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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Fourth Circuit revives Rosetta Stone trademark claims against Google

The Fourth Circuit today partially reversed a district court decision that had granted broad protection to Google against trademark infringement claims arising out of its use of trademarked terms in keywords and advertisement text. Chief Judge Traxler wrote the opinion for the court in Rosetta Stone v. Google, in which Judge Keenan and Senior Judge Hamilton joined.

The language software company Rosetta Stone sued Google in 2009 asserting claims of: (1) direct trademark infringement; (2) contributory infringement; (3) vicarious infringement; (4) trademark dilution; and (5) unjust enrichment (under Virginia law). The district court granted summary judgment to Google on all five counts (see here for district court’s trademark claims analysis). Today’s decision affirms the win for Google on vicarious infringement and unjust enrichment, but vacates and remands with respect to direct infringement, contributory infringement, and trademark dilution.

With respect to direct infringement, the appeals court rejected Rosetta Stone’s argument that it is reversible error for a district court to decline to address all factors in the Fourth Circuit’s nine-factor, non-exclusive, totality-of-the-circumstances test for likelihood of confusion. The opinion suggests, however, that “[i]n the future . . . a district court opting not to address a given factor or group of factors should provide at least a brief explanation of its reasons.” The appellate court did, however, fault the district court for applying a too-demanding standard to Rosetta Stone’s evidence of intent to cause confusion, actual confusion, and consumer sophistication. This portion of the opinion contains a discussion of anecdotal and survey evidence, including in-house studies on confusion performed by Google. The Fourth Circuit also criticized the district court’s functionality analysis for focusing on whether Rosetta Stone’s mark made Google’s product more useful, rather than considering whether the mark was functional as Rosetta Stone used it. The appellate disposition of this functionality affirmative defense precludes Google’s further use of it in the litigation, but the remainder of the disposition simply leaves open the path for future litigation over the facts.

On contributory infringement, the Fourth Circuit held that the district court relied too heavily on the Second Circuit’s decision in Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010), which was an appeal from a jury verdict rather than a decision at the summary judgment stage.

Finally (with respect to the claims that the Fourth Circuit vacated), the court held that the district court impermissibly collapsed good faith and nominative fair use into a single question in assessing trademark dilution. The appeals court further held that the district court mistakenly read Louis Vuitton Malletier S.A. v. Haute Diggity Dog, L.L.C., 507 F.3d 252 (4th Cir. 2007) to require proof of actual economic loss or reputational injury, rather than a likelihood of dilution.

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Hamilton on precedent and arbitrary discretion

From Federalist No. 78:

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.

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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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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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Shot to scare Chill Will results in Fourth Circuit Confrontation Clause ruling

The police in Raleigh, NC pulled over a Crown Victoria and found a firearm in the console between the passenger and driver. The vehicle had broken some traffic laws, but the real reason that the policed pulled it over was because Officer Greenwood had relayed to the stopping officers information from a confidential informant about the presence of a man with a gun in the vehicle. The vehicle’s passenger first denied but later admitted that the gun was his. He stated that he had fired the gun earlier in the day to scare Chill Will, a man with whom he was having a dispute. At trial, the district court admitted Officer Greenwood’s testimony about what the confidential informant told him, not for the truth of the matter but for the purpose of explaining why the police acted as they did.

The Fourth Circuit affirmed the resulting conviction today in an unpublished opinion in United States v. Washington. Judge Wynn authored the opinion, in which Judge Keenan and Senior Judge Hamilton concurred. The panel rejected Confrontation Clause and Rule 403 challenges.

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A warning about paywalls when relying on social science evidence in defending the constitutionality of a law

The Fourth Circuit’s opinion in United States v. Staten, issued last month, contains several observations about the use of social science reports. The government relied on a number of studies to establish the rate of domestic violence, the rate of recidivism among domestic violence offenders, and the use of firearms by domestic violence offenders. The government did not, however, introduce paper copies of these reports in the district court, asserting that they were freely available over the Internet. The Fourth Circuit found this approach to be generally okay (though not the best practice), with one exception:

We believe the far better practice is for the government to offer copies of whatever reports/articles upon which it seeks to rely in attempting to carry its burden under intermediate scrutiny for inclusion in the record at the district court level. However, with respect to the reports upon which the government relies in the present case, because Staten has never disputed the accuracy of either the government’s representations as to their ready availability via the Internet or the accuracy of the government’s representations as to their content, we reject Staten’s argument that the government cannot rely upon the reports to meet its burden under intermediate scrutiny in this case. We also note that, with one exception which we will address later in this opinion, we had no trouble viewing such reports via the Internet using the websites included in the addendum to the government’s appellate brief.

