supreme Court, the Fourth Circuit held that though the government may be required to produce live witnesses to establish a chain of custody, this requirement is nullified if the defense presents such evidence itself.

Moreover, where Shea explained and drew conclusions based on the work of subordinates and evaluated both the process and results of tests performed, he qualified as an expert to testify to a reasonable degree of scientific certainty that the jacket belonged to Summers. Also, where there is an issue of mishandling evidence or problems with equipment, it may be incumbent upon the defense to advise the prosecution of the need to secure necessary witnesses; otherwise, bringing the claim first on appeal may appear to be gamesmanship and not a legitimate argument. Finally, introducing the forensic examiner’s report itself may be error, but it was harmless in this case because the report was almost “wholly cumulative” of the examiner’s testimony in court.

Judge Floyd concurred in the judgment of the court but noted that the principle of constitutional avoidance should have precluded the court from reaching the merits of the Confrontation Clause argument where there are independent grounds upon which to base its judgment.

Full Citation

-C. Alexander Cable

United States v. Glover, No. 10-4462

Decided: Dec. 12, 2011

The Fourth Circuit Court of Appeals affirmed the district court’s denial of Paul Glover’s motion to suppress evidence obtained during a stop-and-frisk in a deserted gas station parking lot in the early hours of the morning. The court held that the police officers had a reasonable suspicion that Glover was planning to commit an armed robbery. There was a high degree of crime in the area and it was at a late hour. The gas station itself was the particular target of criminal activity. Glover was clearly not buying gas or anything else from the gas station and exhibited nervous, evasive behavior; especially after seeing the police officers. Therefore, this was sufficient reasonable suspicion and did not violate Glover’s Fourth Amendment rights. The court thus affirmed the judgment.

Full Opinion

-Sara I. Salehi

United States v. Wellman, No. 10-4689

Decided: Dec. 7, 2011

John Wellman was convicted of three offenses related to his possession of child pornography. He challenges his conviction on the grounds that the search warrant that led to his arrest was invalid, that a jury instruction was erroneous because it lacked a knowledge requirement, and that his sentence was imposed in violation of the Eighth Amendment prohibition against cruel and unusual punishment. The Fourth Circuit Court of Appeals affirmed Wellman’s convictions and sentences. The court declined to impose a requirement that a search warrant application involving child pornography include an image of the alleged pornography. Furthermore, the jury instruction was not erroneous for failure to include a knowledge requirement because the jury was not required to find that Wellman knew that the images at issue were obscene. Finally, the court held that the ten-year sentence did not constitute a de facto life sentence given Wellman’s age of 68 years and was not a violation of the Eighth Amendment.

Full Opinion

-Sara I. Salehi

United States v. Montieth, No. 10-4264

Decided Dec. 5, 2011

Appellant Kwan Montieth was convicted of using and carrying a firearm in relation to a drug trafficking crime. Montieth appeals from the district court’s denial of his motion to suppress physical evidence recovered in the search of his residence and statements he made to the police. The Fourth Circuit affirmed the district court’s judgment. The Court found that the search warrant was issued based on probable cause supplied by the warrant affidavit. The affidavit stated that a trash pull at Montieth’s revealed extensive evidence of marijuana trafficking and bills addressed to Montieth, corroborating that the trash belonged to him. The affidavit also described with particularity the residence to be searched and the items expected to be seized. The Court also was unpersuaded by Montieth’s claims that the traffic stop and detention violated the Fourth Amendment, and found that it was a valid Terry stop. Further, Montieth’s admission that he had marijuana at his house before he was told his Miranda rights was admissible under Rhode Island v. Innis.

