Fourth Circuit Survey

Please Select Week:

Week of December 4, 2017 through December 8, 2017

Rory Flynn v. SEC (Wynn 12/7/2017): The Fourth Circuit held that a plaintiff’s disclosure of alleged employer misconduct is not protected by the Whistleblower Protection Enhancement Act (the “Act”), 5 U.S.C. § 2302(b)(8), if a disinterested person in the whistleblower’s position could not tell a rule was violated. Further, the court held that the Administrative Law Judge did not appropriately analyze the other rule the plaintiff alleged was violated. Therefore, the court denied in part, granted in part, and remanded for further proceedings. Full Opinion

Bate Land Company LP v. Bate Land & Timber LLC (Duncan 12/6/2017): The Fourth Circuit held that an appeal of a bankruptcy court’s confirmed reorganization plan is not equitably moot when the additional recovery requested does not interfere with the recovery of any other creditor. Further, the court held that the bankruptcy court’s determination of the indubitable equivalence of appellant’s claim was thorough and not arbitrary. Therefore, the court reversed the district court’s dismissal of the appeal and affirmed the judgment of the bankruptcy court. Full Opinion

Edwin Romero Zambrano v. Jefferson B. Sessions III (Gibney 12/5/2017): The Fourth Circuit held that the legal standard of changed circumstances for the basis of asylum does not require a showing that the applicant could not have filed a meritorious appeal prior to the changed circumstances. Accordingly, the court held that the Board of Immigration Appeals erred by vacating the BIA’s order and remanding the case to the BIA. Full Opinion

Trey Sims v. Kenneth Labowitz (Keenan 12/5/2017): The Fourth Circuit held that a defendant law enforcement officer is not entitled to qualified immunity in a 42 U.S.C. § 1983 lawsuit for violation of the 4th Amendment where the search was sexually invasive in violation of clear precedent, even though the officer had a warrant to perform the search. Further, the court concluded a plaintiff does not adequately allege entitlement to damages under 18 U.S.C. § 2255(a) unless he alleges the defendant acted with the purpose of sexually exciting himself. Accordingly, the court affirmed in part, reversed in part, and remanded. Full Opinion

Torrey F. Wilcox v. Betty Brown (Traxler 12/5/2017): The Fourth Circuit held that a plaintiff inmate is not required to affirmatively show exhaustion of administrative remedies in his 42 U.S.C. § 1983 complaint because failure-to-exhaust is an affirmative defense that must be raised by a defendant. Further, the court held that the appellant inmate’s 1st Amendment Free Exercise Clause violation claim adequately alleged that the prison substantially burdened his ability to practice his sincere religious beliefs by refusing to allow a Rastafarian group service. Accordingly, the court reversed the dismissal of the appellant’s complaint and remanded for further proceedings. Full Opinion

US v. Geoffrey Thomas Gattis (Niemeyer 12/4/2017): The Fourth Circuit held that North Carolina common law robbery categorically qualifies as a felony conviction for a crime of violence under the federal sentencing guidelines found in U.S.S.G. § 2K2.1(a)(4)(A) and § 4B1.2(a). Further, the court concluded that the evidence was sufficient to support the district court’s additional enhancements. Accordingly, the court affirmed the judgment of the district court. Full Opinion


Highlight Case

Trey Sims v. Kenneth Labowitz, No. 16-2174

Decided: December 5, 2017

The Fourth Circuit held that a defendant law enforcement officer is not entitled to qualified immunity in a 42 U.S.C. § 1983 lawsuit for violation of the 4th Amendment where the search was sexually invasive in violation of clear precedent, even though the officer had a warrant to perform the search. Further, the court concluded a plaintiff does not adequately allege entitlement to damages under 18 U.S.C. § 2255(a) unless he alleges the defendant acted with the purpose of sexually exciting himself. Accordingly, the court affirmed in part, reversed in part, and remanded.

In June 2014, the Commonwealth of Virginia filed felony charges against Trey Sims (“Sims”) for manufacturing and distributing child pornography after he sent a video of himself fondling his erect penis to his minor girlfriend. Detective David Abbott (“Abbott”) obtained a search warrant from a Virginia Magistrate authorizing a search for photographs of the suspect’s genitalia, including a photograph of the suspect’s erect penis.  In a locker room at a juvenile detention center, Abbott and two uniformed officers executed the search warrant. During the process, Abbott instructed Sims to use his hand to manipulate his penis in different ways to obtain an erection. The next day Sims was arraigned. Abbott obtained a second search warrant, which again authorized photographs of Sims’ erect penis. Before the second search warrant was executed, the Manassas City Police Department issued a statement stating that it did not permit invasive searches of suspects in cases of this nature and condemned the first search of Sims. Thereafter, Sims asserted claims for damages against the Administrator of Abbott’s estate (the “Administrator”) under 42 U.S.C. § 1983, alleging the search of his person violated his Fourth Amendment right of privacy or alternatively, his right of substantive due process under the Fourteenth Amendment. The district court granted the Administrator’s motion to dismiss, concluding that the Administrator was entitled to qualified immunity. Sims timely filed an appeal.

The court first discussed Sims’ claim that his Fourth Amendment right was violated by an unreasonable search under the framework articulated in Bell v. Wolfish, 441 U.S. 520, 559 (1979). First, the court reasoned that the outrageous scope of the sexually intrusive search and the intimidating manner in which the search was conducted weighed strongly against finding the search was reasonable. Next, the court reasoned that it could not perceive any circumstance that would justify a police search requiring an individual to masturbate in front of others. The court then turned to the question of whether Abbott’s actions were unlawful under clear precedent at the time the search occurred. Because there was no justification for the alleged search to photograph Sims’ erect penis and the order that he masturbate in the presence of others, the court concluded that well established Fourth Amendment limitations on sexually invasive searches would have adequately placed any reasonable officer on notice that such police action was unlawful.

Accordingly, the court concluded that the district court erred in dismissing Sims’ § 1983 claim on the ground of qualified immunity by affirming in part, reversing in part, and remanding.

Full Opinion

Jacob D. Taylor