A closer look at Virginia’s “Lawrence fix” shows Cuccinelli’s consistency and Fourth Circuit’s faulty conclusion

A recent post by Michael Dorf about Virginia’s cert petition in Moose v. MacDonald reminded me of one thing that I like about the law. It can channel moral and political disagreement in various ways so that people who might disagree as to non-legal matters can agree about legal matters. Dorf concludes, contrary to some of AG Ken Cuccinelli’s most vocal critics, that “Cuccinelli appears to have a pretty good legal argument that the Fourth Circuit decided the case erroneously.” As I have previously argued (here, here, here, and here), Virginia’s argument is “pretty good” and maybe even better than that. This does not mean that the Supreme Court will grant cert, of course, but this is one of those unusual cases where summary reversal might get serious consideration.

Dorf’s conclusion about the strength of Virginia’s petition depends on the deferential standard of review on federal habeas supplied by 28 U.S.C. § 2254(d). That provision prohibits a federal court from granting an application for a writ of habeas corpus to one in custody pursuant to state proceedings unless the State adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” As long as the Virginia state court’s view was not unreasonable, the Fourth Circuit should not have granted relief.

Although disagreeing with most critics on the merits, Dorf apparently agrees that the course of proceedings nevertheless reveals “Cuccinell’s hypocrisy” and his “audacity.” This assessment relies on Cuccinelli’s opposition to a proposed “Lawrence fix” bill that Cuccinelli voted against as a legislator. Here’s the key paragraph of Dorf’s post on this point:

Much of the media coverage of the case has understandably focused on Cuccinelli’s hypocrisy.  The Virginia legislature tried to replace the blanket sodomy prohibition–which applies to everyone regardless of their age–with a narrower law that would focus simply on sex with minors, but Cuccinelli played a role in squashing that effort.  Now he has the audacity to say that he needs to use the broader law as his only available means to target sodomy with minors. Dahlia Lithwick nicely captures what is so outrageous about this move when she writes: “You can’t really stagger around swinging a huge, unwieldy legal mallet and claiming it’s the only tool you have against pedophilia. Not when you opted to turn down the offer of a scalpel.”

This assessment misdescribes the nature of the proposed “Lawrence fix”  in a way that undercuts the analysis. The bill did three things: (1) it separated the bestiality and sodomy prohibitions into separately numbered subsections; (2) it provided that the sodomy prohibition “shall not apply where all persons are consenting adults who are not in a public place and who are not aiding, abetting, procuring, engaging in or performing any act in furtherance of prostitution”; and (3) it changed the classification of the sodomy offense from a felony to a misdemeanor (which may have been the reason that some legislators opposed it). Note that nothing in these changes had to do with age; the bill did not “focus simply on sex with minors,” but instead codified the Virginia legislature’s understanding of Lawrence.

And here is where things get (legally) interesting: If the Virginia legislature’s understanding of Lawrence was correct, then the Fourth Circuit‘s analysis was wrong. Under the Virginia legislature’s understanding of Lawrence, the conduct underlying the petitioner’s solicitation offense (solicitation of oral sex from a minor) was not constitutionally protected. The narrowing that would have been accomplished as a matter of state law under the proposed fix would not have excluded petitioner’s conduct from the sweep of the prohibition. Not only would sodomy involving minors have remained within the prohibition, so too would have sodomy in a public place, and sodomy related to prostitution. The proposed Lawrence fix relied on the very same reading of Lawrence defended by Virginia in Moose v. MacDonald. 

The Fourth Circuit determined that it could not adopt this reading because “a judicial reformation of the anti-sodomy provision to criminalize MacDonald’s conduct in this case, and to do so in harmony with Lawrence, requires a drastic action that runs afoul of the Supreme Court’s decision in Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006).” And yet the Fourth Circuit would have had to do precisely nothing to Virginia’s law in order to deny habeas relief. As a matter of federal law, the prohibition against unconstitutional applications of the sodomy statute already existed because of Lawrence itself. Apart from the change in penalty, there would have been no difference in the state of the law as it existed at the time of petitioner’s September 2004 conduct of conviction if Virginia had enacted the proposed Lawrence fix earlier that year.

And here’s where it gets even more (legally) interesting. The change in penalty would have been significant for petitioner. If the proposed bill had passed, petitioner could not have been convicted of solicitation of a felony because oral sex with a 17-year-old, unrelated minor would have been changed to a misdemeanor instead of a felony. Maybe that would have been a good change in the law; maybe it would have been bad. But by including it in addition to the Lawrence fix, the bill’s sponsors probably lost some votes, perhaps including Cuccinelli’s. If so, then Cuccinelli’s stance is not only not hypocritical, but completely consistent. And it is the critics who are subject to the accusation instead. For the proposed bill would not have enabled Virginia to prosecute the petitioner’s conduct in the way that it did.

Okay, now suppose that Virginia had enacted a Lawrence fix identical to the one proposed but without the change in penalty. Perhaps Cuccinelli could have voted for it. There would have been no reason not to because it would not have worked any real change in the law. If petitioner had then raised a Lawrence-based claim on direct review, he would have had to argue for an extension of Lawrence. And on the supposition that this would have been unsuccessful, his claim for habeas relief would have been unsuccessful because the § 2254(d) standard of review precludes that kind of extension of the law.

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An early observation on the Fourth Circuit’s recess appointments decision

A divided three-judge panel of the Fourth Circuit held today that three of President Obama’s appointments to the NLRB were invalid because they did not take place during an intersession recess of the Senate. Senior Judge Hamilton wrote the opinion for the majority in NLRB v. Enterprise Leasing Co. SE, LLC (the lead case on the caption). Judge Duncan joined in full and wrote a separate concurrence. Judge Diaz dissented from the constitutional holding (but concurred in other matters).

Although Judge Hamilton and Judge Duncan were appointed by Presidents Bush 41 and Bush 43, respectively, while Judge Diaz was appointed by President Obama, the best explanation for the differing outcomes tracks methodological rather than partisan political differences. The majority and dissenting opinions exhibit vastly different approaches to constitutional interpretation. The majority emphasizes text and history while the dissent is avowedly pragmatic and functional (indeed the most explicitly functionalist opinion by Judge Diaz that I can recall).

The Fourth Circuit’s decision bodes poorly for the Administration when the Supreme Court addresses these issues next Term in NLRB v. Noel Canning. This assessment is based not simply on the bottom-line conclusion reached by the Fourth Circuit, but on how the opinions were reasoned. On issues like these, the majority of the Supreme Court is methodologically closer to Judge Hamilton than Judge Diaz. It is difficult to see a majority of the Court hewing to the reasoning and conclusions reached by Judge Diaz in this case.

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Lexington prevails over Sons of Confederate Veterans in free speech challenge to city ordinance limiting use of city-owned flag standards

The Fourth Circuit last week unanimously affirmed the dismissal of a Free Speech and related civil contempt claim brought by a Confederate veterans’ group who wish to fly the Confederate flag on city-owned flag standards in Lexington, Virginia during the group’s Lee-Jackson Day parade. Judge King wrote the opinion for the court in Sons of Confederate Veterans, Virginia Division v. Lexington, in which Judge Diaz and Judge Floyd joined. (For prior coverage, including links to early news stories, see How Appealing.)

