Week Eight

Week of February 20, 2017 through February 24, 2017

Robert Marcellus v. Virginia State Board of Elections (Niemeyer 2/21/2017): The Fourth Circuit held that § 24.2-613(B) of the Virginia Code, which provides that only candidates in elections “for federal, statewide, and General Assembly offices” may be identified on the ballot by the name of the political party that nominated them or by the term “Independent,” is constitutional.  The Court concluded that Virginia’s different treatment of local candidates and federal, statewide, and General Assembly candidates with respect to party identifiers on the ballot does not violate the Equal Protection Clause because such treatment is rationally related to legitimate governmental interests, such as minimizing partisanship at the local government level.  The Court affirmed the district court’s entry of summary judgment in favor of the Virginia State Board of Elections.  Full Opinion

Charles vonRosenberg v. Mark Lawrence (Motz 2/21/2017): The Fourth Circuit held that the district court improperly applied Colorado River by choosing to abstain when the state and federal cases involve different parties and different claims.  While Colorado River is the appropriate abstention standard in cases asking for both declaratory and nondeclaratory relief, exceptional circumstances allowing for abstention under Colorado River do not exist when state and federal cases are not duplicative, but merely raise similar or overlapping issues.  The Court vacated the district court’s abstention order and remanded for further proceedings.  Full Opinion

Stephen Kolbe v. Lawrence Hogan, Jr. (King 2/21/2017): The Fourth Circuit held that the Maryland Firearm Safety Act (“FSA”) is constitutional.  The Court found that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment.  The Court ruled, however, that even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection, the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under the standard of review.  Full Opinion

Riaz Mahmood v. Jefferson Sessions, III (Niemeyer 2/22/2017): The Fourth Circuit held that aliens who adjust to lawful permanent resident status under 8 U.S.C. § 1159(b) do not retain their asylum status.  The Court affirmed the Board of Immigration Appeals’ decision rejecting Mahmood’s argument that he could not be removed unless his asylum status had first been terminated, and further denied Mahmood’s petition for review.  Full Opinion

Juraluk Upatcha v. Jefferson Sessions, III (Harris 2/22/2017): The Fourth Circuit held that the Board of Immigration Appeals should have reviewed de novo, rather than for clear error only, whether Upatcha, a citizen of Thailand facing deportation due to her marriage to a United States citizen ending in divorce, established that her marriage was entered into in good faith under 8 U.S.C. § 1186(c)(4)(B).  The question is one of mixed fact and law, and the immigration judge’s conclusion that the credited evidence did not meet the good faith standard was a legal judgment subject to de novo review.  The Court therefore granted Upatcha’s petition and remanded so that the Board of Immigration Appeals could review the immigration judge’s determination under the proper standard.  Full Opinion

Thomas Heyer v. United States Bureau of Prisons (Traxler 2/23/2017): The Fourth Circuit held that Heyer, who has been deaf since birth and is currently confined as a sexually dangerous person, presented sufficient evidence to preclude summary judgment in favor of the Bureau of Prisons on his medical-treatment claims, safe-environment claim, and First Amendment claims.  The Court vacated the district court’s order and remanded for further proceedings.  Full Opinion

United States v. Darren Hill (Duncan 2/23/2017): The Fourth Circuit held that a police officer did not impermissibly extend a traffic stop both before and after issuing a warning ticket.  Any de minimis pre-ticket delay was allowed under the current Fourth Amendment jurisprudence at the time it occurred because the officer continued to pursue activities related to the initial traffic stop even though he asked off-topic questions in the process.  Furthermore, the defendants waived their challenge to any post-ticket extension by failing to specifically object on those grounds before the district court.  The Court affirmed the district court’s denial of Hill and Dodwell’s motions to suppress.  Full Opinion

 

Highlight Case:

Stephen Kolbe v. Lawrence Hogan, Jr., No. 14-1945

Decided: February 21, 2017

The Fourth Circuit held that the Maryland Firearm Safety Act (“FSA”) is constitutional.  The Court found that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment.  The Court ruled, however, that even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection, the district court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under the standard of review.

In response to mass shootings, the members of the General Assembly of Maryland enacted the State’s Firearm Safety Act of 2013 (the “FSA”), which bans the AR-15 and other military-style rifles and shotguns, as well as detachable large-capacity magazines.  The plaintiffs filed this lawsuit to contest the constitutionality of the FSA, arguing both Second Amendment and Fourteenth Amendment equal protection and due process violations.  On cross-motions for summary judgment, the district court held that the FSA was constitutional.  The district court assumed that the FSA implicates the Second Amendment and subjected it to the “intermediate scrutiny” standard of review.  The Fourth Circuit, in a divided three-judge panel, vacated the district court’s rulings and remanded with directions to apply the more restrictive standard of “strict scrutiny.”  The panel’s decision was vacated in its entirety by the Fourth Circuit’s grant of rehearing en banc.

On rehearing, the Fourth Circuit affirmed the district court’s judgment, in large part adopting the district courts’ reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth Amendment.  The Fourth Circuit, however, diverged from the district court on one notable point, holding that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment.  The Court reasoned that the banned assault weapons and large-capacity magazines are “weapons that are most useful in military service”, which the Supreme Court in District of Columbia v. Heller singled out as being beyond the Second Amendment’s reach.  The Fourth Circuit, therefore, has no power to extend the Second Amendment protection to weapons of war that the Heller Court explicitly excluded from such coverage.

The Fourth Circuit continued their analysis by stating that even if the banned assault weapons and large-capacity magazines are somehow entitled to Second Amendment protection, the district court properly subjected the FSA to an intermediate scrutiny level of review, and correctly upheld the FSA as constitutional under that standard.

Accordingly, the Fourth Circuit affirmed the district court’s ruling as to the constitutionality of the FSA.

Full Opinion

Katie E. Lowery

 

Outside Reactions:

http://www.nationalreview.com/article/445145/fourth-circuit-decision-maryland-assault-weapons-ban-constitutional-travesty

http://www.slate.com/blogs/the_slatest/2017/02/21/appeals_court_holds_second_amendment_doesn_t_protect_assault_weapons.html

http://dailycaller.com/2017/02/23/fourth-circuit-court-of-appeals-ignores-heller-no-protection-for-guns-it-deems-dangerous/

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