Wake Forest Law Review
2Oct

Judges of the Fourth Circuit – Hon. J. Dickson Phillips, Jr.

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By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM), https://www.newsobserver.com/news/local/article170309727.html.

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017), http://www.law.unc.edu/news/2017/08/29/remembering-dean-james-dickson-phillips-jr-48/.

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., http://phillips.law.unc.edu/judicial-service/(last visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017), https://perma.cc/LN44-Z97N.

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.

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25Sep

Fourth Circuit Rules on Mandatory Age-Discrimination Remedies

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By Mackenzie Bluedorn and Jacqueline Canzoneri

Relevant Facts

This case began as an age discrimination claim.  The Equal Employment Opportunity Commission (“EEOC”) initially challenged that Baltimore County’s (“County”) retirement plan violated the Age Discrimination in Employment Act (“ADEA”) because its age-based contributions required older employees to pay higher percentages of their salaries.[1]  When adopting its retirement benefit plan in 1945, the County stated that employees were eligible to retire and receive pension benefits at the age of 65, no matter how long the individual had actually been employed and contributing the plan.[2] Because the payments of an employee who joined the plan at an older age would accrue less interest than payments made by younger employees before the employees actually started to draw from the fund, the County determined that older employees should be charged higher rates.[3] Although the retirement benefit plan was amended several times over the years, the different contribution percentages based on age were never fully eliminated.[4] In response to this policy, the EEOC first brought civil suit in the District Court of Maryland in 2007, requesting injunctive relief to bar the discriminatory contribution percentages and reimburse employees subject to the age discrimination through back pay.[5]

 

Procedural Posture

This opinion was the third issued in a series of appeals for this case.  In 2010, the court of appeals initially reversed and remanded the district court’s holding in favor of Baltimore County, prompting the district court to reconsider whether the retirement benefit rates violated the ADEA.[6]  The issue once again reached the court of appeals for opinion in 2014. The second time, the district court had determined that the rates were impermissible and granted partial summary judgment on liability in favor of the EEOC, but the court of appeals then remanded again for consideration of damages.[7]  Although the parties had entered into a consent order for injunctive relief, the order did not discuss monetary relief and stated that the issue would be considered on a later date.[8]

The case then reached the court of appeals for a third time in 2018 after the EEOC appealed the district court’s determination on damages that it had discretion to deny an award of back pay otherwise afforded under the ADEA.  In reaching its decision, the district court held that it had discretion over whether or not to award that remedy or, in the alternative, that even if back pay were mandatory under enforcement of the ADEA, the court’s equitable powers still granted it the authority to deny back pay because the EEOC delayed so long in originally bringing this case.[9] The underlying issue for the court of appeals to consider on this third appeal was under the ADEA, is the monetary award of retroactive back pay discretionary, after liability has been established.

 

Plaintiff-Appellant Argument: Equal Employment Opportunity Commission (“EEOC”)

While Baltimore County grounded its argument in statutory language of the ADEA, the EEOC highlighted specific Fair Labor Standards Act (“FLSA”) provisions that have been incorporated into the ADEA.[10]  Most notably, the ADEA adopted the FLSA provision that violators “shall be liable” for back pay.[11] The EEOC argued that because back pay is a mandatory legal remedy under the FLSA, and because the ADEA adopted this language, it is not a discretionary issue. The choice of language reflected Congress’ intent that remedies under both of these statutes should be construed in the same manner. Thus, the District Court lacked discretion to determine whether back pay was owed.

 

Defendant-Appellee Argument: Baltimore County (“County”)

Baltimore County argued that back pay was properly denied because the district court is granted wide authority under the ADEA.  Specifically, the County claimed that the court has broad authority under 29 U.S.C. § 626(b) “to grant such legal or equitable relief as may be appropriate,” which could include the denial of back pay.[12]  Under broad authority, the court should be allowed to determine appropriate remedies, similar to the discretionary nature of back pay under Title VII. The County tried to expand precedent, by relying on various United States Supreme Court cases regarding Title VII pension issues.[13]  In those cases, the Court held that retroactive monetary awards are discretionary under Title VII and did not award any retroactive monetary relief.[14]

As the district court itself determined following the second remand of this case, it would be equitable to deny back pay in this instance, even if it were mandatory under the ADEA, because the EEOC had delayed initiating this suit for years.[15]  The County emphasized the long delay in the EEOC’s action, which led to the County incurring substantially more liability in back pay.[16]

 

Holding & Rationale

The Court of Appeals for the Fourth Circuit agreed with the EEOC’s interpretation of the ADEA’s language and concluded that retroactive monetary award of back pay is mandatory, not discretionary, upon the finding of liability.  The initial matter of liability was already decided through issuance of partial summary judgment in favor of the EEOC following the first remand of the case. To assess the statutory language of the ADEA, the court considered the plain language of the statute, congressional intent, United States Supreme Court precedent, and legislative history.

The court addressed the plain language of enforcement under 29 U.S.C. § 626(b).  As a threshold matter, the court stated that the ADEA was a remedial statute and therefore warrants liberal interpretation. Furthermore, because specific FLSA language regarding back pay was incorporated into the ADEA enforcement provision, interpretation of the provision should mirror prior interpretations of the relevant back pay provisions in the FLSA.[17]  As such, under the FLSA, retroactive monetary damages are considered mandatory. Thus, by extension, there was an apparent congressional intent that such damages should also be mandatory under the ADEA.[18]

In regard to relevant precedent, the court’s touchstone of inquiry was a United States Supreme Court case, Lorillard v. Pons,[19] where the Court applied a similar analytical framework while interpreting another portion of the ADEA.[20]  There, the Court stated that since the ADEA adopted specific FLSA language, it should be interpreted as its original counterpart was interpreted.[21] The Fourth Circuit also rejected the County’s reliance on the Title VII pension cases because there, back pay was an equitable remedy, whereas here under the ADEA, back pay would be a legal remedy.[22]

Next, the court considered legislative history.  While drafting the enforcement clause of the ADEA, Congress was faced with various potential enforcement mechanisms.[23]  Ultimately, Congress specifically chose to incorporate FLSA remedial measures into the ADEA.[24] This conscious decision of incorporation, and rejection of other options, is relevant legislative history that assists with judicial interpretation of statutory language.[25]

Finally, the court next addressed the district court’s alternative holding that, even if the statutory language indicated back pay was mandatory, the court still had discretion through its equitable powers.  The court of appeals fully rejected the district court’s comparison of the ADEA to Title VII, under which the Supreme Court had held that retroactive monetary awards were, in fact, discretionary.[26] The court of appeals explained that an award of back pay under Title VII was up to a court’s discretion because it was an equitable remedy; under the ADEA, however, back pay was a legal remedy, and only the amount of back pay was open-ended, to be determined at the discretion of the factfinder.[27]

 

Conclusion

The district court’s opinion was vacated and remanded for the consideration of the amount of back pay owed to the affected employees under the ADEA.

 

 

[1] EEOC. v. Baltimore Cty., 747 F.3d 267, 1–2 (4th Cir. 2014).

[2] Id. at 3.

[3] Id. at 4–5.

[4] Id. at 6.

[5] Id. at 7.

[6] EEOC. v. Baltimore Cty., No. 16-2216, 2018 U.S. App. LEXIS 26644, at *2 (4th Cir. Sept. 19, 2018).

[7] Id.

[8] Id.

[9] Id. at *2–*3.

[10] Id. at *4–*5.

[11] Id. at *5.

[12] Id. at *3.

[13] Id. at *9.

[14] Id.

[15] Id. at *3.

[16] Id. at *11.

[17] Id. at *5–*6.

[18] Id. at *7.

[19] 434 U.S. 575 (1978).

[20] Baltimore Cty., 2018 U.S. App. LEXIS 26644, at *8.

[21] Id.

[22] Id. at *10.

[23] Id. at *8.

[24] Id. at *9.

[25] Id.

[26] Id. at *10.

[27] Id.

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21Sep

Weekly Roundup: 9/17-9/23

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By: Thomas Cain & Noah Hock

Equal Employment Opportunity Commission v. Baltimore County

In this case, the Equal Employment Opportunity Commission (“EEOC”) sought back pay for employees based on Baltimore County’s discriminatory practice involving improper contribution rates to the county’s age-based employee benefit plan. The district court found the county liable under the Age Discrimination in Employment Act (“ADEA”) and granted the EEOC partial summary judgment, but it denied a motion for back pay because the EEOC’s undue delay in investigating substantially increased the county’s back pay liability. The Fourth Circuit vacated the district court decision, ruling that an award of back pay is mandatory under the ADEA after a finding of liability. Thus, the case was remanded for a determination of back pay amounts to which affected employees are entitled.