Based on the facts described in the opinion, the Fourth Circuit’s decision seems to reach the right outcome on the First Amendment and civil contempt claims (although it would have been helpful to know a little bit more about the wording of the earlier consent decree). 

The interesting First Amendment issue raised by the case is the extent to which government motive matters when the government converts a designated public forum to a nonpublic forum. The relevance of legislative motivation is one of the most vexing issues in constitutional law, but the panel opinion does not provide too much discussion of this issue. 

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Woollard, MacDonald, and Standing to Raise a “Facial Challenge”

1. In a previous post, I criticized the Fourth Circuit’s habeas grant in MacDonald v. Moose. The Fourth Circuit held in that case that one textual provision of Virginia’s more encompassing “crimes against nature” statute was facially unconstitutional under Lawrence v. Texas. As my post indicated, and as some comments to the post discussed in detail, the Fourth Circuit was not making this determination de novo but rather under AEDPA’s deferential standard of review for claims adjudicated on the merits in state court proceedings.  The relevant state court determinations in MacDonald were that the statute was constitutional as applied to petitioner’s conduct and that he lacked standing to bring his facial challenge. Here is the reasoning with respect to the facial challenge:

MacDonald contends the sodomy statute, Code § 18.2-361(A), is facially unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment. In accord with our previous decisions, we hold that MacDonald lacks standing to assert this claim. See McDonald v. Commonwealth, 48 Va. App. 325, 329, 630 S.E.2d 754, 756 (2006) (“[W]e will only consider the constitutionality of Code § 18.2-361(A) as applied to appellant’s conduct.”); Singson v. Commonwealth, 46 Va. App. 724, 734, 621 S.E.2d 682, 686 (2005) (defendant lacks standing to challenge statute generally); Tjan v. Commonwealth, 46 Va. App. 698, 706, 621 S.E.2d 669, 673 (2005) (same); see also Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941) (“It is well settled that one challenging the constitutionality of a provision in a statute has the burden of showing that he himself has been injured thereby.”); Coleman v. City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241 (1988) (“generally, a litigant may challenge the constitutionality of a law only as it applies to him or her”).

According to the Fourth Circuit panel opinion, however, one discrete textual provision of Virginia’s statute was facially unconstitutional, and “the state court’s standing determination, as endorsed by the district court, was contrary to and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” (emphasis added).

2. Nine days after the Fourth Circuit issued its opinion in MacDonald v. Moose, the court issued an opinion in Woollard v. Gallagher. Woollard was a Second Amendment challenge to Maryland’s “good and substantial reason” permitting requirement for gun possession outside one’s home. The district court in Woollard had held that this requirement was facially unconstitutional. In addition to rejecting Woollard’s claim that the permitting requirement was unconstitutional as applied to him, the panel opinion held that Woollard lacked standing to bring his facial challenge:

Because we conclude that the good-and-substantial-reason requirement is constitutional under the Second Amendment as applied to Appellee Woollard, we also must reject the Appellees’ facial challenge. See Masciandaro, 638 F.3d at 474. As the Supreme Court has explained, “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973); see also Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (“It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.”).

On its face, this reasoning looks just like the reasoning that the Fourth Circuit held was “contrary to and involved and unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” when that reasoning was used by Virginia’s Court of Appeals in MacDonald.

3. The tension between the two cases cannot be explained on the grounds that the Woollard panel was unaware of the recent MacDonald decision. According to the date listed on the opinions, the two appeals were argued on the same day and two out of the three judges were the same in both cases (Judge King and Judge Diaz). And most importantly, Judge King authored both opinions.

4. The doctrine surrounding facial and as-applied challenges is notoriously murky. Some may view it as complex; others may view it as simply confused. In my view, the labels “facial” and “as-applied” hurt more than they help insofar as each lacks a stable meaning across cases. But to the extent that MacDonald’s facial challenge was an overbreadth-type (“bottom-up”) challenge, in which facial unconstitutionality depends on the proportion of unconstitutional applications to constitutional applications, then the reasoning used by the Virginia Court of Appeals in refusing to adjudicate the challenge seems unimpeachable (as the Fourth Circuit’s use of that reasoning in Woollard would seem to indicate). (For a discussion of the distinction between valid-rule  (or “top-down”) facial challenges and overbreadth-type (or “bottom-up”) facial challenges, see Richard H. Fallon, Jr., Fact and Fiction about Facial Challenges, 99 Cal. L. Rev. 915, 931 (2011), a law review article cited by Judge King’s majority opinion in MacDonald.)

5. According to the portion of the appellant’s brief quoted by the panel opinion in MacDonald, the facial challenge in that case was an overbreadth-type challenge:

MacDonald maintains that he possesses standing to pursue his facial challenge under the Due Process Clause because the anti-sodomy provision was rendered unconstitutional by Lawrence. He relies on established Supreme Court authority for the proposition that standing exists: “where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of cases it was originally designed to cover.” Br. of Appellant 14 (quoting United States v. Raines, 362 U.S. 17, 23 (1960)).

6. Virginia’s petition for en banc review is pending at the court. Its principal focus is the application of 2254(d) with respect to the state court’s as-applied understanding of Lawrence v. Texas. If the Fourth Circuit does grant en banc review, perhaps it will also take the opportunity to clarify the law surrounding facial and as-applied challenges more generally.

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The Fourth Circuit’s obviously (and profoundly) mistaken habeas grant premised on the alleged facial unconstitutionality of Virginia’s “anti-sodomy provision”

[UPDATE: Additional discussion at Woollard, MacDonald, and Standing to Raise a “Facial Challenge” and here.]

A split panel of the Fourth Circuit yesterday granted habeas relief to a forty-seven year-old Virginia man convicted of criminally soliciting oral sex from a seventeen year-old girl. (HT and with link to AP coverage: Howard Bashman at How Appealing) The court held that the conviction was invalid because the predicate felony of sodomy was based on an unconstitutional provision of state law. Judge King wrote the opinion for the court in MacDonald v. Moose, in which Judge Motz joined. Judge Diaz dissented.

The panel majority reasons that the Virginia “anti-sodomy provision” is facially unconstitutional under Lawrence v. Texas because of Lawrence’s reasoning about Bowers v. Hardwick, which the Fourth Circuit describes as having involved a facial challenge to a materially indistinguishable Georgia statute. According to the panel opinion, “the invalid Georgia statute in Bowers is materially indistinguishable from the [Virginia] anti-sodomy provision being challenged here.” And although the Supreme Court upheld the materially indistinguishable Georgia statute against a facial constitutional challenge in Bowers, the Supreme Court in Lawrence v. Texas “recognized that the facial due process challenge in Bowers was wrongly decided.”  In other words (as Judge Diaz fairly reconstructs the majority’s argument in his dissent), “the majority reasons that MacDonald’s facial challenge must succeed just as–according to Lawrence–the facial challenge in Bowers should have.”

This decision is obviously mistaken about Bowers and Lawrence, and profoundly mistaken about the nature of constitutional adjudication.

To begin with, Bowers did not involve a “facial due process challenge.” The opinion for the Court in Bowers explicitly states: “The only claim properly before the Court . . . is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.” This mistake alone renders the Fourth Circuit’s reasoning unsustainable on its own terms. The panel opinion reasons that the Virginia statute is facially unconstitutional because the Georgia statute is facially unconstitutional, but Bowers simply did not deal with the alleged facial unconstitutionality of Georgia’s statute.