Full Opinion

-Sara I. Salehi

United States v. Powell, No. 08-4696

Decided: Nov. 14, 2011

Obie Lee Powell was Terry frisked by an officer during a routine traffic stop of a vehicle in which he was a passenger. During the patdown, officers found crack cocaine and a firearm on his person. He was charged with possession with intent to distribute crack cocaine, possession of a firearm by a convicted felon, and possession of a firearm in furtherance of a drug trafficking crime. Powell moved to suppress the evidence of the search as the product of an illegal search in violation of the Fourth Amendment. The district court denied the motion and Powell was convicted of simple possession of crack cocaine by a jury.

On the night of the incident, Powell was riding in the back seat of the pulled-over car. The officers were running the license and registration of the driver and discovered the driver’s license was suspended. Officers asked the other passengers, including Powell, if they had licenses—ostensibly so that someone else could drive the car once the traffic stop was over. When officers ran Powell’s license they saw that it was also suspended and that Powell had “priors” for armed robbery. The system did not inform officers whether the “priors” were recent or fifteen years old; nor did the system state whether the “priors” were convictions or mere arrests that ended in exoneration. Nonetheless, Powell was removed from the car and patted down. At this point, he became very nervous and attempted to flee but was captured.

The Fourth Circuit vacated the conviction. It found that the “caution data” informing the officers of Powell’s “priors” was relevant, but not dispositive, to establishing the reasonable suspicion necessary to Terry frisk a person. Based on the information given to the officers, they could conceivably stop and search any person who had ever been charged (much less convicted) of a crime at any point in the past without any further justification. Moreover, Powell’s supposed misrepresentation to officers that his license was valid when it was in fact suspended gave no weight to officers’ assertion that Powell may have been armed and dangerous. Indeed, the stop had been amicable and uneventful at all times before the patdown began. The officers, then, had no reasonable suspicion that Powell was armed and dangerous or presented any threat to their safety.

Full Opinion

-C. Alexander Cable

United States v. Cabrera-Beltran No. 10-4084

Decided: Nov. 10, 2011

Leopoldo Cabrera-Beltran was convicted of conspiracy to import and distribute cocaine and heroin. Defendant appealed on multiple grounds, and the Fourth Circuit affirmed. First, defendant contended that his rights under the Sixth and Fourteenth Amendments were violated when the district court struck three Spanish-speaking prospective jurors during voir dire. The three prospective jurors indicated an ability to understand Spanish language, and an unwillingness to accept the English translations of the Spanish testimony and documents. The Fourth Circuit held that this was not an abuse of discretion. Next, defendant contended that the admission of Treasury Enforcement Communication System records to show that the defendant and other co-conspirators crossed the border on certain dates and in certain vehicles violated his Sixth Amendment Confrontation Clause right to cross-examine the border patrol personnel who produced the information and statements contained in those records. The Fourth Circuit held that Treasury Enforcement Communication System records are not testimonial and rejected defendants’ argument. The defendant’s third argument was that because the jury found defendant guilty of the cocaine offenses in an amount less than that alleged in the indictment, this amounted to a variance that required reversal. The court concluded there was no variance, explaining that a defendant charged with conspiracy to import or distribute an amount of a controlled substance can be convicted of one of the lesser included offenses based on a smaller amount of the substance. The defendant alleged that the indictment was defective, but this allegation was waived because defendant failed to provide a showing of good cause. Defendant argued that the testimony of witnesses was vague, however there was no error here. Further, the Fourth Circuit held that the testimony of a witness who bought heroin from the defendant was admissible under FRE 404(b) as relevant to prove knowledge and intent. Finally, the defendant argued that calculation of drug quantity was incorrect and the sentencing enhancement for defendant’s “aggravating role” in the conspiracy should not have been applied. The court said that any error in calculation was harmless and that the sentencing enhancement was properly applied.