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14Sep

Weekly Roundup: 9/10 – 9/14

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By: Matthew Hooker

De Reyes v. Waples Mobile Home Park Limited Partnership

In this case, the Plaintiffs (four Latino couples) had sued the landlord of a mobile home park under the Fair Housing Act (“FHA”). The landlord required all individuals who lived in the park to provide proof of legal status in the United States. The Plaintiffs contended that this policy violated the FHA because it disproportionately impacted Latinos as compared to non-Latinos. In granting the landlord’s motion for summary judgment, the District Court ruled that the Plaintiffs had failed to establish a prima facie case to properly connect the disparate impact to the landlord’s policy. The Fourth Circuit disagreed, noting that the Plaintiffs had provided statistical evidence to demonstrate the disparate impact of the policy on Latinos. The Court also pointed out that while the Plaintiffs’ legal status might cause them to be unable to satisfy the policy, their claim was premised on disparate impact based on race. Thus, the Court clarified that the Plaintiffs’ legal status was essentially irrelevant, although the District Court had suggested otherwise. The Court therefore vacated the District Court’s grant of summary judgment and remanded the case for the District Court to properly consider the burden-shifting analysis under an FHA disparate impact claim.

Sierra Club v. Virginia Electric & Power Company

Here, the Sierra Club had sued Virginia Electric & Power Company d/b/a Dominion Energy Virginia (“Dominion”) under the Clean Water Act. Dominion had stored coal ash in a landfill and in settling ponds. It later detected arsenic leaching from the coal ash and seeping into the surrounding groundwater. Sierra Club alleged that Dominion had unlawfully discharged pollutants into navigable waters (violating 33 U.S.C. § 1311(a)) and violated certain conditions of its coal ash storage permit. After a bench trial, the District Court found Dominion violated § 1311(a) but ruled that Dominion did not violate the permit conditions. Both parties appealed. The Fourth Circuit held that the landfill and settling ponds were not “point sources” under the Clean Water Act, so they were not subject to § 1311(a)’s prohibitions. The Fourth Circuit agreed, though, with the District Court giving deference to the Virginia Department of Environmental Quality’s (VDEQ) interpretation of the permit conditions, since VDEQ issued the permit. Consequently, the Fourth Circuit reversed the District Court regarding the violation of § 1311(a) and affirmed with respect to the District Court’s ruling on the permit conditions.

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11Sep

First Amendment on Campus: Fourth Circuit Upholds University’s Discrimination and Harassment Investigation

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By Hayley Degnan

Facts

In 2015, Ross Abbott (“Abbott”), a student from the University of South Carolina (“USC”) met with USC’s director of campus life to approve a “Free Speech Event” hosted by two student groups, intending to draw attention to free speech threats across college campuses.[1] After its approval, the event proceeded on November 23, 2015, during which time, Abbott and other students circulated handouts detailing incidents of censorship at USC and on other college campuses, and displayed posters, including a “large red swastika” and the word “wetback.”[2] Directly following the event, the University’s Office of Equal Opportunity Programs (“EOP Office”) received three written complaints, including accusations that students involved in hosting the event made sexist and racist remarks.[3] The next day, Carl Wells (“Wells”), USC’s Assistant Director of the EOP Office, sent Abbott a letter that (1) instructed him to contact the office to appear for a required meeting, (2) stated the University may move to investigate and impose sanctions, and (3) claimed to have a “Notice of Charge” attached, although this notice was later revealed to be a clerical error.[4] Two weeks later, Wells had the mandated meeting with Abbott to discuss the complaints; he explained that this meeting was standard practice under USC’s “Student Non-Discrimination and Non-Harassment Policy” following the receipt of student complaints, and he offered Abbott the opportunity to explain Abbott’s own understanding of what transpired at the event. On December 23, 2015, two weeks after their meeting, Wells informed Abbot that the University found no cause for further investigation or sanction.[5]

Procedural History

In February 2016, Abbott and the two student groups involved in hosting the “Free Speech Event” (“Plaintiffs”), filed suit against multiple USC officials, alleging violations of their First Amendment rights. Plaintiffs made two claims: (1) that the University’s investigation procedures in connection with the discrimination and harassment complaints impermissibly chilled their free expression under the First Amendment, and (2) the University’s harassment policy on its face violated the First Amendment because it was overly broad and exceedingly vague.[6] Both parties moved for summary judgment on the first claim, and the district court granted summary judgment to the members of the university (“Defendants”). The district court also found in favor of the Defendants on the second claim, without reaching the merits due to the Plaintiffs’ lack of standing.[7]

The first issue considered by the district court involved whether the Plaintiffs’ speech had been so restricted as to constitute a First Amendment injury when Defendants required Abbott to attend a meeting in conjunction with the University’s “Student Non-Discrimination and Non-Harassment Policy.”[8] The court held that the Plaintiffs’ had suffered such an injury in the form of a “chilling effect” on their speech because the Plaintiffs could have reasonably feared discipline and self-censored otherwise protected speech during the investigation process.[9] However, the court ultimately held that the temporary chill on plaintiffs’ First Amendment speech, while present, was constitutional given USC’s narrowly drawn investigation practices under the “Student Non-Discrimination and Non-Harassment Policy” to achieve its compelling end of upholding the rights of its students to be free from illegal discrimination and harassment.[10]

The second issue considered by the district court was whether Plaintiffs had standing to bring a facial challenge and seek injunctive relief against Defendants’ policy. The court held that plaintiffs lacked the standing necessary to seek an injunction because they could not point to a non-speculative claim of future injury.[11] The Fourth Circuit Court of Appeals addressed both issues on appeal, first determining whether the district court erred in granting Defendants’ summary judgment motion on the as-applied First Amendment challenge, considering both (1) whether a First Amendment harm befell the plaintiffs, and (2) whether the Defendants’ “Student Non-Discrimination and Non-Harassment Policy” and related investigation practices survived under strict scrutiny review. 

Plaintiffs’ Arguments

The Plaintiffs advanced two major arguments in support of their claim that the University’s “Student Non-Discrimination and Non-Harassment Policy” violated their First Amendment rights by requiring Abbott to participate in a meeting with Wells.[12] First, they asserted that the investigation practices of the University used in accordance with the policy “chilled” their ability to exercise protected speech. In support, they explained that the inquiry process, which the University undertook to abide by its own policy, caused them to “reasonably fear” disciplinary action if they chose to sponsor other events.[13] Thus, they decided to cancel an annual Marijuana Legalization Rally, avoided putting on any additional events, and generally shied away from engaging in student discourse, which was a major part of their operations on campus. Furthermore, plaintiffs suggested that the “Notice of Charge” referenced in the letter and the mandate of a meeting, which came from an authoritative figure at the University would reasonably make any college student of “ordinary firmness” self-censor his or her expression out of fear.[14] Additionally, the Plaintiffs relied on Fourth Circuit authority to relay this “ordinary firmness” standard for self-censorship impeding on First Amendment rights.[15] Plaintiffs also suggested that this chilling effect extended from the date Wells sent Abbott the letter to the date when the action was filed, which is when Plaintiffs contended they first felt comfortable reengaging in their full First Amendment rights.

In addition, Plaintiffs argued that the investigative practices used by the Defendants in conjunction with the “Student Non-Discrimination and Non-Harassment Policy” violated their First Amendment rights because the process was not the least restrictive means to meet the University’s goal of protecting student rights.[16] Plaintiffs did not dispute that the University has a compelling interest in ensuring students are free from illegal discrimination and harassment at school; yet, they contested the University’s means of carrying out that end via their investigation under the “Student Non-Discrimination and Non-Harassment Policy.”[17] They argued that the University’s inquiry process was neither “necessary nor narrowly drawn” because the University was able to handle the student complaints without involving the Plaintiffs. To further this argument, Plaintiffs stressed that Defendants should have “weeded out” any insubstantial or frivolous complaints before resorting to the inquiry process.[18] Additionally, Plaintiffs contended that even if the Defendants rightfully resorted to investigating following some sort of screening, the defendants commenced the incorrect form of inquiry; they should have spoken to the complaining students or witnesses of the accused discriminatory or harassing behavior first.[19] Then, following this independent investigation, the Defendants could have contacted Abbott and determined how to proceed.