The Fourth Circuit’s majority opinion is also wrong to describe Lawrence as resolving a claim of facial unconstitutionality. The panel majority’s misapprehension of this decision can be seen in the way the panel describes the three questions presented in Lawrence:

(1) whether the criminalization of strictly homosexual sodomy violated the Equal Protection Clause of the Fourteenth Amendment; (2) more broadly, whether criminalization of sodomy per se between consenting adults contravened the fundamental liberty and privacy interests protected by the Fourteenth Amendment’s Due Process Clause; and (3) whether Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld against facial challenge a Georgia statute criminalizing all sodomy, should be overruled.

The panel opinion’s paraphrase of the first two questions presented materially changes both of those questions (and I have already explained what is wrong with the description of the third question). The Supreme Court actually undertook to address the narrower questions “[w]hether petitioners’ criminal convictions” violated the Fourteenth Amendment’s requirements of equal protection or due process. Under the Supreme Court’s formulation, the alleged violations of the Constitution inhere in petitioners’ convictions, not in the state’s legislation. And the Court’s supporting reasoning throughout the opinion is all about the petitioners’ personal interests in liberty and privacy.

As if to underscore the personal nature of the rights at issue and the importance of this as-applied understanding to its framing of the analysis, the portion of the Lawrence opinion for the Court that describes the questions presented concludes: “The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.” And in concluding the opinion as a whole, Justice Kennedy highlights again that “[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Instead, the case involved “two adults” who engaged in sexual practices “with full and mutual consent from each other.”

Mr. MacDonald’s criminal solicitation did not involve two adults, but did involve a minor in a relationship “where consent might not easily be refused.” Yet the Fourth Circuit’s misreading of Bowers and Lawrence as involving facial invalidation permits what Virginia law has forbidden.

In light of the panel majority’s mistaken characterizations of both Bowers and Lawrence, the panel majority should not have been “confident” that Virginia’s “anti-sodomy provision, prohibiting sodomy between two persons without any qualification, is facially unconstitutional.” And at the very least, the panel majority should not have dismissed Judge Diaz’s conclusion that the Virginia courts had not made a decision that was contrary to or involved an unreasonable application of clearly established federal law. The panel majority’s reasoning would not have been sufficient to reverse a federal district court on direct appeal, much less displace a state appellate ruling under AEDPA’s standard of review.

There is more that could be said in criticism of the panel majority’s opinion (such as with respect to its misapplication of Ayotte v. Planned Parenthood). But I hope such criticisms will be rendered unnecessary by the grant of en banc rehearing.

The odds of such rehearing are never good, of course, and Virginia has an even steeper uphill climb given the panel composition and the composition of the en banc court. Yet it is no small thing for the Fourth Circuit panel to do what it did here, and the defects in analysis are not difficult to see. Moreover, there are both narrower ways (like Judge Diaz’s) and also broader ways of affirming the district court’s denial of habeas relief.

Whether or not the Fourth Circuit grants rehearing, however, it is worth mentioning a more fundamental problem with the panel majority’s conception of constitutional adjudication, a problem that will remain even if this opinion’s particular manifestation of the problem is deprived of legal effect by the grant of en banc rehearing. That problem is the legislative conception of judicial review inherent in its description of the effect of constitutional adjudication.

In the panel majority’s view, the so-called anti-sodomy provision in Virginia law “does not survive the Lawrence decision.” The panel reasons that– because Lawrence killed this provision–the underlying prosecution was not for solicitation of a felony but rather for solicitation of “an act that is not, at the moment, a crime in Virginia.” Indeed, the panel majority states, ” [t]he Commonwealth may as well have charged MacDonald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot.” But this is all wrong. Supreme Court decisions about constitutional matters do not decriminalize acts or change state legal codes. Supreme Court decisions may render certain state actions unconstitutional. But such judicial decisions (whether by the Supreme Court or any other federal court for that matter) cannot and do not change what is and is not criminal under state law. Yet that is precisely the effect attributed by the panel opinion to the Supreme Court’s decision in Lawrence.

The panel opinion is right that “the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal . . .” But the Commonwealth did no such thing. It declared conduct criminal through ordinary legislation, and the Fourth Circuit has now erroneously set aside a conviction for violation of that ordinary state legislation through an extraordinary exercise of the federal judicial power.

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What explains today’s unanimous Supreme Court decision overturning the Fourth Circuit on attorney’s fees?

The Supreme Court today unanimously overturned a Fourth Circuit decision that affirmed the denial of attorneys’ fees in a civil rights case. The Court in Lefemine v. Wideman vacated a Fourth Circuit decision that affirmed the denial of “prevailing party” attorney’s fees to a plaintiff who had secured declaratory and injunctive relief but no money damages.

Unanimous summary decisions like this one are a problem for any inferior court. Yet some courts deciding some issues seem more likely to result in such decisions (such as the Sixth Circuit operating under AEDPA or the Ninth Circuit examining qualified immunity). The Fourth Circuit has generally steered clear of this kind of unanimous overturning. What happened here?

It looks like the Fourth Circuit panel simply misapplied Supreme Court precedent, in large part because of an earlier circuit precedent (from 1993) that also (but without correction) misapplied Supreme Court precedent.

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Fourth Circuit Upholds Ban on Corporate Contributions

Justin Levitt has a post with this title at Election Law Blog, with an overview and links to coverage. The decision happened yesterday, in United States v. Danielczyk. (See here for my oral argument preview and a link to AP coverage of the oral argument itself.)

Judge Gregory wrote the opinion, which was joined in by Chief Judge Traxler and Judge Diaz. This opinion must have brought Judge Gregory some satisfaction. The controlling Supreme Court decision, FEC v. Beaumont, came to the Supreme Court out of the Fourth Circuit. Judge Gregory authored a panel dissent in that case, and the outcome he advocated in dissent was adopted by the Supreme Court.

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Getting away with merger: Fourth Circuit reverses mortgage fraudster’s money laundering convictions

The mastermind of a major mortgage fraud conspiracy in North Carolina was able to shed his money laundering convictions with a merger argument. In United States v. Cloud, the Fourth Circuit held today that money laundering convictions premised on the payment of money to third parties simply to cover essential operating expenses for the underlying fraud merged into the underlying fraud and could not be punished under a since-amended federal money laundering statute. Judge Diaz wrote the opinion for the court, in which Judge Gregory and Judge Davis joined.

This decision in Cloud rests on the Fourth Circuit’s decision in United States v. Halstead, 634 F.3d 270 (4th Cir. 2011). That case sets forth Fourth Circuit’s interpretation of the Supreme Court’s 4-1-4 decision in United States v. Santos, 553 U.S. 507 (2008).

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One for the dogs: Fourth Circuit issues First Amendment decision about doggy daycare mural

The Fourth Circuit today affirmed the dismissal of a First Amendment challenge to Arlington, Virginia’s prohibition of a doggy daycare’s mural near the Shirlington Dog Park. Judge Diaz wrote the opinion for the Court in Wag More Dogs, LLC v. Cozart, which was joined in by Judge Duncan and Judge Keenan. The challenger was represented by the Institute for Justice, which has a case page with background and more information, together with a response to today’s decision.

