Fourth Circuit Survey

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Week of May 7, 2018 through May 11, 2018

United States v. Oceanic Illsabe Ltd (King 5/7/2018): The Fourth Circuit affirmed the convictions and sentences of two closely related foreign corporate entities after those entities were convicted under the 1973 International Convention for the Prevention of Pollution from Ships (“MARPOL”) and the Act to Prevent Pollution from Ships (APPS) for ignoring the waste disposal procedures required by the Acts and illegally discharging large quantities of oily pollutants into the ocean. A North Carolina jury convicted the Appellants of nine criminal offenses, and Appellants were ordered to pay over two million dollars in fines and restitutions and given a five-year probation period in which their ships are to be prohibited from using US ports. The Court found sufficient evidence on which the verdict was based to find the Appellants criminally liable for the unlawful actions of their supervisory employees under a theory of vicarious liability and found the sentence of fines and probation to be reasonable and not an abuse of the sentencing Court’s discretion. Thus, the Court rejected the Appellants challenges and affirmed the criminal judgments. Full Opinion

Nero v. Mosby (Gregory 5/7/2018): The Fourth Circuit reversed the decision of the District Court denying the defendant’s motion to dismiss, finding that a State Attorney was entitled to absolute prosecutorial immunity for actions within the scope of her prosecutorial duties, such that pending § 1983 actions against her by police officers, who were criminally prosecuted for the death of an arrestee, are barred. The Court reasoned that while prosecutorial immunity extends only to activities “immediately associated with the judicial phase of the criminal process,” the actions about which the suits against the prosecutor concern constituted advocative functions, to which immunity is extended, rather than investigation or administrative functions, to which immunity does not extend. Thus, the Court reasoned that the District Court should have dismissed the § 1983 claims, and so reversed its decision. Full Opinion

United States v. Kolsuz (Harris 5/9/2018): The Fourth Circuit affirmed the defendant’s conviction of attempted firearm smuggling, holding that a forensic search of an individual’s cell phone at an international airport based on reasonable suspicion fell within the Fourth Amendment’s border search exception, and thus did not violate any constitutional rights. While the Court noted the special privacy that should be afforded to cell phones, as addressed by the Supreme Court in Riley v. California, it concluded that it did not need to reach the question of which level of individualized suspicion the search required because the agents who conducted the search reasonably relied on precedent holding that no warrant was required. Thus, the Court affirmed the defendant’s conviction. Judge Wilkinson concurred in the judgment, arguing that the issue of reasonableness in a border search is primarily a legislative question, and thus should be left to Congress’s discretion. Full Opinion


Highlight Case

Nero v. Mosby, No. 17-1168

Decided: May 7, 2018

The Fourth Circuit reversed the decision of the District Court denying the defendant’s motion to dismiss where five police officers brought suits against a state prosecutor on grounds of malicious prosecution, defamation, and false light invasion of privacy, based on the prosecutor’s actions during her prosecution of the officers. The Court found that the prosecutor-defendant’s claim of absolute prosecutorial immunity prevented the plaintiff-officers from stating any grounds on which relief could be granted. Thus, the Fourth Circuit reversed the decision of the District Court and granted the defendant’s motion to dismiss.

The suits brought against the prosecutor by the officers arose from actions the prosecutor took during the tumultuous time after the death of a young African-American male, Freddie Gray, who died while in the officers’ custody and in need of medical care. Amidst the highly publicized incident, which lead to riots and civil unrest throughout the city of Baltimore, the prosecutor brought charges against five of the six officers involved in the current consolidated actions. The officers were prosecuted, and all were either found not guilty or had their criminal charges dismissed. Specifically, the officers now allege that their prosecution was motivated by political considerations, rather than genuine probable cause.

In finding that the prosecutor was entitled to absolute immunity in the suits against her, the Court noted that, because prosecutorial immunity protects the process, not the person, absolute immunity protection extends only to activities “immediately associated with the judicial phase of the criminal process.” Actions that fall under this designation will be protected under absolute prosecutorial immunity; for actions outside of this scope, a prosecutor will only be entitled to qualified immunity. In determining which activities are protected by absolute prosecutorial immunity, courts distinguish “advocative” functions, which receive protection under the doctrine of absolute prosecutorial immunity, and “investigative or administrative” functions, which only receive partial protection under qualified immunity.

The Court found that the prosecutor’s alleged wrongs fell “squarely under the umbrella of absolute immunity,” because the challenged conduct was within her role as an advocate. In Kalina v. Fletcher, 522 U.S. 118, 127 (1997), the Supreme Court held that prosecutorial actions that are closely related to the finding of probable cause entitle the prosecutor to absolute prosecutorial immunity for suits that arise from those acts. In so relying on Kalina, the Fourth Circuit rejected the argument that providing legal advice to police will never garner prosecutorial immunity protection, especially where, as here, that advice was rendered in preparation of initiating judicial proceedings.

Therefore, the Fourth Circuit found that the prosecutor was entitled to absolute prosecutorial immunity for the suits brought by the officers under 28 U.S.C. § 1983. Similarly, the Court found that the common law doctrine of prosecutorial immunity barred the officers’ suits based on defamation and false light invasion of privacy. Thus, the Court found that “none of the Officers’ claims can survive the motion-to-dismiss stage.”

The Fourth Circuit reversed the decision of the District Court and dismissed the actions against the prosecutor.

Full Opinion

Wilson Daniel