Defendants’ Arguments

In general, Defendants argued that they did not violate the First Amendment as a matter of law and that qualified immunity protected them from damages liability for any claimed harm by the Plaintiffs.[20] To further this argument, Defendants pointed out that they did not choose to take any action against the Plaintiffs in relationship to the “Free Speech Event” or ask them to refrain from exercising their full First Amendment rights during the time between the event and the letter from Wells or the letter and the meeting with Wells to lead them to self-censor. Furthermore, the Defendants noted that even after the meeting between Wells and Abbot that occurred as a result of its “Student Non-Discrimination and Non-Harassment Policy, the University did not impose any sanctions or restrictions on the Plaintiffs that may have harmed their abilities to express their First Amendment rights in this context.[21] As a more direct response to the Plaintiffs’ arguments about experiencing a “chilling” effect as a result of the letter from Wells, the Defendants argued that the Plaintiffs failed to establish that they actually experienced any such “chilling” or harm. None of the Plaintiffs identified any specific events they wished to sponsor and refrained from sponsoring during the time in question.[22]

In response to the second argument, the Defendants alleged that their inquiry procedure under the “Student Non-Discrimination and Non-Harassment Policy” survived at strict scrutiny. First, the Defendants argued that it was necessary to investigate these complaints as non-frivolous because although the event was approved, USC’s director of Campus life who approved the event, was not physically present at the time the event took place. Thus, she could not see the context within which it occurred and could not know that it was being carried out in the manner or for the purposes that the Plaintiffs articulated.[23] Second, it is not clear that meeting with Abbott was a more “restrictive” form of inquiring about the nature of what transpired, and in fact, giving individuals the opportunity to present their positions is often beneficial to them.[24]

Court’s Holding 

The Fourth Circuit Court of Appeals ultimately affirmed the district court’s ruling on both claims. To begin its discussion of the first issue embedded in the Plaintiffs’ as-applied challenge, the court recognized the Defendants’ qualified immunity unless Plaintiffs could show both “(a) the violation of a constitutional right, and (b) that the right was “clearly established” at the time of the First Amendment violation.”[25] The court first considered whether plaintiffs’ contention that their speech was chilled amounted to a harm under the First Amendment that would entitle them to damages.[26] Although noting some of the irony and novelty associated with the specifics of this case, the court recognized a precedential case in this area of First Amendment claims where it was previously willing to find the Plaintiff entitled to damages for a past chilling of his rights.[27] The court found that the standard articulated in that case and by the district court below was that a chilling of speech is only recognizable as a First Amendment harm “if it is objectively reasonable.”[28] In defining “objectively reasonable,” the court held that the action which purportedly caused the chilling must be “likely to deter a person of ordinary firmness from the exercise of the First Amendment.”[29] The court agreed with the Plaintiffs’ argument on this point, holding, “we do not doubt that a college student reasonably might be alarmed and thus deterred by an official letter from a University authority referring to an attached ‘Notice of Charge.’”[30]

However, the Court rejected the Plaintiffs’ proposed timeline for when this chilling effect took place, which Plaintiffs argued extended from the time Abbott received the letter to the time of this action. It found that following the meeting between Wells and Abbott, Defendants explained that it would not take further action against the Plaintiffs, thus no student of ordinary firmness would continue to self-censor.[31] In fact, the court suggested that had the University taken the opposite approach following the meeting between Wells and Abbott, the students may have continued to be deterred from exercising their rights and had a stronger claim. Following this point, the court recognized that the “more difficult question” involved in the case at hand is whether the Plaintiffs experienced such a chilling during the time between the letter announcing the potential for a full investigation and the meeting.[32]

While the court expressed that it was willing to recognize that a student of ordinary firmness may have been chilled during this more difficult timeframe to distinguish, it suggested in order for the Plaintiff to recover damages for such a chilling “it is not enough to establish that a person could have engaged in self-censorship as a result of the University Defendants’ actions.”[33] Here, the Court appeared to find the Defendants’ argument that the Plaintiffs could not articulate a specific intended expression that was chilled as a result of this incident compelling.[34] Further, based on the Plaintiffs’ testimony, this time period appeared to overlap with the Thanksgiving holiday, final exam period, and start of winter vacation, suggesting that no such self-censorship kept them from activities on campus.[35] Thus, in relation to this first issue, the Court held that the University’s inquiry into the complaints under “Student Non-Discrimination and Non-Harassment Policy” did not actually amount to a “cognizable restriction on Plaintiffs’ speech.”

Despite finding for the Defendant on this issue, which defeated the Plaintiffs’ First Amendment claims, the court went on to consider whether any restriction on the Plaintiffs’ free speech survived under the strict scrutiny standard of review. Here, the court recognized that had the University’s procedure lead to actual self-censorship, Plaintiffs would have had to show that the investigation practice under the “Student Non-Discrimination and Non-Harassment Policy” was “necessary to serve a compelling state interest and . . . narrowly drawn to achieve that end.”[36] Since both parties had conceded that upholding a school environment that is free from illegal discrimination and harassment is a compelling end, the only part of the issue left to consider was whether the procedure was narrowly tailored to meet that end.[37] Ultimately, the court found that the investigative process under “Student Non-Discrimination and Non-Harassment Policy” was so tailored.[38]

The court rejected the Plaintiffs’ argument that the University should have screened these discrimination and harassment complaints as frivolous matters because there was allegedly harassing behavior and speech that occurred at the event, which a University cannot dismiss.[39] Furthermore, by contacting Abbott and not resorting to meeting with the complainants or other witnesses first, the court reasoned that the University not only afforded Abbott with greater due process, but also created a standard procedure under its “Student Non-Discrimination and Non-Harassment Policy,” which it could enact with ease and efficiency.[40] Therefore, the court agreed with the district court’s finding that the investigative process adopted by the University represented a “minimally invasive” narrowly tailored to the compelling end of prohibiting discrimination and harassment.

The Court also affirmed the district court’s ruling on the second claim on appeal, rejecting the Plaintiffs’ facial challenge to the “Student Non-Discrimination and Non-Harassment Policy” and request for injunctive relief based on their lack of standing.[41]

Conclusion

Although admittedly an “unusual First Amendment claim,” this case addresses the issue of free speech on college campuses, which as Plaintiffs’ “Free Speech Event” highlighted is a pertinent issue in today’s society.[42] While the Fourth Circuit appeared willing to recognize students’ claims that a chilling or self-censoring of First Amendment protected speech may amount to an actionable harm, it ultimately found that the Plaintiffs failed to establish such a chilling actually occurred in this case. Yet, by focusing much of the opinion on the Plaintiffs’ arguments on this issue and citing to Fourth Circuit precedent on the matter, it leaves open the opportunity to address the “chilling” effect University policies have on free speech again. Thus, despite its ultimate holding for the Defendants in this case, the Fourth Circuit presented some willingness to recognize First Amendment protections against campus policies, perhaps to a different result when not within the peculiarities of a case of this sort.

[1] Abbott v. Pastides, No. 17-1853, 2018 WL 3910682 at *1, *6 (4th Cir. Aug. 16, 2018).

[2] Id.

[3] Id. at *7.

[4] Id. at *7–*8.

[5] Id. at *9.

[6] Id. at *10.

[7] Id.

[8] Id. at *11.

[9] Id.

[10] Id. at *12.

[11] Id. at *12–*13.

[12] Id. at *14.

[13] Id.

[14] Id. at *17.

[15] See Cooksey v. Futrell, 721 F.3d 226, 236 (holding that a state regulatory board chilled plaintiff’s speech by taking actions that would reasonably deter or self-censor an individual from exercising his or her First Amendment rights fully).

[16] Abbott, 2018 WL 3910682, at *21.

[17] Id.

[18] Id. at *22.

[19] Id. at *23.

[20] Id. at *10.

[21] Id. at *16–*17.

[22] Id. at *19.

[23] Id. at *21–*22.

[24] Id. at *23.

[25] Id. at *13.

[26] Id. at *14.

[27] See Reyes v. City of Lynchburg, 300 F.3d 449, 455 (holding that a plaintiff may be entitled to damages under a First Amendment claim for a period, during the past where the plaintiff has alleged his rights were chilled).

[28] Abbott, 2018 WL 3910682, at *15.

[29] Id. (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)).

[30] Id. at *18.

[31] Id. at *17–*18.

[32] Id. at *18.

[33] Id. at *19; see also Reyes, 300 F.3d at 455 n. 8 (holding that because the plaintiff could not show he was deterred from a specific expression, he was not entitled to damages for a First Amendment claim based on a past chilling effect).