My preliminary reaction is that the opinion’s First Amendment analysis is overly deferential to the government. In assessing whether the challenged sign ordinance is content-based or content-neutral, the opinion follows the regrettable path of focusing almost exclusively on whether the ordinance was enacted because of disagreement with the message conveyed. The most underdeveloped part of the opinion, however, is its application of intermediate scrutiny, particularly the narrow tailoring prong. The county asserted that its ordinance serves two interests: promoting traffic safety and enhancing the County’s aesthetics. The county’s enforcement of its ordinance with respect to the challenged mural raises serious questions about how the ordinance is “narrowly tailored” to serve these interests, questions that the opinion simply does not address. The county told Wag More Dogs that the mural would not run afoul of the ordinance if (1) it depicted anything other than pictures relating to the doggy daycare business, or (2) it included the phrase “Welcome to Shirlington Park’s Community Canine Area.” Given the conceded lawfulness of hypothetical alternative murals that comply with either (1) or (2), it is hard to see how the ordinance is tailored at all, much less narrowly tailored, to the promotion of traffic safety or the enhancement of the County’s aesthetics. Instead of examining this issue, however, the opinion conclusorily asserts that the ordinance’s sign and location restrictions do no more than eliminate the exact source of the evil it sought to remedy.

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Split Fourth Circuit panel presumes Pitt County (NC) school assignment plan’s alleged racial disparities flow from decades-old discrimination

A split Fourth Circuit issued an opinion yesterday in the continuing saga of school desegregation litigation in North Carolina’s Pitt County. The decision vacates and remands a district court decision that had ruled in the school board’s favor in rejecting a challenge to a recent student assignment plan.

The current chapter of the story began with the filing in April 2011 of a motion for injunctive relief by a parents’ group who complained that the School Board’s 2011-12 Assignment Plan insufficiently addressed racial disparities. But the story cannot simply pick up there because a key part of the School Board’s defense to this April 2011 action was that its 2011-12 Assignment Plan complied with a 2009 Settlement Agreement/Release and Order that was reached in mediation of a dispute over the 2006-07 Assignment Plan.

The 2006-07 dispute–known as the Everett litigation–also involved the Greenville Parents’ Association. The Association had filed a complaint with the federal Office of Civil Rights (Department of Education) objecting to the Board’s use of race in the 2006-07 Assignment Plan.

In the litigation over the 2006-07 plan, then, the School Board was being hit from both sides–by some parents for not doing enough about racial disparities and by others for placing too much emphasis on race in student assignments.

The 2009 mediated settlement agreement and order in the Everett litigation created a process for input from all sides in creating the 2011-12 Assignment Plan. The Board and the various interested parties went through this agreed-upon process, but the resulting plan was not satisfactory to the plaintiffs. That dissatisfaction led to the motion for injunctive relief at issue in the appeal decided yesterday.

As presented to the Fourth Circuit, the principal issue was who bore the burden of proof in seeking injunctive relief. The appeal also presented a question about appellate jurisdiction.

In an opinion authored by Judge Wynn, and joined in by Judge Diaz, the Fourth Circuit held in Everett v. Pitt County Board of Education that the district court erred “by failing to apply, and requiring the School Board to rebut, a presumption that racial disparities in the 2011-2012 Assignment Plan resulted from the School Board’s prior unconstitutional conduct in operating a racially segregated school district.” Judge Niemeyer dissented, arguing that the majority’s disposition “overlooks . . . the procedural posture of his case and, most importantly, the impact of the settlement agreement reached by the parties ‘as to all matters in dispute’ from the date of the original desegregation orders to the date of the court’s approval of the settlement agreement in a consent order, dated November 4, 2009.”

The decision is a victory for UNC’s Center for Civil Rights, which represented the plaintiffs. Their background page on the case contains links to the appellants’ brief, the school board’s brief, and the reply brief.

The case raises difficult issues about continuing judicial oversight of a school district that has not yet achieved unitary status. It is difficult to evaluate the dueling opinions without further study of the record, including the precise terms of the settlement agreement/release and order, though my preliminary impression is that the majority opinion does not adequately address the dissent’s contentions about the effect of the 2009 settlement agreement/release and order. The one thing that is clear, though, is that the litigation will continue for the foreseeable future.

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No qualified immunity for bail bondsmen in Fourth Circuit

The Fourth Circuit held yesterday that bail bondsmen are not entitled to qualified immunity. Judge Diaz wrote the opinion for the court in Gregg v. Ham, in which Judge Niemeyer and Judge Motz joined.

The appeal came from a jury verdict in favor of a disabled woman whose home was invaded by bail bondsmen in search of a fugitive who had passed through her property a couple days earlier (when fleeing a chase). Given the facts of the case, it may be that the bail bondsman would not have been entitled to qualified immunity even if eligible for it, but the appeals court held categorically that bail bondsmen are not entitled to qualified immunity.

(Although it makes no difference to the outcome here, a cautionary note is in order with respect to the opinion’s description of qualified immunity analysis. Relying on the Fourth Circuit’s en banc decision last year in Henry v. Purnell, the opinion states that “[t]he defense of qualified immunity involves a two-step procedure “that asks first whether a constitutional violation occurred and second whether the right violated was clearly established.” This formulation leaves out the Supreme Court’s holding in Pearson v. Callahan that courts are not bound to apply these two steps sequentially.)

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Cell carriers and localities split victories in Fourth Circuit cell-tower cases

T-Mobile won yesterday in the Fourth Circuit, while New Cingular Wireless lost last week in the same court. Both cases involved challenges to the denial of applications to erect cell towers in localities. Both appeals resulted in affirmances of the relevant district court decision, supporting the appellate court’s description of these kinds of cases as fact-intensive.

Judge Diaz wrote yesterday’s opinion for the court in T-Mobile Northeast LLC v. Newport News, in which Judge King and Judge Gergel (DSC) joined.

Judge Agee wrote the opinion for the court in New Cingular Wireless, PCS, LLC v. Fairfax County Board of Supervisors, in which Judge Davis and Judge Floyd joined.

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Anomalous but not absurd: Fourth Circuit splits from Third and Ninth on interpretation of FTCA’s “law enforcement proviso”

The Fourth Circuit decided today in Ignacio v. United States that the Federal Tort Claims Act waives the immunity of the United States for intentional torts committed by law enforcement officials, regardless of whether the official was engaged in a law enforcement activity when he committed the intentional tort. Judge Floyd wrote the opinion for the court, which was joined in by Judge Shedd and Judge Diaz. Judge Diaz also authored a separate concurrent. According to the opinions, the decision creates a circuit split with the Third and Ninth Circuits. See Orsay v. United States, 289 F.3d 1125, 1134 (9th Cir. 2002); Pooler v.  United States, 787 F.2d 868, 871-72 (3d Cir. 1986).

The case arises out of a dispute on December 2, 2009 between a Pentagon police officer (Lane) and a contract security officer (Ignacio) who were assigned together to the same security checkpoint for Pentagon employees. The two disagreed over the caliber of an M-16 round. “Initially, their disagreement led only to a bet. It escalated, however, on December 15, when they were again stationed at a security checkpoint for Pentagon employees. Lane allegedly told Ignacio that he would ‘hurt him after work’ and then pretended to punch him in the face.” This led to workplace discipline and, eventually, a lawsuit. The United States sought summary judgment on the basis of an exception from the FTCA’s waiver of sovereign immunity.