The one exception was an article from the Journal of the American Medical Association, which required a paid subscription for access to the full text. Senior Judge Hamilton, writing for the Fourth Circuit panel, wrote:

The online citation provided by the government for the full-text version of this report requires a paid subscription to the Journal of the American Medical Association. Fortunately for the government, we were able to confirm the accuracy of the government’s citation to our full satisfaction by viewing an abstract of the report on the Internet website for the Journal of the American Medical Association and by observing that the Seventh Circuit, sitting en banc, cited the same report for the same statistic in Skoien II, 614 F.3d at 643. Nonetheless, we are hereby putting the government on notice that, while it caught a break under the circumstances this time, if a social science report, article, or raw data upon which it relies is not readily available free of charge on the Internet, the government must offer a paper copy in the district court for the record in order for it to be considered.

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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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Everything but footnote 8

The opinion line-up for United States v. Bell, a recent Fourth Circuit opinion ordering resentencing in a drug case, showcases a defection by two of the three judges. It reads as follows:

Judge Davis wrote the opinion, in which Judge Floyd and Senior Judge Hamilton joined except as to footnote 8. Senior Judge Hamilton wrote an opinion concurring in part and concurring in the judgment, in which Judge Floyd joined.

The defecting-inducing footnote states, in part:

Perhaps in some future case we might be required to decide whether a defendant in circumstances similar to Bell’s bears a burden of production as to his or her personal consumption of a validly prescribed medication. But that question is not before us; in this case, whatever burden of production Appellant Bell may have had was satisfied by the very evidence produced by the government itself, along with the drug screens and evidence of her longstanding legitimate medical needs. Thus, to the extent the concurrence purports to announce a rule imposing an “obligation” on such a defendant to produce evidence of personal consumption at sentencing, it constitutes mere dicta and, in any event, was not argued by the government.

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Fourth Circuit rejects vagueness challenge to conviction for producing a false identification document that “appears to be issued” by the United States

For several years, Richard Jaensch used a fake ID to get through airport security faster by giving TSA agents the impression that he was a foreign diplomat. The government eventually caught up with him, and he was convcted under 18 U.S.C. § 1028(a)(1), which criminalizes the use of a false identification document that appears to be issued by or under the authority of the federal government. He was convicted and sentenced to a $750 fine and one year of probation. On appeal, Jaensch argued, among other things, that § 1028(a)(1).

In a published opinion in United States v. Jaensch, the Fourth Circuit held unanimously that the statute was not vague as applied to Jaensch. The panel also rejected Jaensch’s other challenges and affirmed his conviction and sentence. Judge Wynn wrote the opinion, which was joined by in Judge Agee and Senior Judge Hamilton.

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Fourth Circuit affirms child pornography convictions and sentence over Fourth Amendment, statutory, and Eighth Amendment challenges

The Fourth Circuit yesterday issued a published opinion in United States v. Wellman affirming convictions on three offenses related to child pornography possession along with a ten-year sentence on one of the counts. Judge Keenan wrote the opinion, which was joined in by Judge Wynn and Senior Judge Hamilton.

In disposing of the defendant’s Fourth Amendment claim, Judge Keenan assumed without deciding that the content of the warrant application was insufficient to find probable cause, but held that the evidence was not subject to suppression because the West Virginia State Police relied in good faith on the issued search warrant. Although the structure of this reasoning does not yield clear guidance about what must be included in a warrant application, the panel did “decline to impose a requirement that a search warrant application involving child pornography must include an image of the alleged pornography.”

The opinion rejects the defendant’s statutory argument as an impermissible “attempt to graft a subjective, fact-based knowledge requirement onto an objective legal standard.”

The Eighth Amendment proportionality analysis concludes easily that Congress acted “well within its authority” in providing for a ten-year sentence for recidivist possessors of child pornography. In the lead-up to the analysis, Judge Keenan quotes a First Circuit decision stating that the instances of disproportionate sentences invalid under the Eighth Amendment should be “hen’s-teeth rare.” This suburbanite does not know what that means based on any experience with hens, but I suppose the number of such sentences is not much more than a goose egg.