[34] Id.

[35] Id.

[36] Id. at *21 (citing Sigma Chi Fraternity v. George Mason University, 993 F.2d 386, 393 (E.D. Va. 2008)).

[37] Id. at *20; see e.g. Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (holding that strict scrutiny applies to content-based speech regulated under the First Amendment).

[38] Id. at *24.

[39] Id. at *22 (citing S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 76–77 (4th Cir. 2016)) (holding that a school may be found liable for a decision to not address student-on-student harassment).

[40] Id. at *24.

[41] Id. at *34.

[42] Id. at *14.

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7Sep

Weekly Roundup: 9/3 – 9/7

Categories: 4th Cir. Blog Weekly Roundup
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By: Lanie Summerlin

Henderson v. Bluefield Hosp. Co.

In this civil appeal, the National Labor Relations Board (“NLRB”) appealed the District Court’s refusal to grant preliminary injunctive relief under section 10(j) of the National Labor Relations Act. The NLRB sought preliminary injunctions against two hospitals until NLRB agency adjudication of a complaint filed against the hospitals by the National Nurses Organization Committee (“Union”) was complete. The injunctions would have required the hospitals to bargain with the Union in good faith, and NLRB argued the injunctions were necessary to protect the nurses’ fundamental right to be represented through collective bargaining. The District Court denied these injunctions because it ruled the NLRB failed to prove this type of relief was necessary to preserve the remedial power of the NLRB. The Fourth Circuit affirmed the District Court’s decision and emphasized that the NLRB has the burden of proving irreparable harm absent the injunction. Ultimately, the Fourth Circuit held the NLRB failed to meet this burden because its theories of harm were speculative; the NLRB failed to explain why its own forms of relief available after completion of the agency process would be insufficient.

U.S. v. Bell

In this criminal appeal, Quintin Bell (“Bell”) challenged his convictions of four counts of drug trafficking and one count of illegal possession of a firearm. Bell argued the District Court erred in (1) denying his motion to suppress statements he made to police officers who were executing a search warrant on his residence; (2) admitting evidence of another arrest of Bell under Federal Rules of Evidence Rule 404(b); (3) denying Bell’s motion to disclose the identity of a confidential informant; and (4) enhancing Bell’s sentence to 480 months’ imprisonment due to his prior convictions. The Fourth Circuit held the District Court did not err in denying Bell’s motion to suppress his statements because Bell was not being interrogated at the time the statements were made; the officer’s question was directed to Bell’s wife and Bell voluntarily answered. The Fourth Circuit also held the District Court did not abuse its discretion by admitting evidence of Bell’s other arrest because this evidence’s relevance to Bell’s motive and intent was not substantially outweighed by the risk of unfair prejudice to Bell. In regards to the confidential informant, the Fourth Circuit held the District Court did not err in refusing to disclose the informant’s identity because Bell failed to prove the informant’s identity was necessary to establish his own guilt or innocence. The Fourth Circuit also reviewed Bell’s criminal record and held that his 480 month sentence was appropriate due to the nature of the crimes on his record. Overall, the Fourth Circuit affirmed Bell’s convictions. Judge Wynn dissented; he argued the Fourth Circuit should have remanded the issue of Bell’s statements to police officers to the District Court for a determination of whether Bell perceived himself as being interrogated. Judge Wynn also argued that Bell’s prior convictions do not qualify as predicate convictions to enhance his sentence.

VanDevender v. Blue Ridge of Raleigh

This civil appeal focuses on the District Court’s decisions as to two judgment as a matter of law (“JMOL”) motions filed by Blue Ridge of Raleigh (“Blue Ridge”). Blue Ridge operated a long-term skilled nursing facility in Raleigh, North Carolina, but consistently failed to meet state-mandated staffing levels and supplies requirements. The estates of three deceased ventilator-dependent patients at Blue Ridge brought claims of wrongful death nursing home malpractice against Blue Ridge. The jury awarded compensative and punitive damages to each Plaintiff. However, the District Court granted Blue Ridge’s motion for JMOL as to all three Plaintiffs’ punitive damages awards because it ruled the Plaintiffs had not produced sufficient evidence. The District Court denied Blue Ridge’s motion for JMOL as to Plaintiff Jones’s compensatory damages. Plaintiffs appealed the JMOL as to their punitive damages, and Blue Ridge cross-appealed the denial of JMOL as to Plaintiff Jones’s compensatory damages. The Fourth Circuit held the District Court erred in granting JMOL as to the Plaintiffs’ punitive damages. Based on the record, the Fourth Circuit held that a jury could determine Blue Ridge’s staffing policies and managerial decisions constituted willful or wanton conduct. It held that the District Court erred by requiring the Plaintiffs to prove malice, which is not required for willful or wanton conduct. The Fourth Circuit emphasized that Blue Ridge failed to follow state and federal laws on staffing and intentionally failed to follow its own patient safety policies. Additionally, the Fourth Circuit affirmed the District Court’s denial of Blue Ridge’s JMOL motion as to Plaintiff Jones’s compensatory damages. There was sufficient evidence that Blue Ridge breached the standard of care it owed to Plaintiff Jones by being understaffed without proper supplies. The Fourth Circuit remanded with instructions for the District Court to enter punitive damages for all three Plaintiffs consistent with North Carolina’s statutory limits.

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4Sep

Judges of the Fourth Circuit – Hon. John D. Butzner, Jr.

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By Ryan Meier

Judge John D. Butzner, Jr. was born on October 2, 1917 in Scranton, PA.[1] His interest in law and justice began at an early age, as he frequently visited his attorney uncle Billy Butzner who practiced at Butzner & Hicks in Fredericksburg, VA. After graduating magna cum laude from the University of Scranton in 1939, Judge Butzner attended the University of Virginia School of Law where he served on the board of editors for the school’s Law Review publication.[2]

Shortly after graduating with an LL.B. degree in 1941, Judge Butzner returned to Fredericksburg to practice with his uncle at Butzner & Hicks.[3] Despite his budding legal career in Virginia, Judge Butzner practiced for only a year before enlisting in the United States Air Force to aid the effort in World War II. He served as a staff sergeant for the Weather Service in Alaska until 1945 before returning to private practice in Fredericksburg.[4] While practicing, Butzner litigated in a variety of areas including contract law, criminal law, and civil rights cases in addition to serving as a city attorney for six years.[5]

In 1958, Butzner began his judicial career when he was sworn in as an associate judge of the new 15th Judicial Circuit of Virginia where he would serve for two years.[6] Judge Butzner officially became a Virginia Circuit Court judge for the 39th judicial Circuit in 1960. Two years after his appointment as a state court judge, on May 15, 1962, President John F. Kennedy nominated Judge Butzner for a vacant seat as a federal judge in the Eastern District of Virginia.[7] His appointment was confirmed by the Senate a month later on June 15, 1962.[8]

On June 27, 1967 President Lyndon B. Johnson nominated Judge Butzner to fill a seat vacated by J. Spencer Bell in the Fourth Circuit.[9] Judge Butzner was confirmed and received commission by the Senate nearly a month later on July 31, 1967.[10] Over his 33-year tenure on the Fourth Circuit, Judge Butzner would rule on a number of cases involving civil rights and racial justice—including class actions against some of the largest corporations such as Phillip Morris.[11] In 1976, the Virginia Trial Lawyers Association would honor him with the Distinguished Service Award.[12]

However, despite his judicial record as a civil rights advocate, his most notable contributions came after Chief Justice William H. Rehnquist appointed him to a special panel to appoint independent counsels to investigate alleged wrongdoing by members of the executive branch. Judge Butzner would cast a dissenting vote on a three-person panel in two high-profile decisions—the reversal of fraud and racketeering convictions against Maryland Governor Marvin Mandel and the appointment of Ken Starr as the independent prosecutor investigating President Clinton’s involvement with the Whitewater controversy.[13] Though no official record exists regarding Judge Butzner’s selection to investigate the Clintons, he is quoted as saying, “I was against Starr, start to finish.”[14]

Judge Butzner would assume senior status on November 1, 1982 and work in that capacity until his retirement in 2000. He died six years later due to illness.[15] Judge J. Harvie Wilkinson III, a colleague on the 4th Circuit bench, recalls Butzner as “A perfect example of what a judge ought to be. He combined integrity, courtesy, fairness and intelligence.”[16] After nearly 40 years of judicial service, Judge Butzner’s dedication to justice lives on in his work.

[1] Federal Judicial Center, John Decker Butzner, Jr., https://www.fjc.gov/node/1378651 (last visited Sept. 4, 2018).