The FTCA (i) waives the sovereign immunity of the United States for certain torts committed by federal employees, (ii) excepts certain intentional torts from this waiver, and (iii) then excepts from this exception intentional torts committed by investigative or law enforcement officers. See 28 U.S.C. 2680(h). This exception from an exception from the waiver of sovereign immunity is known as the “law enforcement proviso.” Other circuits interpreting this proviso have limited its application to torts committed by investigative or law enforcement officers in the course of investigative or law enforcement efforts. Applying that interpretation, the district court (Judge O’Grady, EDVA) granted summary judgment to the United States.

In reversing and remanding, the Fourth Circuit faulted the other circuits for “relent[ing] to secondary modes of interpretation without first establishing the ambiguity of the statutory text.”  According to Judge Floyd, the text of the proviso is clear and contains no limitation of the sort read in by the other circuits.

In his separate concurrence, Judge Diaz acknowledges that the interpretation adopted by the court “leads to the anomalous situation in which the federal government could be liable for the actions of a law enforcement officer but would be immune from liability for the same conduct committed by another federal employee under the same circumstances.” This result “can be criticized as inconsistent and unreasonable,” but it is not  “so absurd as to allow us to alter the meaning–as other courts have–of an otherwise unambiguous statute.”

In light of the result and apparent circuit split, the United States may be interested in seeking additional review. Given the panel composition and outcome, the likelihood of obtaining a different ruling en banc is very low. If the Department of Justice determines that the issue is sufficiently important to seek certiorari, this case very well could end up before the Supreme Court. There are unresolved factual disputes about whether the Pentagon police officer was acting within the scope of his employment under Virginia law (a necessary predicate to liability under the FTCA), which could counsel against a grant of certiorari. Because sovereign immunity protects not simply against liability but also against having to answer in court at all, however, that consideration may carry less weight in this case.

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Fourth Circuit affirms 240-month sentence imposed after upward departures and an upward variance from advisory Guidelines range of 57-71 months

The Fourth Circuit today issued a published opinion affirming imposition of statutory maximum sentence of 240 months on an offender who started with an advisory Guidelines range of 57 to 71 months. The ultimate sentence resulted from two upward departures and an upward variance.

Judge King wrote the opinion in United States v. Rivera-Santana, which was joined in by Judge Wilkinson and Judge Diaz.

Judge Payne was the sentencing judge. In justifying the upward variance, Judge Payne observed of the defendant:

This man has proved for years that he is a danger to society. He has proved for years that he has no respect for the law. He was proved for years that it is necessary to take strong action to protect the public. A man who will kill his wife, pregnant wife, and kill his own child and molest his granddaughter has no respect for the law and is a menace and . . . a proven danger to the public, to the citizenry of the nation that he has chosen on multiple occasions illegally to invade, and when he comes here, he violates all kinds of laws, any kind of law that stands in the way of accomplishing what he wants to do.

If he wants to gratify himself, he plunders an eight-year-old child. If he wants to have some company or make some money, he smuggles illegal aliens. He gets deported, he comes right back. He drives drunk. He steals, he beats. He is, in short, an anathema to society.

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Fourth Circuit affirms denial of application for naturalization based on conviction that was “set aside” under D.C.’s Youth Rehabilitation ACt

In 2001, an eighteen year-old lawful permanent resident of the United States, formerly of Vietnam, was convicted of distributing cocaine in D.C. In 2003, he successfully completed probation pursuant to D.C.’s Youth Rehabilitation Act, and his conviction was “set aside.” Five years later, he applied for naturalization five years later. The federal government denied his application.Although his drug conviction had been set aside, in the eyes of the District of Columbia, it still counted against him under federal immigration law.

In an opinion issued today, the Fourth Circuit unanimously affirmed the denial of the application for naturalization. Judge Diaz wrote the opinion in Phan v. Holder, in which Judge Gregory and Judge Wynn joined.

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Fourth Circuit concludes that government failed to satisfy intermediate scrutiny in Second Amendment challenge to prohibition on gun possession by long-time marijuana user

A Fourth Circuit panel ruled unanimously today that the government must prove a reasonable fit between the ban on firearm possession by an unlawful user of a controlled substance and the objective of reducing gun violence. Judge Niemeyer wrote the opinion in United States v. Carter, which was joined in by Judge Diaz and Senior Judge Hamilton.

According to the opinion, every other circuit to address the issue has held that the ban in 18 U.S.C. § 922(g)(3) satisfies intermediate scrutiny. But the Fourth Circuit could not go along with this because the government had not borne its “burden of showing that § 922(g)(3)’s limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence”:

Without pointing to any study, empirical data, or legislative findings, [the government] merely argued to the district court that the fit was a matter of common sense. In view of our decisions in Chester and Staten [which require “tangible evidence” rather than “unsupported intuitions”], we therefore remand this issue to the district court to allow the government to develop a record sufficient to justify its argument that drug users and addicts possessing firearms are sufficiently dangerous to require disarming them.

The opinion goes on to note that “[t]his burden should not be difficult to satisfy in this case, as the government has already asserted in argument several risks of danger from mixing drugs and guns.”

Another feature worth noting about the decision is that it assumes, without deciding, that unlawful drug users have the same Second Amendment rights as law-abiding citizens. The following paragraphs of the opinion set forth the current state of the law on this issue in the Fourth Circuit:

We first applied Heller in United States v. Chester, 628 F.3d 673 (4th Cir. 2010), where we adopted—as had been adopted by two other circuits, United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), and United States v. Skoien, 587 F.3d 803 (7th Cir. 2009), rev’d 614 F.3d 638 (7th Cir. 2010) (en banc)—a two-step approach for evaluating a statute under the Second Amendment. First, we inquire whether the statute in question “imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification.” 628 F.3d at 680. And second, if the statute burdens such protected conduct, we apply “an appropriate form of means-end scrutiny.” Id. Following this approach, we now proceed to evaluate Carter’s constitutional challenge to § 922(g)(3).

Under the first step, we have three times deferred reaching any conclusion about the scope of the Second Amendment’s protection. In Chester, the government did not attempt to argue that domestic violence misdemeanants, who were prohibited by § 922(g)(9) from possessing a firearm, categorically fell outside the historical scope of the Second Amendment. Accordingly, we assumed, without deciding, that the misdemeanants there were entitled to some measure of constitutional protection and proceeded to the second step of applying an appropriate form of means-end scrutiny. See Chester, 628 F.3d at 680-82. In Masciandaro, the government did argue that possession of firearms in a national park should receive no Second Amendment protection whatsoever. See Masciandaro, 638 F.3d at 471. Nonetheless, we again did not decide the question because even if the defendant there had rights protected by the Second Amendment, the government would prevail under the intermediate scrutiny test that we applied. See id. at 473. And most recently in United States v. Staten, ___ F.3d ___, 2011 WL 6016976 (4th Cir. Dec. 5, 2011), we assumed but did not decide that the defendant had rights under the Second Amendment and rejected his constitutional challenge under the second step, applying intermediate scrutiny. Id. at *5.