 

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4 years for an illegal liquor operation and Social Security disability fraud

The Fourth Circuit earlier this week issued an unpublished per curiam opinion in United States v. Smith affirming a conviction and 48-month sentence arising out of an illegal liquor operation in Halifax County, Virginia. In addition to providing some insight into the mechanics of running an illegal still, the opinion contains a discussion of the Fourth Amendment’s open fields doctrine, a formula for calculating the tax loss to the government from the illegal liquor operation (including $13.50/gal, with production estimated based on sugar purchases and other records), and dueling video surveillance systems. The panel consisted of Judge Agee, Judge Wynn, and Senior Judge Hamilton.

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Fourth Circuit ACCA decision on divorced-from-reality law professor hypotheticals, common sense, and floating fast-food restaurants

The Fourth Circuit issued six opinions in argued cases between yesterday and the day before (3 published and 3 unpublished). One of the published opinions, holding that an ACCA enhancement was appropriate and reversing the district court’s contrary determination, featured three separate opinions weighing in on the value of common sense.

Judge Agee wrote the majority opinion in United States v. Foster, in which Senior Judge Hamilton joined. Judge Wynn dissented. Senior Judge Hamilton wrote a concurring opinion largely responding to Judge Wynn.

The issue in Foster is one that has roiled the Fourth Circuit in recent times: the propriety of a sentencing enhancement under the Armed Career Criminal Act. In this case, the Shepard documents relied upon by the government showed convictions for breaking and entering the “Sunrise-Sunset Restaurant” and the “Corner Market.” The issue was whether it is appropriate to infer that these convictions were for breaking and entering a building or structure. The precise details of the legal dispute aside for the moment, here are some quotations providing a sense of the back and forth on the panel.

Judge Agee, quoting the First Circuit:

“The ACCA is part of the real world, and courts should not refuse to apply it because of divorced-from-reality,law-school-professor-type hypotheticals that bear no resemblance to what actually goes on.” Rainer, 616 F.3d at 1216. As we concluded with respect to the “business” in Shelton, we find that the indictments’ references to the “Sunrise-Sunset Restaurant” and the “Corner Market,” in the context of the applicable Virginia statute, ensure that Foster entered buildings or structures and was thus convicted of generic burglary for purposes of the ACCA.

Senior Judge Hamilton, concurring:

I write separately to make three observations concerning the use of common sense in ACCA cases. First, there is nothing truly remarkable about the use of common sense in ACCA cases. * * *

Second,  leaving our common sense at the front door makes little sense in examining court documents in ACCA cases. For example, what if the Virginia state court documents reflected that Foster was convicted of breaking and entering into an “Outback Steakhouse” or a “Wawa”? Under the dissent’s interpretation of Shepard, a district court would be precluded from using such a conviction because the documents themselves do not prove to an absolute certainty that every Outback Steakhouse or Wawa is affixed to the ground. As the dissent sees it, our common sense cannot step in and tell us what we already know because there is an infinitesimally small possibility that there is some Outback Steakhouse or Wawa floating on a river somewhere in a far-off land. * * *

Finally, the dissent implies that the use of common sense “replace[s the district court’s] fact-finding with our own.” The use of common sense is not the equivalent of fact-finding. The standard of review in ACCA cases is de novo, United States v. Thompson, 421 F.3d 278, 280-81 (4th Cir. 2005), and the use of common sense here is the same common sense courts routinely employ in determining the meaning of a state or federal statute.

Judge Wynn, dissenting:

None of the judicial records pertaining to Defendant’s prior convictions contain any allegation that the Corner Market or the Sunrise-Sunset Restaurant are buildings or structures; they are referred to only by their proper names. Indeed, nothing in the record either proves or disproves that those establishments are located in buildings or structures, or that Defendant “necessarily admitted” to those facts as part of his guilty plea. If not from these judicial records, where then did the majority obtain its “evidence” that the Sunrise-Sunset Restaurant and the Corner Market are buildings? [footnote 2]

[Footnote 2: In fact, the majority’s statement that “[a] defendant who pleads guilty to the burglary of a McDonald’s Restaurant, under similar circumstances to this case, necessarily pleads guilty to the burglary of a building or structure  illustrates perfectly the danger of such speculation based only on common sense or logic. Ante p. 11. Notably, it is not apparent what “similar circumstances” would render the per se determination that a McDonald’s Restaurant is a building for purposes of invoking the ACCA. Without some extrinsic knowledge of the circumstance of location in this case or another, it could well fit within the description of the McDonald’s Restaurant that operated out of a riverboat in Saint Louis for twenty years. See http://www.yelp.com/biz/mcdonalds-riverboat-st-louis (last visited Nov. 10, 2011); http://www.flickr.com/photos/tom-margie/2864343408/lightbox/ (last visited Nov. 10, 2011).