[2] Wil Bowler, John Decker Butzner, Jr., Find a Grave (Sept. 12, 2006), https://www.findagrave.com/memorial/15714709/john-decker-butzner.

[3] Federal Judicial Center, supra note 1.

[4] Bowler, supra note 2.

[5] Id.

[6] Federal Judicial Center, supra note 1.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Quarles v. Phillip Morris, Inc., 279 F. Supp. 505 (4th Cir. 1968).

[12] Bowler, supra note 2.

[13] See United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979); Toni Locy, Judges’ Politics Examined in Appointment of Starr to Direct Probe, Wash. Post (Aug. 7, 1994), https://www.washingtonpost.com/archive/politics/1994/08/07/judges-politics-examined-in-appointment-of-starr-to-direct-probe/89aa6333-f4f1-4564-861e-907a1ecd9040/?utm_term=.7a1dd76c1a9b.

[14] Janet Maslin, Damages: Bill Clinton’s Legal Mess, N.Y. Times (Feb. 14, 2010), https://www.nytimes.com/2010/02/15/books/15book.html.

[15] Bowler, supra note 2.

[16] Id.

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4Apr

Fourth Circuit Predicts Delaware Would Allow Reverse Piercing the Corporate Veil

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By: Raquel Macgregor

On March 28, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for Coley v. DIRECTV. The court affirmed the district court’s[1] decision to grant a motion to “reverse pierce” the corporate veil of Mr. Coley’s three limited liability companies (“LLCs”).

I. Issue

Does Delaware law allow reverse piercing the corporate veil of an LLC when the sole member of an LLC is its alter ego?

II. Facts and Procedural history

Previously, the district court entered a judgment for DIRECTV for $2.3 million after Mr. Coley fraudulently provided DIRECTV services to over 2,500 units in his resort. Mr. Coley had in fact only been licensed to provide the service to 168 units. In addition to running a resort, Mr. Coley was also the sole manager of three LLCs that were created to hold title to various rental properties.

After DIRECTV was unable to collect its judgment against Mr. Coley due to his few personal assets, DIRECTV filed a motion to reverse pierce the corporate veil of the three LLCs to gain access to their assets. The district court granted the reverse piercing motion, and Mr. Coley appealed to the Fourth Circuit.

III. Piercing the corporate veil and applicable law

Generally, an LLC shields its members from personal liability because an LLC has a separate identity, and “those debts are not imputed to the [members].” Yet, courts disregard the legal separation between an LLC and its members when such a separation would “produce injustices or inequitable consequences.” Thus, at times a court will allow a plaintiff to “pierce the corporate veil” that divides a shareholder and an entity (or here reverse pierce) [2] so a plaintiff can collect from an otherwise judgment-proof defendant.

With corporate law issues, courts apply the law of the state of incorporation. Here, the LLCs’ state of incorporation was Delaware, so the court applied Delaware law to determine the validity of the reverse veil piercing. However, Delaware has not yet expressly adopted the remedy of reverse piercing the corporate veil. Thus, the court then had to predict whether Delaware would recognize this remedy.

IV. Determining whether Delaware would recognize the remedy of reverse veil piercing

The court first acknowledged that past Delaware cases strongly indicate that Delaware would allow the remedy of reverse piercing. Under Delaware law, where an LLC has a single member, “the rationale supporting reverse veil piercing is especially strong.” The court observed that Delaware law does not allow an individual to use “a corporate form . . . as a ‘shield’ to hinder creditors from collecting on adjudicated claims.” Moreover, while Delaware has never had a reverse veil-piercing case, in Spring Real Estate, LLC v. Echo/RT Holdings, LLC, the Delaware Court of Chancery noted that when an LLC is a “mere alter ego . . . the Court may engage in ‘reverse veil-piercing.”

The court then considered how a potentially contradictory Delaware charging statute might conflict with the remedy of reverse veil-piercing. The language of the charging statute mandates that a charging order is the “exclusive remedy.” Yet, the court relied on the canon of construction of ejusdem generis and the concern that courts could not “look through these legal fictions” to conclude that the charging statute did not prevent the court from reverse piercing the corporate veil.

V. Conclusion

After concluding that reverse veil piercing would be permitted in Delaware, the court agreed with the district court that reverse piercing was an appropriate remedy in this case. The court noted several veil piercing factors were present, namely: (1) the LLCs were controlled by a sole individual (Mr. Coley); (2) Mr. Coley failed to observe corporate formalities and maintain proper accounting records; and (3) Mr. Coley engaged in significant commingling of assets between the LLCs and his personal finances. Thus, the Fourth Fircuit affirmed the district court’s decision to reverse pierce the veil of Mr. Coley’s LLCs.

[1] The appeal arose specifically from the United States District Court for the Western District of Virginia.

[2] “Piercing the corporate veil” refers to when an individual owner or parent entity is held liable for a judgment against a business entity. In contrast, “reverse piercing the corporate veil” creates “liability to the entity for a judgment against the individuals who hold an ownership interest in that entity.”

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21Mar

Fourth Circuit Limits Qualified Immunity in Sexually Intrusive Searches

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By: Hailey Cleek & Mike Garrigan

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that seventeen-year-old Trey Sims used his cell phone to send sexually explicit photographs and video recordings of himself to his fifteen-year-old girlfriend.[1] Detective Abbott obtained a search warrant authorizing photography of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. Detective Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate.

Suspect Sims brought a 42 U.S.C. § 1983 action[2] against the administrator of Detective Abbott’s estate, alleging that this search violated his Fourth Amendment right of privacy and that, as result of search, he was victim of manufactured child pornography. Traditionally, public officials are granted either absolute or qualified immunity from lawsuits when performing their official duties.[3] Qualified immunity is generally extended to police officers or other officials. Yet, actions taken by these officials with a “deliberate indifference” may impose liability.[4] The district court determined that the administrator was entitled to qualified immunity on the § 1983 claims. The Fourth Circuit heard arguments on whether a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment.

Plaintiff’s Arguments

Plaintiff argued that while the Fourth Amendment does at times protect sexually invasive searches, Detective Abbott clearly violated personal privacy rights. In examining sexually invasive searches under the Fourth Amendment, courts balance “the invasion of personal rights caused by the search against the need for that particular search.”[5] Factors to determine this balance are: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was performed.[6] Courts have described such sexually invasive searches, including strip searches, as humiliating and demeaning.[7] In  King v. Rubenstein,[8] the Fourth Circuit previously held that sexually invasive searches relate to deep “interest[s] of bodily integrity,” which “involves the most personal and deep-rooted expectations of privacy.”[9]

Using these factors, Plaintiff-Appellant Sims illustrated the severe Fourth Amendment violations by Detective Abbott. Although Detective Abbott sought to obtain photographs of Sims’ erect penis for an evidentiary purpose, the Commonwealth ultimately agreed not to use the photographs of Sims’ body as evidence.[10] There was no need to take these photographs. Instead, Detective Abbot executed the search warrant by ordering teenager Sims to masturbate to obtain an erection in the presence of three armed officers.[11] Such alleged conduct would necessarily invade Sims’ bodily integrity, regardless if Sims’ body was not penetrated or physically harmed.[12] Plaintiff was humiliated throughout the reckless disregard of his bodily privacy; he deferred applying for college, despite his outstanding academic and extracurricular records.[13] Throughout the investigation and prosecution, he was mortified to face his peers.[14]

Plaintiff strongly asserted that Detective Abbott was not entitled to qualified immunity. Qualified immunity only protects public officials from constitutional violations when resulting from “reasonable mistakes.”[15] It does not protect “the plainly incompetent or those who knowingly violate the law.”[16] A Virginia police detective is properly charged with knowledge of laws criminalizing the creation of child pornography.[17] There is no exception for police officers. While there were fortunately no other related cases on point to illustrate a lack of exception, the Fourth Circuit has previously held that some facts of abuse are so clear that they do not require case law justification.[18] Beyond a passive excuse of following orders, Detective Abbott had no reason to believe that this search was reasonable. Yet, even with a warrant, Detective Abbott was not bound to seek or execute a plainly unconstitutional warrant.[19] The request of a prosecutor for a search is not nullifying to the responsibility to act reasonably. An officer cannot receive the protections of qualified immunity when asking a teenager to masturbate in front of three armed guards.