In this case, as in Masciandaro, the government contends that dangerous and non-law-abiding citizens are categorically excluded from the historical scope of the Anglo-American right to bear arms. But again we will assume that Carter’s circumstances implicate the Second Amendment because all courts that have addressed the constitutionality of § 922(g)(3) have upheld the statute, see, e.g., United States v. Dugan, 657 F.3d 998 (9th Cir. 2011); United States v. Yancey, 621 F.3d 681 (7th Cir. 2010) (per curiam); United States v. Seay, 620 F.3d 919 (8th Cir. 2010); United States v. Patterson, 431 F.3d 832 (5th Cir. 2005); United States v. Richard, 350 F. App’x 252 (10th Cir. 2009), and our remand in this case is to afford the government the opportunity to substantiate the record and Carter the opportunity to respond. If we ultimately conclude that step two cannot be satisfied, we will need to address the government’s argument under step one.

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Fourth Circuit order denying relief to Perry and Gingrich in challenge to Virginia ballot access rules

The Fourth Circuit has released an order in Perry v. Judd unanimously denying Rick Perry’s emergency motion for injunctive relief in his fight to get on the Virginia ballot. The panel issuing the order consisted of Judge Wilkinson, Judge Agee, and Judge Diaz. Given the timeline for printing ballots, this is the end of the road as a practical matter. The only step left is an emergency request to Chief Justice Roberts, in his capacity as Circuit Justice for the Fourth Circuit. Such a request would almost certainly be denied.

Some language from the opening (describing Perry as Movant, as it was his motion):

Movant had every opportunity to challenge the various Virginia ballot requirements at a time when the challenge would  not have created the disruption that this last-minute lawsuit has. Movant’s request contravenes repeated Supreme Court  admonitions that federal judicial bodies not upend the orderly progression of state electoral processes at the eleventh hour.  Movant knew long before now the requirements of Virginia’s  election laws. There was no failure of notice. The requirements have been on the books for years. If we were to grant the requested relief, we would encourage candidates for President who knew the requirements and failed to satisfy them to seek at a tardy and belated hour to change the rules of the game. This would not be fair to the states or to other candidates who did comply with the prescribed processes in a timely manner and it would throw the presidential nominating process into added turmoil.

[UPDATE: The decision rests entirely on laches, after emphasizing that mandatory preliminary injunctive relief (to alter rather than maintain the status quo) “is disfavored, and warranted only the most extraordinary circumstances.” The order reasons that Perry’s First Amendment challenge to the residency requirement for petition circulators was ripe as of the day that he officially declared his candidacy in Virginia. Having chosen to wait to file suit until after he was denied a place on the ballot, he subjected himself to the rule that “equity ministers to the vigilant, not to those who sleep upon their rights.” The order also endorses, without definitively resolving, Virginia’s argument about Perry’s lack of standing (which the district court criticized but which I thought might have merit). The language of the twenty-two page order suggests that Judge Wilkinson wielded the primary pen in drafting. That makes sense given his seniority on the panel. All three judges must have been very busy given the short turnaround time of approximately 50 hours, including Sunday and a Monday holiday.]

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Five from the Fourth: new published opinions on ERISA, immunity, debt collection, arbitration, and immigration

The Fourth Circuit issued published opinions in five cases today. That is a large number of opinions in argued cases for a single day. Two of the cases were argued in September. Both were split decisions. Two of the cases were argued in October. Both were unanimous as to outcome, but one featured an unusual concurring opinion joined by a panel majority. The fifth decision, from a case argued in December, was unanimous. I hope to have more to say about at least some of these opinions in the future, but here is a capsule summary for now.

Fortier v. Principal Life Ins. Co.  is a dispute over disability insurance. A split panel affirms the interpretation of an ERISA plan administrator that resulted in a denial of benefits. Judge Niemeyer wrote the opinion, which was joined in by Judge Wilkinson. Judge Floyd dissented. 

Lee-Thomas v. Prince George’s County is a dispute over sovereign immunity for a county board of education. A split panel affirms the district court’s decision that a statutory waiver of immunity, as interpreted by Maryland’s Court of Appeals, preserved claims against a county board’s of education for $100,000 or less. Judge King wrote the opinion, which was joined by Judge Davis. Judge Keenan dissented. 

Peabody Holding v. United Mine Workers presents a dispute about who decides arbitrability. A Fourth Circuit panel unanimously holds that the court rather than arbitrator must decide arbitrability, because the agreement contains no language unmistakably designating arbitrability for arbitration. Addressing arbitrability in an exercise of its independent judgment, the appellate court concludes that the dispute is arbitrable. Judge Diaz wrote the opinion, which was joined in by Judge Niemeyer and Judge Wynn. 

Zelaya v. Holder is an immigration case. The Fourth Circuit denies the petition for review with respect to an asylum claim and a withholding of removal claim, but grants the petition for review with respect to a Convention Against Torture claim. Senior Judge Hamilton wrote the opinion for the court, which was joined in by Judge Davis and Judge Floyd. Judge Floyd wrote a separate concurrence, in which Judge Davis joined. (One lesson? When Judge Floyd writes a separate concurrence, turnabout is fair play. See here for this panel’s similar voting in a different case. One question: What is going on with this panel?)

Warren v. Sessoms & Rogers is a case about the Fair Debt Collection Practices Act. The Fourth Circuit holds that the district court, based on the defendant’s characterizations of its Rule 68 offer of judgment, incorrectly dismissed the FDCPA complaint. Judge Motz wrote the opinion, in which Judge Gregory and Judge Floyd joined. (Judge Floyd did not write a separate concurrence.)

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Bid for Burford and Thibodaux abstention denied by Fourth Circuit in wine distribution dispute won by defendant Gallo Winery

Judge Diaz of the Fourth Circuit found himself considering North Carolina business law once again, writing the unpublished opinion in The Country Vintner of North Carolina, LLC v. E&J Gallo Winery, Inc., which was joined in by Judge Davis and Judge Keenan. Before reaching the issues of North Carolina law, though, Judge Diaz needed to address abstention issues that only arise in federal court: whether the district court should have abstained under Burford or Thibodaux. The opinion, affirming the judgment of the district court in favor of defendant Gallo Winery. The court affirms the district court’s determinations that the plaintiff’s Uniform and Deceptive Trade Practices Act claim was just a repackaged Wine Act claim, and that the Wine Act claim failed.

Here is how the opinion begins:

We consider in this case whether, under the North Carolina Wine Distribution Agreements Act, (“Wine Act” or “Act”) a wine  wholesaler’s contractual right to distribute an imported wine survives a change in the winery that imports the brand. The district court declined to abstain from resolving this issue in favor of a state court proceeding, and held that Appellant’s  distribution rights did not survive a change in importers. The district court also dismissed Appellant’s separate claim under  the North Carolina Unfair and Deceptive Trade Practices Act. We affirm.

Some key language regarding abstention:

[T]he district court was interpreting a straightforward regulatory scheme that had not been the subject of much controversy in prior state or federal cases. Further, it carefully distinguished prior cases in which we held that abstention was appropriate and found that the circumstances here were inapposite. Moreover, a 2010 amendment to the Wine Act makes it unlikely that the question presented in this appeal is likely to recur. In sum, Country Vintner has failed to overcome the heavy deference we accord district courts in deciding whether to abstain from hearing a case.

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Fourth Circuit rejects Second Amendment challenge to firearm prohibition for those subject to certain domestic violence protective orders

A unanimous panel of the United States Court of Appeals for the Fourth Circuit today issued a decision rejecting an as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(8),  which prohibits a person subject to a certain type of domestic violence protective order from possessing a firearm. Senior Judge Hamilton wrote the published opinion in United States v. Chapman, in which Judge Niemeyer and Judge Diaz joined.