Full Opinion

-Sara I. Salehi

Liberty University, Inc. v. Geithner, No. 10-2347

Decided: Sept. 8, 2011

The plaintiffs, Liberty University and two individuals, brought suit seeking to enjoin the Secretary of the Treasury from enforcing the “individual” and “employer mandates” in the recently passed Patient Protection and Affordable Care Act (“Act”), also known as “Obamacare,” that require purchasing healthcare coverage. The individuals argued that they had made a conscious choice not to purchase healthcare and the mandate to do so was an unconstitutional penalty couched as a tax. Liberty argued that several of its employees would be eligible for tax credits or cost-sharing reductions under the Act which would subject the employer to “assessable payments” and cause undue financial hardship for the University by means of improper and unconstitutional taxation. The district court held that the exactions were not taxes; it also held that the Act was a valid exercise of Congress’s Commerce Clause powers and dismissed the action.

The Fourth Circuit vacated and remanded with instructions to dismiss the case for lack of subject-matter jurisdiction. Foregoing a Commerce Clause analysis, the majority found that the Act should be evaluated under Congress’s taxing power. The Anti-Injunction Act (“AIA”) states that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” I.R.C. § 7421(a). Where applicable, this statute strips the Circuit court of subject-matter jurisdiction. Indeed, the courts have applied the AIA even in cases where the supposed tax was alleged to be something other than a traditional “tax” as provided by the Constitution.

In concurrence, Judge Wynn wrote that on the merits the law should be upheld as constitutional under Congress’s plenary taxing power. Taxes must possess three characteristics in order to be constitutional: they must bear some reasonable relation to raising revenue, must be imposed for the general welfare, and must not infringe on other constitutional rights. Finding these conditions met, Wynn would uphold the constitutionality of the Act. However, concluding the taxes are valid requires a finding that the exactions are in fact taxes and therefore subject to the AIA’s jurisdiction-stripping provision.

Judge Davis dissented. He followed the holdings of the Sixth and Eleventh Circuits, finding that the AIA was inapplicable under a “labeling” theory of statutory interpretation; specifically, the AIA applies to taxes while the Affordable Care Act assesses penalties. Since Judge Davis believed the AIA should not apply to strip the court of jurisdiction, he felt free to reach the merits of the Act and felt it should be evaluated under a Commerce Clause analysis. Judge Davis would uphold the Act, finding uninsured healthcare costs have a substantial effect on commerce and finding no merit to the distinction between regulation of economic “activity” vs. “inactivity.”. Finally, he found no merit to the First Amendment objections to the Act, declaring it a neutral law of general applicability.

Full Opinion

-C. Alexander Cable

Virginia ex rel Cuccinelli v. Sebelius, No. 11-1057

Decided Sept. 8, 2011

When President Obama signed the Patient Protection and Affordable Care Act (“Act”), also known as “Obamacare,” into law, the state of Virginia responded by passing the Virginia Health Care Freedom Act (“VHCFA”) stating that, with exceptions, no resident of Virginia would be required to maintain individual health insurance. Though the contested portion of the federal Act, the so-called “individual mandate,” only applied to persons and did not directly affect the state of Virginia, Attorney General Cuccinelli argued the state nonetheless had standing to sue based on the incongruity between state and federal laws, arguing that the Act infringed on Virginia’s sovereign power. The district court agreed, finding standing and declaring the individual mandate unconstitutional.

The Fourth Circuit vacated without reaching the merits of the Act itself because it held that Virginia did not have standing to challenge the law. In order to demonstrate standing, a party must show “(1) it has ‘suffered an injury in fact’; (2) there exists a ‘causal connection between the injury and the conduct complained of’; and (3) a favorable judicial ruling will ‘likely’ redress that injury.” Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The court held that Virginia suffered no injury because the VHCFA was not an exercise of sovereign power, only a declaration serving as an attempt to immunize its citizens from what it viewed as an unfavorable federal law. Adopting Virginia’s view of standing, the court noted, would allow states to sue the federal government anytime a disagreeable law is passed merely by passing its own contrary state law. As such, the case was vacated with instructions for the district court to dismiss for lack of standing.

Full Opinion

-C. Alexander Cable

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