Defense’s Arguments

Labowitz asserted that Sims failed to state enough facts to support a Fourth Amendment violation.[20] Here, Labowitz argued that Abbott’s search neither placed Sims at risk of bodily harm nor physically invaded Sims’ body,[21] and therefore fell outside of Fourth Amendment protection. The defense used four arguments to assert that this search fell outside of Fourth Amendment protection. First, Labowitz cited several cases where valid search warrants were issued in similar circumstances–namely involving identifying scars, moles, and/or tattoos on a suspect’s genitalia.[22] Second, Labowitz observed that Abbott took no action that aimed to bring about an erection by Sims.[23] Third, Labowitz cited multiple cases that validate warrantless custodial strip searches of juveniles.[24] Finally, Labowitz argued that a photograph is not invasive, but even if it were, case law supports warrantless searches of a defendant’s physical person in certain circumstances.[25]

Labowtiz also argued that the district court properly recognized Abbott’s immunity. Qualified immunity protects government officials from civil liability as long as their conduct does not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[26] Here, the key question was whether Abbott “acted as an objectively reasonable police officer would have acted under similar circumstances.”[27]  Labowitz offered three reasons why Abbott behaved as a reasonable police officer.[28] First, a reasonable officer would rely on a warrant an attorney directed him to seek. Second, a reasonable officer would conclude that strip search conducted at a detention center under a warrant is appropriate. Third, no reasonable officer would have thought that he was producing child pornography when acting under a search warrant.

Sexually Intrusive Search Jurisprudence Addresses Questions for Immunity

While the majority for the Fourth Circuit strongly condemned Detective Abbott’s actions and held that such alleged conduct necessarily invaded Sims’ bodily integrity and privacy rights,[29] Judge King, in a dissenting opinion, notes that the case raises distinct questions for qualified immunity.[30] He notes that Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order.[31] It is a foundational rule to the legal system and independent judiciary that court orders should be respected, complied with, and obeyed among law enforcement officers.[32] Court orders ensure compliance with the rule of law in society, and public officials are bound by both the cultural and institutional weight afforded to judge’s decisions.[33] When a judicial officer, Judge King suggests, has issued a search warrant upon probable cause, it is “unreasonable to require the officer charged with executing the warrant to reject the judicial decision and disobey the court’s directive.”[34] Generally, citizens want officers to comply and follow court orders in respect for the rule of law

Although the rule of law encourages officers to comply with and follow warrants accordingly, an entire body of sexual search jurisprudence has emerged to establish limits on sexually invasive searches. In Illinois v. Lafayette,[35] the Supreme Court held that an officer cannot disrobe an arrestee publicly without justifying factors. In United States v. Edwards,[36] the Fourth Circuit held that an officer’s sexually invasive search was unlawful because the dangerous manner in which he removed the contraband outweighed the interest in retrieving contraband. Likewise, in Amaechi v. West,[37] the Fourth Circuit found no justification for an officer’s pat-down search to include touching arrestee’s buttocks and penetrating her exposed genitalia. While these cases involved warrantless searches, they highlight the plainly unreasonable nature of the present case, as sexually invasive searches generally only happen in exigent circumstances.[38] Officers are encouraged to follow the boundaries of the search warrant, yet citizens cannot be expected to tolerate an officer acting beyond the guided parameters of sexual search warrants. Here, the warrant did not authorize Abbott’s conduct of requiring Sims to masturbate in the presence of the officers.[39] There was neither an evidentiary justification nor valid reason to demand Sims to masturbate in the presence of others.[40]

Conclusion

A little over a month after the Fourth Circuit heard Sims v. Labowitz, the Children’s Justice Fund (“CJF”), a nonprofit organization dedicated to aiding victims of child sex abuse, filed an amicus brief in support of a rehearing.[41] CJF argued that the Fourth Circuit panel erred by defining “sexually explicit conduct” in a way that could have “potentially profound implications for this case and future plaintiff victims.”[42] The Court, CJF argued, eschewed four objective terms for a subjective term. “Sexual intercourse,” “bestiality,” “masturbation,” and “sadistic or masochistic abuse” are more or less objective while “lascivious exhibition of the genitals or pubic area” relies on subjective “Dost factors.”[43] CJF contended that masturbation is per se explicit conduct under 18 U.S.C. § 2256(2)(A) and bringing Dost factors into the analysis was “unnecessary and unwarranted.”[44]

On March 14, 2018, the Fourth Circuit granted the motion for rehearing. While the rehearing will likely only correct the definitional scope of “sexually explicit conduct,” Sims reinforces the limits of police immunity. Moving forward, public officials in Maryland, South Carolina, North Carolina, West Virginia, and Virginia are officially on notice that such unreasonable sexual search conduct is not permissible. In line with previous sexual search jurisprudence, the Fourth Circuit has reaffirmed the bodily integrity of individuals.

 

 

 

[1] Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017).

[2] This refers to lawsuits brought under Section 1983 of Title 42 of the United States Code. See 42 U.S.C. § 1983. Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations.

[3] Janell M. Byrd, Rejecting Absolute Immunity for Federal Officials, 71 Cal. L. Rev. 1707, 1713 (1983).

[4] See Farmer v. Brennan, 511 U.S. 825, 843 (1994).

[5] Bell v. Wolfish, 441 U.S. 520, 559 (1979).

[6] Id.

[7] See, e.g., Mary Beth v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).

[8] 825 F.3d 206 (4th Cir. 2016).

[9] Id. at 215.

[10] Brief for Appellant at 10–11, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[11] Id. at 8.

[12] Id. at 38 (“Manifestly, this amounts to ‘state intrusion[] into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.’”)(quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)).

[13] Id. at 12.

[14] Id.

[15] Saucier v. Katz, 533 U.S. 194, 206 (2001).

[16] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[17] Brief for Appellant at 36, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[18] Clem v. Corbeau, 284 F.3d 543, 553 (4th Cir. 2002) (“[W]hen the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance . . .  closely analogous pre-existing case law is not required to show the law is clearly established.”).

[19] See Graham v. Gagnon, 831 F.3d 176, 183 (4th Cir. 2016)(“I]f no officer of reasonable competence would have requested the warrant… [t]he officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.”).

[20] Sims v. Labowitz, 877 F.3d 171, 177 (4th Cir. 2017).

[21] Id.

[22] Response Brief for Appellee at 10, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[23] Id. at 11.

[24] Id. at 12.

[25] Id. at 13.

[26] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[27] Defendant Estate of David Abbott’s Memoradum in Support of Motion to Dismiss Second Amended Complaint at 17, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[28] Response Brief for Appellee at 30, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[29] Sims v. Labowitz, 877 F.3d 171, 178 (4th Cir. 2017).

[30] Id. at 183 (J. King, dissenting).

[31] Id.

[32] Id.

[33] See Stephen G. Breyer, Judicial Independence in the United States, 40 St. Louis U. L.J. 989, 994-96 (1996)

[34] Sims v. Labowitz, 877 F.3d 171, 184 (4th Cir. 2017) (J. King, dissenting).

[35] 462 U.S. 640 (1983).

[36] 666 F.3d 877 (4th Cir. 2011).

[37] 237 F.3d 356 (4th Cir. 2001).

[38] Sims v. Labowitz, 877 F.3d 171, 182 (4th Cir. 2017).

[39] Id. at 182, n. 3.

[40] Id. at 180.

[41] Under Federal Rule of Appellate Procedure 27(b)(2), “[t]he United States or its officer or agency or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.”

[42] Amicus Brief of the Children’s Justice Fund and Child USA in Support of the Plaintiff-Appellant Trey Sims at *4, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[43] Id. at *3.

[44] Id. at *8.

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14Mar

4th Amendment Rights: The Reasonableness of Prolonged Traffic Stops

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By: Matthew Welch & Gilbert Smolenski

On March 1, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for United States v. Brian Bowman.  The court held that Bowman’s Fourth Amendment right, freedom from unreasonable seizures, was violated and reversed the district court ruling.

I. Facts and Procedural History

In the predawn hours the morning of June 20, 2015, Officer Waycaster was patrolling on Route 25 in Henderson County, North Carolina.  He received a tip from the DEA that two individuals driving a red, older model Lexus could be narcotics runners.  The DEA also provided a license plate number for the car.  At 3:40 a.m., Officer Waycaster spotted an older red Lexus.  Rather than stopping the vehicle based on information from the DEA, Officer Waycaster followed the car “looking for [his] own infractions . . . for [his own] reason to stop the vehicle.”  When the vehicle weaved over a fog line and accelerated to 10 mph over the speed limit, Officer Waycaster pulled the vehicle over, suspecting that the driver may have been under the influence.  The government agrees that the DEA tip should not be considered in any legal analysis.