The decision applies intermediate scrutiny and largely tracks the Fourth Circuit’s opinion in United States v. Staten, also authored by Senior Judge Hamilton. In Staten, the Fourth Circuit upheld 18 U.S.C. § 922(g)(9) against an as-applied Second Amendment challenge. That statutory provision prohibits the possession of a firearm by one convicted of a misdemeanor crime of domestic violence.

Some key language from today’s opinion:

Chapman having cast no doubt on the government’s proffered social science evidence and after reviewing it ourselves, we again hold “the government has established that: (1) domestic violence is a serious problem in the United States; (2) the rate of recidivism among domestic violence misdemeanants is substantial; (3) the use of firearms in connection with domestic violence is all too common; (4) the use of firearms in connection with domestic violence increases the risk of injury or homicide during a domestic violence incident; and (5) the use of firearms in connection with domestic violence often leads to injury or homicide.” Staten, 2011 WL 6016976, at *11. Given these established facts, along with logic and common sense, we are constrained to hold that the government has carried its burden of establishing a reasonable fit between the substantial governmental objective of reducing domestic gun violence and keeping firearms out of the hands of persons who are currently subject to a court order which: (1) issued after a hearing satisfying the fundamental requirements of procedural due process; (2) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (3) by its terms, explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury. See United States v. Reese, 627 F.3d 792,   803-04 (10th Cir. 2010) (applying intermediate scrutiny and rejecting Second Amendment challenge to defendant’s conviction under § 922(g)(8)(A)-(B), and (C)(ii)).

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The last of the Fourth Circuit’s unpublished opinions after argument in 2011

In the last two weeks of 2011, the Fourth Circuit issued five unpublished opinions after argument, two in criminal cases and three in civil cases, all unanimous. The court affirmed in three cases, reversed in one, and affirmed in part and vacated in part in the fifth case.

In United States v. Davis, the court affirmed denial of a motion to suppress notwithstanding the appellant’s argument that the officers extended the scope and duration of a traffic stop beyond the circumstances justifying it. A panel consisting of Judge Niemeyer, Judge Duncan, and Judge Floyd issued  a per curiam opinion.

In United States v. Buczkowski, a panel consisting of Chief Judge Traxler, Judge Agee, and Judge Diaz reduced twenty-seven counts of transporting child pornography down to one. The unpublished per curiam opinion begins as follows:

Daniel Buczkowski was convicted of one count of possessing  child pornography, see 18 U.S.C. § 2252(a)(4)(B), and twenty-seven counts of transportation of child pornography in  interstate or foreign commerce, see 18 U.S.C. § 2252(a)(1).  Buczkowski appeals, challenging the convictions and sentences imposed on the transportation counts only. While we find the  government’s evidence sufficient to establish that Buczkowski transported child pornography, that evidence established only a  single act of transportation. Accordingly, we affirm the  conviction and sentence on the first transportation count,  vacate the remaining transportation convictions and sentences, and remand for resentencing.

In Miller v. Montgomery County, the Fourth Circuit affirmed a dismissal for lack of standing. Miller sought to challenge the denial of an application for an exemption from Montgomery County’s Conservation Law relating to certain trees that Miller intended to harvest, but the landowner rather than Miller signed the application. Judge Keenan wrote the opinion, in which Chief Judge Traxler and Judge Gregory joined.

In Young Again Products, Inc. v. Acord, the Fourth Circuit affirmed the imposition of sanctions and a civil contempt order. Judge Duncan wrote the opinion, in which Judge Wilkinson and Judge Motz concurred.

In Trice, Geary & Myers, LLC v. CAMICO Mutual Insurance Company, a Fourth Circuit panel unanimously reversed a grant of summary judgment in favor of an insurance company, holding that claims brought against a policyholder triggered a duty to defend. Judge Wynn wrote the opinion, in which Judge Gregory and Judge Diaz joined.

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How likely is it that a police officer will mistakenly cut when using a knife to remove a drug-containing baggie tied around a particular male body part?

Fourth Amendment cases sometimes raise questions that (one hopes) would otherwise never need to be asked or answered. A Fourth Circuit panel’s split decision in United States v. Edwards appears to turn on the answer to just such a question.

In the course of (what the Fourth Circuit appears to treat as) a permissible search, a Baltimore City police officer located a plastic sandwich baggie containing several packets of cocaine tied around a man’s penis. The officer proceeded to cut the baggie off with a knife. According to a Fourth Circuit panel majority consisting of Judge Keenan and Judge Motz, this action violated the Fourth Amendment and required suppression. According to Judge Keenan’s majority opinion, “in the absence of exigent circumstances, the right of the police to seize contraband from inside Edwards’ underwear did not give the officers license to employ a method creating a significant and unnecessary risk of injury.”

As Judge Diaz points out in dissent, however, the record evidence does not support the majority’s assertion about the nature of the risk posed by the police’s actions. The majority suggests that the police could have requested and used blunt-edged scissors, but the knife may have been no riskier: “the record of the suppression hearing offers little information about the knife, the manner in which it was used to remove the contraband, or how long it took to accomplish the task. The district court, moreover, made no mention of the knife in its ruling. This omission was not an oversight, but rather reflected the fact that the knife was not the focus of the parties’ evidentiary presentations.”

At points, Judge Keenan’s opinion hints at another possible rationale for the majority’s ruling–that the use of a knife in this circumstance “could only cause fear and humiliation.” But the majority does not rest on this rationale, and never undertakes a comparative assessment of the fear and humiliation involved in alternative methods of removing a baggie from this sensitive location. As Judge Diaz points out, the alternatives of untying, removing, or tearing the baggie, “would require that officers physically touch Edwards’ penis. . . . [And] a rule that directs officers to place their hands on a defendant’s genitals as a first option for seizing contraband in a baggie that the defendant has chosen to strap to his penis seems no more attractive than the careful use of a knife.”

Judge Diaz argues not only that the police did not violate the Fourth Amendment, but also that, if they did so, suppression was not the appropriate remedy.In responding to this point, the majority contends that suppression here serves the goal of deterrence. According to Judge Keenan, “Baltimore City police officers conduct searches inside the underwear of about 50 percent of arrestees, in the same general manner as the strip search performed on Edwards.” But the majority does not seek to deter such searches, only the use of a knife to remove what some of those searches reveal. And this poses a more significant problem: If the behavior to be deterred is routine, and if it poses a significant and unnecessary risk of harm, then wouldn’t the police have made a stray cut before now?

This question, and others, are raised by the panel opinion. It will be interesting to see whether, and if so, how, the case is revisited in en banc proceedings.

For those who track such things, all three judges on the panel were appointed by Democrats. Two were appointed by President Obama (Judge Keenan and Judge Diaz) and one by President Clinton (Judge Motz). Two judges are female (Judge Keenan and Judge Motz) and one judge is male (Judge Diaz).

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Put that knife away, Baltimore Police, and call for the blunt-edged scissors?

When the police find a plastic baggie full of suspected drugs attached to a man’s penis, does it violate the Fourth Amendment for the police to cut it off with a knife? “Yes,” according to a 2-1 vote of the Fourth Circuit. Judge Keenan wrote the majority opinion in United States v. Edwards, in which Judge Motz joined. Judge Diaz authored a dissent.