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Catching up with the Fourth Circuit’s five published opinions this past week (and one from the prior week)

It’s been a busy week here in Richmond, and I’ve fallen behind a bit in passing along notable Fourth Circuit opinions. Here’s a catch-up post reporting on six published opinions: five from this past week, and one from the week before that.

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Fourth Circuit affirms dismissal of TVPA and ATS claims against seller of mustard gas component used by Iraq

The Fourth Circuit affirmed the dismissal of claims brought by individuals of Kurdish descent against a chemical manufacturer who sold a component of the mustard gas used by Iraq. The plaintiffs were either victims of Iraqi mustard gas attacks or family members of victims. The defendant was a corporation that sold thiodiglycol (or “TDG”) in transactions that allegedly resulted in the TDG being used by Iraq to make mustard gas.

The court held unanimously in Aziz v. Alcolac, Inc. that (1) the Torture Victims Protection Act does not provide a cause of action against corporations, that (2) (a) the Alien Tort Statute does allow for aiding and abetting liability, but (b) only for conduct that is purposeful, and that (3) the plaintiffs in this case failed to plead facts sufficient to support the intent element. The court declined to address the contention–apparently first raised on appeal–that corporations cannot be sued under the ATS (an issue that has split the Second and D.C. Circuits).

Judge Diaz wrote the opinion, which Judge Motz and Senior Judge Hamilton joined.

According to Judge Diaz’s opinion, the Fourth Circuit’s holding under the TVPA widens a pre-existing circuit split. This is not an area in which I have expertise, but the Fourth Circuit’s holding seems to be on the correct side of the split.

In addition to those with a specific interest in the TVPA and the ATS, the opinion is likely to be of more general interest for its discussion of what sources to look to in ascertaining the content of the law of nations. With respect to the mens rea standard for aiding and abetting liability, the Fourth Circuit treats the Rome Statute as more authoritative than the decisions of ICTY and ICTR tribunals. This aspect of its decision marks a conscious methodological departure from a previous analysis offered by the D.C. Circuit in Doe VIII v. Exxon Mobil Corp. 

(For earlier coverage of the Doe VIII holding on corporate liability under the ATS, see this post by Jonathan Adler at Volokh Conspiracy.)

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Fourth Circuit Injects Fifth Amendment Issue into Confidential Informant Saga in United States v. Williamson

The Fourth Circuit today issued a unanimous, unpublished opinion in United States v. Williamson, a case dealing with the admissibility of a recorded statement made to a confidential informant. Most unanimous unpublished opinions raise no noteworthy issue. But Williamson seems unusual because the court injected a Fifth Amendment issue into a case that came on remand from the Supreme Court after a procedural history that focused everyone’s attention on a Sixth Amendment issue. Moreover, the Fourth Circuit’s decision to highlight a potential new issue for review is difficult to understand because it appears to make little practical difference to how the case will ultimately be resolved (at least so far as this non-specialist in criminal procedure can tell).

More after the jump.

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Fourth Circuit: Suppression of Drugs Seized During I-95 Traffic Stop Affirmed

The Fourth Circuit has affirmed the suppression of drugs seized during a traffic stop on I-95 in Maryland. Senior Judge Hamilton wrote the opinion in United States v. Digiovanni, which Judges Motz and Diaz joined.

A few tidbits from the opinion are after the jump below. From the non-specialist point of view, there seem to be a few take-aways for civilian motorists and law enforcement alike. For civilian motorists: (1) pack your shirts in a garment bag, or you might be suspected of being a drug trafficker; (2) don’t keep your car too clean, or you might be suspected of being a drug trafficker; (3) never off-handedly say “oh boy” while answering an officer’s question; (4) when asked if you use marijuana, don’t say “I never smoked marijuana in my life. It makes me sleepy.” Most important, don’t agree to transport over 34,000 oxycodone pills from Miami to Boston. The take-away for law enforcement is to get consent faster, running through questions after plugging in license information.

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