After stopping the vehicle, Officer Waycaster noticed two men in the vehicle: Bowman, the driver, and Alvarez, the passenger.  Officer Waycaster testified that Bowman appeared nervous because his hands were shaking, he failed to make eye contact with Waycaster, and that his carotid artery was moving, indicating an elevated heart rate.  Officer Waycaster did not see any alcohol or firearms in the vehicle, but he did notice an energy drink in the center console, food wrappers, and a suitcase in the back seat.  Officer Waycaster explained why Bowman was stopped and then asked Bowman to exit the vehicle and go to the patrol car so that Officer Waycaster could check his information.  Alvarez remained in the passenger seat the entire time.

After Bowman exited the vehicle, he consented to a weapons frisk.  Officer Waycaster found no weapons.  Officer Waycaster then told Bowman to sit in the patrol car while Waycaster ran his driver’s license and registration.  While Officer Waycaster was running Bowman’s information, he asked Bowman where he was coming from.  Bowman said that he was heading home after picking up Alvarez from Alvarez’s girlfriend’s house.  He said he was returning the favor because Alvarez had done the same for him in the past. When questioned about the address of Alvarez’s girlfriend’s house, Bowman said he did not know it but that it was in his car’s GPS.  Officer Waycaster also asked Bowman what he did for a living.  Bowman replied, saying that he was a welder but was currently unemployed.  Bowman also said that he recently bought the Lexus off Craigslist.  Officer Bowman testified that this was a suspicious activity because “it was a known practice with narcotics traffickers to either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport narcotics.”  Officer Waycaster, believing that Bowman was not under the influence, then issued Bowman a ticket for speeding and unsafe movement of the vehicle.

Bowman then began to exit the vehicle but Officer Waycaster asked if he could speak further with Bowman.  Bowman consented.  After another round of questions about what Bowman and Alvarez had been doing that night, Officer Waycaster, who was seated in the patrol car with Bowman said that he “was going to ask [Alvarez] questions if you don’t mind, okay?”  Bowman responded, “okay,” and remained in the vehicle.  As Officer Waycaster exited the patrol car he told Bowman, “just hang tight right there, okay.”  Bowman responded with, “oh, okay.”  Office Waycaster testified that at this point, Bowman was not free to get out of the patrol car because Waycaster had developed, from the traffic stop alone, reasonable suspicion of criminal activity.

Office Waycaster then went back to the Lexus and interviewed Alvarez about what had transpired before the two men were pulled over.  Alvarez’s story conflicted with Bowman’s.  Officer Waycaster then return to the patrol car and asked Bowman if there was meth in the Lexus, to which Bowman responded no.  Bowman then refused to let Officer Waycaster search the Lexus.  Thereafter, Officer Waycaster removed Alvarez from the Lexus and placed him in the patrol car with Bowman.  Then Office Waycaster summoned a K-9 team.  The K-9 team passed around the outside of the Lexus.  The dog alerted an officer that illegal narcotics were present in the vehicle.  Thereafter, Office Waycaster and the K-9 handler searched the interior of the car.  They found meth, digital scales, and containers of ammunition.

Bowman was charged with possession with intent to distribute methamphetamine.  Bowman filed a motion to suppress the methamphetamine evidence, arguing that Officer Waycaster unlawfully prolonged the completed traffic stop without consent or reasonable suspicion.  The district court followed the recommendation of the magistrate judge in denying the motion to suppress.  The magistrate judge admitted that Bowman was not free to leave the patrol car but that the prolonged detention was permissible because “Waycaster had a justified, reasonable suspicion that Defendant Bowman was engaged in criminal activity.” The judge said that the totality of the circumstances supported this finding.  Bowman then filed an appeal.

II. Standard of Review

The Fourth Circuit reviews the district court’s determination that the officer had a reasonable suspicion to prolong the traffic stop de novo.

III. Reasoning

First, a traffic stop must be reasonable.  Here, Bowman does not challenge the reasonableness of the traffic stop.  Bowman was swerving and traveling 10 mph over the speed limit.  Instead Bowman’s Fourth Amendment challenge rests on the unreasonableness of his prolonged detention in the patrol car. The Fourth Amendment allows an officer to conduct an investigation unrelated to the reasons for the traffic stop as long as it does not lengthen the roadside detention.  To extend the length of the detention beyond the time necessary to accomplish the traffic stop’s purpose, an officer must have reasonable suspicion or receive the driver’s consent.  Here, the officer did not receive Bowman’s consent or have a reasonable suspicion.

The government argued that Bowman consented to the prolonged detention when he said “okay” after Officer Waycaster asked him to “hang tight right there, ok?”  However, under a reasonable person standard, the court said that this was not consent by Bowman.  Bowman never had time to respond to Officer Waycaster before Waycaster exited the vehicle and many would feel they were not free to leave in a similar situation. Furthermore, Waycaster was not asking a question, instead he was instructing Bowman what to do.  Thus, when Bowman remained in the patrol car as the officer went to question Alvarez, the encounter was no longer a consensual one but instead became a non-consensual seizure.

After the Fourth Circuit concluded the search constituted a non-consensual seizure, the Court then analyzed whether Waycaster’s “prolonged seizure was justified by reasonable suspicion.”  The Court noted there is no precise definition for what constitutes reasonable suspicion.  Instead, reasonable suspicion is a commonsense, nontechnical standard that considers the realities of everyday life.  The bar for reasonable suspicion is less than the probable cause standard and the facts articulated by the stopping officer and trial court must be taken in their totality.  However, each factor can be analyzed separately by the court before being taken together in a full consideration of the circumstances surrounding the traffic stop.

The Fourth Circuit focuses on four specific factors in its analysis.  First, Waycaster noted that both Bowman and Alvarez appeared to be nervous.  However, a driver’s nervousness is not a good indicator since most citizens are nervous when dealing with police.  The record indicated that Bowman and Alvarez did not exhibit any signs of nervousness above the norm, and the government conceded Bowman was calm once exiting the vehicle.  Moreover, although a suspect’s increased heart rate, which can be evidenced by a suspect’s throbbing carotid artery, can help support there was a reasonable suspicion of criminal activity, the present facts do not show Bowman demonstrated nervousness beyond the norm. The fact that Bowman remained calm in the patrol car and failed to make eye contact with an officer is not indicative of criminal behavior.  Thus, the first factor weighed in favor of the Bowman.

Second, Waycaster stated that several articles in the car, specifically clothes, food, and an energy drink, helped give rise to a reasonable suspicion.  However, these items are consistent with innocent travel and “in the absence of contradictory information,” cannot reasonably imply criminal activity.  While Bowman may have made false statements about his travel plans, the government failed to connect that fact to any wrongdoing in the case.  Therefore, just the articles alone cannot be used to established untruthfulness, and subsequently reasonable suspicion.

Third, the district court noted that Bowman’s inability to recall Alvarez’s girlfriend’s address contributed to Waycaster’s reasonable suspicion.  But, the Fourth Circuit stated this was entirely reasonable, as it is clear from the video recording that Bowman repeatedly said he used the car’s GPS to find the house, and Waycaster could find the address by looking at the car’s GPS history.  The government failed to connect Bowman’s response with criminal activity, and the Fourth Circuit stated it is reasonable that Bowman did not know the address and was relying on GPS in a dark, unfamiliar area.

Finally, Waycaster believed Bowman’s vehicle purchases gave suspicion of criminal activity since he thought it was strange Bowman could afford to purchase multiple vehicles while unemployed and the use of multiple cars was a known practice of drug traffickers.  The Fourth Circuit readily disposed of Bowman’s vehicle purchasing habits, noting that Waycaster made “unsubstantiated assumptions.”  Even though Bowman was unemployed, there are numerous possible explanations to explain the car purchases that are all within the confines of the law.  Likewise, innocent travelers may use multiple vehicles, some of which they could buy from Craigslist, and that fact is entitled to little weight.

Consequently, none of the factors alone provide a basis for reasonable suspicion.  Even when looking at the totality of the circumstances, as mandated by precedent, the Fourth Circuit similarly found that the “combination of wholly innocent factors” did not give rise to reasonable suspicion.  Therefore, the Fourth Circuit reversed the district court, as Bowman’s motion to suppress should have been granted.

