Posts Tagged ‘Hudson’

In Tobey v. Jones, the Fourth Circuit needed to decide whether Aaron Tobey’s First-Amendment-based Bivens claim for money damages against two TSA officers (Jones and Smith, their real last names) survived the federal government’s 12(b)(6) motion. These officers (TSOs) radioed for police assistance after Tobey, having been selected for “enhanced secondary screening” at a Richmond (VA) International Airport security screening checkpoint, stripped down to his running shorts and socks to reveal portions of the Fourth Amendment written on his bare chest. When the airport police arrived, they arrested Tobey. They then questioned him and ultimately released him after about an hour. Tobey boarded his plane without any further difficulty. A few months later he sued the TSOs (Jones and Smith), the airport police, the airport commission, and some higher-level officials at the commission, the Department of Homeland Security, and the TSA.

The district court (Judge Hudson, EDVA) dismissed all of the claims except for a First Amendment-based claim that Smith and Jones “caused [Tobey’s] seizure . . . because of the message conveyed by [his] silent, nonviolent expression of objection to the TSA’s screening policies . . . and thereby engaged in content and/or viewpoint discrimination.” The government appealed this denial.

A split panel of the Fourth Circuit affirmed. Judge Gregory, joined by Judge Duncan, held that Tobey’s complaint “plausibly set forth a claim that the TSA agents violated his clearly established First Amendment rights.” Judge Wilkinson authored an empassioned dissent.

Eugene Volokh and most commenters at Volokh Conspiracy have expressed agreement with the panel majority’s analysis. Are they  wrong about what “sounds right”? I think so. Not because of disagreement with Volokh’s take on the First Amendment, but because he focuses on First Amendment principles apart from the appropriate pleading rules and the particular facts of the case.

Viewed through the lens of Twombly and Iqbal, Tobey needed to plead facts rendering it plausible that the TSOs called the police because of disagreement with his message rather than because he stripped off his shirt and pants in the screening area. He did no such thing. Indeed, according to the district court, Tobey’s counsel conceded at oral argument that his behavior was bizarre, “and that the TSOs were justified in summoning the RIC Police for further inquiry.” It seems to me that should be the end of it, for that is all the TSOs are alleged to have done–summon the police. When people act in a concededly “bizarre” fashion in an airport screening area, the TSOs should call the police and let them handle the bizarreness. Whether the police should have handcuffed and arrested Tobey is a separate question from whether the TSOs should have called the police to deal with Tobey. And it is only that latter question that was at issue in the Fourth Circuit appeal.

I should also add that Judge Wilkinson’s take on the effect of taking off one’s shirt and pants in an airport screening area seems better grounded in the reality of modern air travel than Judge Gregory’s. Judge Wilkinson wrote that “[o]utside a few limited contexts, such as public swimming pools, removing one’s shirt and pants will always attract other people’s attention and distract them from whatever they happen to be doing.” Judge Gregory responds that “[p]assengers routinely remove clothing at an airport screening station, and in fact are required to do so by TSA regulations.” But this misses the point. Passengers do not routinely go bare-chested, nor are they are required to do so by TSA regulations. Judge Wilkinson may have overstated the case slightly in asserting that “[i]t is sheer fancy to think that defendants had anything on their minds other than eliminating the distraction that Tobey’s state of dishabille was causing.” But if so, only slightly. And in any event it was Tobey’s burden to allege facts making the alternative retaliation-for-protest explanation plausible.

Judge Gregory’s appeal to “autonomy and the celebration of difference” seems misplaced at an airport screening point. And he surely overstates the case when he writes that “[f]or us to hold today that it is reasonable to cause an arrest due to bizarre behavior and nothing more would violate the most basic [tenets] of our Constitution.” For that redescribes what the TSOs were alleged to have done (call the police) with what followed from that call through the decisions and actions of the police (Tobey’s arrest). Judge Gregory writes that “[i]t is an undoubtedly natural consequence of reporting a person to the police that the person will be arrested; especially in the scenario we have here, where TSA and RIC police act in close concert.” Yes, here, an arrest was a consequence. But to call it an “undoubtedly natural consequence” is to let the adverb and the adjective do too much work, depriving the police of any independent agency. Or so it seems to me.


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In keeping with prior practice of flagging well-written student notes related to topics covered on this blog, consider taking a look at Securing State Sovereign Standing, by Katherine Mims Crocker, forthcoming in the November 2011 issue of the Virginia Law Review. The note brings conceptual clarity to a confusing area of standing doctrine, and argues that Virginia “possesses sovereign standing” in its challenge to the individual mandate in the Affordable Care Act. The note endorses the standing holding of Judge Hudson’s decision rejecting the federal government’s motion to dismiss for lack of jurisdiction in Virginia v. Sebelius, and some of the subsidiary arguments supporting it. The note also takes on some of the federal government’s arguments for dismissal for lack of standing on appeal to the Fourth Circuit.

I disagree with the note’s conclusion with respect to standing in Virginia v. Sebelius, as well as some of the subsidiary arguments. But I agree with the note’s careful reading of Massachusetts v. Mellon as rejecting not only parens patriae standing, but also sovereign interest standing.

My jurisdictional analyses of Virginia v. Sebelius (in this amicus brief and this draft law review essay) have not focused directly on state sovereign standing, but on statutory subject-matter jurisdiction, advisory opinion doctrine, and the redressability prong of standing analysis. Because so much of the Fourth Circuit argument and the Virginia Attorney General’s defense of jurisdiction depends on arguments about state sovereign standing, I aim to devote some future posts to addressing the topic more directly than I have in the past.

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That is the question at the heart of the Fourth Circuit’s 2-1 unpublished disposition today in Minnesota Lawyers Mutual Insurance Company v. Batzli. The case is a dispute between an insurance company and its insured over whether the insured complied with a notice requirement in the policy. That dispute turns on the question of when the insured could anticipate that a claim for legal malpractice might be brought against him for a drafting error known to him and his client. A jury ruled for the insured, and Judge Hudson (EDVA) denied the insurance company’s renewed motion for judgment as a matter of law. The Fourth Circuit affirmed Judge Hudson. The appellate court’s decision is fact-specific. Of potential interest to those who follow the Fourth Circuit is the voting breakdown. Judge Wynn wrote the opinion for the court, joined by Judge King. Judge Shedd authored a dissent.

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