Some snippets from the majority opinion:

As they were looking inside Edwards’ underwear, the officers saw that there was a plastic sandwich baggie tied in a knot around Edwards’ penis. From Bailey’s vantage point and with the assistance of the flashlight beam, Bailey could also see that the sandwich baggie contained smaller blue ziplock baggies, which contained “a white rock-like substance.” Based on his training and experience, Bailey concluded that the baggie and its contents were consistent with the packaging or distribution of a controlled substance.

Upon discovering the sandwich baggie tied around Edwards’ penis, another officer held Edwards’ pants and underwear open while Bailey put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards’ penis with the knife. After Bailey cut the baggie,  he reached into Edwards’ underwear and removed the baggie and its contents. During this procedure, Edwards remained in handcuffs with his hands secured behind his back.

* * *

We conclude that Bailey’s use of a knife in cutting the sandwich baggie off Edwards’ penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness. The fortuity that Edwards was not injured in the course of this action does not substantiate its safety.

* * *

Manifestly, in the present case, there were several alternatives available to the officers for removing the baggie from Edwards’ penis, which neither would have compromised the officers’ safety nor the safety of Edwards. These alternatives included untying the baggie, removing it by hand, tearing the baggie, requesting that blunt scissors be brought to the scene  to remove the baggie, or removing the baggie by other non-dangerous means in any private, well-lit area. Thus, we conclude that, in the absence of exigent circumstances, the right of the police to seize contraband from inside Edwards’ underwear did not give the officers license to employ a method creating a significant and unnecessary risk of injury.

A cut from Judge Diaz’s dissent:

The majority does not suggest that the officers should have allowed Edwards to remove the contraband himself. But while it posits certain alternatives for seizing it, I fail to see  how the majority’s suggestions are any more reasonable than the method chosen by the officers. The first three suggestions—untying, removing, or tearing the baggie—would require that officers physically touch Edwards’ penis. In my view, however, a rule that directs officers to place their hands on a defendant’s genitals as a first option for seizing contraband in a baggie that the defendant has chosen to strap to his penis seems no more attractive than the careful use of a knife. The majority next suggests that officers should have arranged for blunt scissors to be brought to the scene to remove the baggie. But this assumes that the knife actually used was not blunt, whereas the record offers no evidence as to its characteristics. Finally, the majority’s catch-all suggestion that officers should have used “other non-dangerous means in any private, well-lit area,” Maj. Op. at 14, does not specify a method of removal, but instead relies on the location of the search—a Bell factor that the majority explicitly declines to adopt as a basis for its decision. Thus, while criticizing the officers’ use of the knife as unreasonable, the majority has failed to articulate a method of removal that is any more reasonable. On that issue, the majority is in good company, for even Edwards’ counsel conceded at oral argument that there was “no good option” for removal.

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Split Fourth Circuit panel finds no TILA violation when foreclosing bank used wrong (but good enough) financing disclosure form

The Fourth Circuit held today that SunTrust Mortgage did not violate TILA when, in the course of extending additional credit to an existing creditor in a refinancing, it used a disclosure form derived from Model Form H-8 in the Appendix to Regulation Z, rather than a form derived from Model Form H-9. Judge Niemeyer wrote the majority opinion for a split Fourth Circuit panel in Watkins v. SunTrust Mortgage, Inc. Judge Diaz joined Judge Niemeyer’s opinion. Judge Wynn dissented.

Judge Niemeyer’s opinion begins as follows:

The issue presented is whether a lender violates the Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”), in providing notice to a borrower who is refinancing his mortgage of the right to rescind the transaction, using a form of notice substantially similar to Model Form H-8 in the Appendix to Regulation Z, 12 C.F.R. pt. 226, rather than using Model Form H-9, which was designed for refinancing transactions.

The district court dismissed the borrower’s complaint for failure to state a claim upon which relief could be granted, concluding that although Model Form H-8 is somewhat different from Model Form H-9, the use of Model Form H-8 in a refinancing transaction did not amount to a TILA violation.

We agree. Model Form H-8 includes all of the information required by TILA and Regulation Z to advise borrowers of the right to rescind a consumer credit transaction, including a refinancing transaction, and accordingly we affirm.

In dissent, Judge Wynn accuses the majority of ignoring binding circuit authority requiring strict conformity with TILA:

Whereas the majority holds that the notice provided by Form H-8 is close enough to meet the disclosure requirements of the Truth in Lending Act, this Court in Mars v. Spartanburg Chrysler Plymouth, Inc., 713 F.2d 65, 67 (4th Cir. 1983), made it plain that the Truth in Lending Act requires strict compliance. But, tellingly, the majority ignores our binding and controlling decision in Mars by not even citing to it.

Judge Wynn argues that the majority should not have looked for substantial similarity, for once SunTrust Mortgage decided to comply by relying on the appropriate model form, it needed to pick the right model form:

Here, SunTrust chose to use the “appropriate model form in Appendix H” disclosure method rather than to devise its own form to provide “substantially similar notice” required under the Truth In Lending Act. Thus, the dispositive issue on appeal is whether a lender that chooses to use the “appropriate model form in Appendix H” must use the appropriate form to comply with the Truth in Lending Act. Certainly yes. As it is undisputed that SunTrust did not use the appropriate model form, it follows that SunTrust was not in compliance with the Truth in Lending Act. It is a simple and straightforward result that is readily understood by both the lender and borrower. In  short, the intervention of courts should end when it is determined that a lender who chose to use the appropriate model disclosure form method used the wrong form.

Judge Wynn also twice suggests that the majority’s holding results from a failure to exercise “judicial restraint.”

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Fourth Circuit affirms denial of suppression motion, recognizing limits to recent suppression holdings

The federal government has had difficulty beating back suppression motions in the Fourth Circuit this past year. Last week, however, a panel unanimously affirmed the denial of a suppression motion. Judge Wilkinson wrote the opinion in United States v. Glover, which was joined in by Judge King and Judge Diaz. (Attentive readers may also have noted that Judge Wilkinson authored the majority opinion in United States v. Braxton a couple of weeks ago, also affirming denial of a suppression motion–that time, over the dissent of Judge Wynn.)

The opinion begins as follows:

Paul Glover entered a conditional plea of guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He now appeals the denial of his motion to suppress evidence obtained during a stop-and-frisk in a deserted gas station parking lot in the wee hours of the morning. For the reasons that follow, we affirm the district court’s denial of Glover’s suppression motion.

The stop-and-frisk here occurred after officers observed the defendant lurking outside of the range of the closed circuit cameras at a 24-hour service station at around 4:40 a.m. Judge Wilkinson writes that the circumstances facing the officers were far different than those in United States v. Foster, 634 F.3d 243 (4th Cir. 2011), which “concerned the stop of  a driver believed to be involved in drug activity in the middle of the day in a low-crime area.”

With respect to police reliance on nervous behavior, which the Fourth Circuit criticized in United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011), Judge Wilkinson wrote:

While it is important not to overplay a suspect’s nervous behavior in situations where citizens would normally be expected to be upset, see United States v. Massenburg, 654 F.3d 480, 490 (4th Cir. 2011), Glover was furtively watching the attendant from a location outside the range of surveillance cameras, glancing around the corner, and pulling his head back well before Officers Skipper and Archer stopped the patrol car. Such conduct is far more like the casing of the store in Terry than the case of nerves a citizen might ordinarily exhibit in interactions with police.

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