 

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21Nov

Fourth Circuit Grants Hearing On New Presidential Proclamation Limiting Immigration

Categories: 4th Cir. Blog Issues in the 4th Circuit
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By Hailey Cleek & Raquel Macgregor

On November 6th, the Fourth Circuit granted a hearing en banc to review President Trump’s third Executive Order iteration on immigration. The new Presidential Proclamation (“Proclamation”), like its predecessors, restricts immigration from several Muslim-majority countries. The case was appealed to the Fourth Circuit after the District Court of Maryland granted in part a preliminary injunction blocking the new Proclamation.[1] Given the past Fourth Circuit and Supreme Court rulings blocking President Trump’s first two Executive Orders, the Fourth Circuit is likely to affirm the injunction in part.

The Fourth Circuit Struck Down the Previous Executive Order

In March of 2017, the Fourth Circuit largely upheld the Maryland District Court’s ruling blocking implementation of an Executive Order signed by President Donald Trump.[2] In the Executive Order, the Trump Administration had temporarily suspended new visas for travelers from six Muslim-majority countries for ninety days and the admission of new refugees into the United States for 120 days.[3] The Fourth Circuit held that the Executive Order violated the Establishment Clause because it was motivated by a discriminatory animus toward Muslims.[4] The Supreme Court then granted certiorari and partially stayed the injunction. Furthermore, because the Fourth Circuit Order had expired by “its own terms” on September 24, 2017, the Supreme Court vacated the judgment, as the appeal no longer presented a “live case or controversy.”[5]

The New Presidential Proclamation

On September 27, 2017, President Trump issued a new Presidential Proclamation. This Proclamation keeps restrictions on five of the six original countries (Iran, Libya, Somalia, Syria, and Yemen), lifts restrictions on visitors from the Sudan, and adds new restrictions on visitors and immigrants from Chad, North Korea, and Venezuela.[6] In both previous executive orders, all banned countries were majority Muslim. However, the Proclamation now includes two non-majority Muslim countries: North Korea and Venezuela.[7]

The new restrictions vary by country. Immigrants and nonimmigrants from Chad, Libya, and Yemen are barred from entry into the United States, on business, tourism, or through business-tourist visas.[8] Likewise, Iranian citizens are barred from entry with an exception for students, provided that they receive extra screening.[9] The Proclamation also bars immigrants and nonimmigrants from North Korea and Syria as well as immigration by citizens of Somalia.[10] Yet, the restrictions placed on Venezuela only impacts Venezuelan government officials and their families.[11]

Despite the changes to the immigration order, the Maryland District Court enjoined Section 2 of the Proclamation. In order to obtain a preliminary injunction, plaintiffs must show that: “(1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tip in their favor, and (4) the injunction is in the public interest.”[12] The district court ultimately found that Plaintiffs were likely to succeed on their Establishment Clause claim and that the Proclamation likely violates §1152(a) of the Immigration and Nationality Act (“INA”) which prohibits discrimination based on nationality in issuing immigrant visas. Yet, the court found that the balance of equities only allowed enjoining the Proclamation on behalf of “individuals ‘who have a credible claim of a bona fide relationship with a person or entity in the United States.’”[13] Thus, the injunction bars the Proclamation’s impact on individuals with immediate family members in the United States. Moreover, the injunction does not apply to individuals traveling from Venezuela or North Korea as Plaintiffs have not demonstrated how individuals from those countries with a bona fide relationship with the United States will be harmed.

Arguments for Upholding the Presidential Proclamation

In the appellant’s opening brief, the government argues that the district court abused its discretion in granting a preliminary injunction because the President’s actions are not subject to judicial review and the elements required to grant a preliminary injunction are not satisfied. Regarding justiciability, the government contends that a denial of a visa is not subject to judicial review.[14] Yet, this argument blatantly ignores that the Supreme Court allowed judicial review of the past two executive orders.[15]

However, the government focuses its brief on its likelihood of success on the merits under both the plaintiff’s statutory and constitutional claims. First, the government argues that the Proclamation is consistent with the INA because the President has broad discretion to suspend entry of aliens whenever they “would be detrimental to the interests of the United States” under 8 U.S.C. §1182(f).[16] The government contends that 8 U.S.C. §1152(a)(1)(A), which prohibits discrimination of nationality in the issuance of immigrant visas, does not in fact conflict with the President’s broad discretion.[17] Instead, the government dubiously claims that the prohibition against nationality discrimination only applies after the President has full discretion to “limit the universe of individuals eligible to receive visas,”[18] which would effectively render §1152(a)(1)(A) meaningless.

The largest hurdle President Trump will face is convincing the court that the purpose of this Proclamation differs from his previous executive orders. In response to plaintiff’s establishment claim, the government claims that because the ban no longer targets only Muslim-majority countries (given the addition of North Korea and Venezuela), the purpose behind the Proclamation is to protect the United States from terrorism. The Proclamation asserts that it has singled out Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia after a “global review” by the Department of Homeland Security (“DHS”) and Department of State which identified these countries as having “inadequate practices or otherwise present heightened risks.”[19] Thus, by relying on the DHS review, the Proclamation has distinguished itself from previous travel limitation executive orders. Yet, this argument will likely face significant criticism given that the Proclamation included Somalia, a majority Muslim country, in its list of restricted countries even though the DHS report deemed the country to have adequate information-sharing practices.[20]

Arguments against the Presidential Proclamation

Plaintiffs assert that the Proclamation violates various provisions of the INA.[21] Primarily, plaintiffs argue that the Proclamation violates § 1152(a) of the INA,[22] which bars discrimination on the basis of nationality in the issuance of immigrant visas. Specifically, §1152(a) provides that, with certain exceptions: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence[.]”[23] The Maryland District Court already considered the “interplay” between § 1182(f) and § 1152(a) and concluded that the President’s authority under § 1182(f) is limited by the § 1152(a) bar on discrimination based on nationality in the issuance of immigrant visas.[24] While the government could argue that the suspension of entry is not analogous to the issuance of visas, Judge Thacker of the 4th Circuit has already suggested that this argument will not be successful.[25] Here, unlike previous travel limitations used by both Presidents Reagan and Carter, the Proclamation has no end date and no requirement of renewal.[26] This creates a permanent ban on immigration from the Designated Countries, thus stopping the issuance of immigrant visas indefinitely. Thus, the bar on entry is equivalent to a ban on issuing immigrant visas based on nationality. Moreover, the Ninth Circuit found that the executive order violated the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas.[27] Consequently, plaintiffs are likely to succeed on their claim that the Proclamation violates § 1152(a) non-discrimination.

Plaintiffs argue that the Proclamation violates the Establishment Clause. Citing Larson v. Valente, the plaintiffs contend that the “primary effect” of the Proclamation “burden[s] . . . [a] selected religious denomination” through its immigration restrictions which overwhelmingly impact Muslims.[28] Moreover, under the Lemon v. Kurtzman[29] framework, to withstand an Establishment Clause challenge: (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster ‘an excessive government entanglement with religion.’”[30] Challengers argue that this new Proclamation, similar to the last two executive orders, is primarily motivated by religious intolerance. Despite the “changed nomenclature” and selective inclusions of agency recommendations, the very first line of the order identifies the Proclamation as an “outgrowth” of the previous Executive Order attempts to limit travel.[31] Moreover, the Trump administration’s public statements about the new Proclamation indicate that it is the same in substance to the previous executive orders and that changes are “mostly minor technical differences.”[32] Plaintiffs in the Fourth Circuit highlight that “contours of the ban” still reflect a “religious ‘gerrymander.’”[33] Thus, Plaintiffs will argue that the Proclamation is still animated by the desire to ban Muslims, violating the Establishment Clause’s commend that the Government not target or disfavor people based on their religion.

Lastly, the government’s own delay in implementing the Proclamation spurs skepticism. The Trump administration has repeatedly emphasized the need for immediate action in crafting the travel bans.[34] The Proclamation details that the President “act[s] to protect the security and interests of the United States and its people.”[35] Yet, despite the government’s claims for urgency in halting travel, the Executive Order deferred implementation of the bulk of its restrictions for almost a month.[36] Thus, the government has undermined its own claims of urgency by delaying implementation while still not correcting deficiencies that made prior orders unlawful.

Conclusion

The Fourth Circuit is likely to side with Plaintiffs in granting an injunction in part given both the district court’s preliminary injunction as well as the Fourth Circuit and Supreme Court’s past partial injunctions. While the newest rendition of the ban attempts to distance itself from the religious animus that motivated the first two Executive Orders, the new Proclamation is largely still motivated by a non-secular purpose. Following the language of the Supreme Court, the Fourth Circuit’s decision will likely center on whether individuals from the Designated Countries have a “credible claim of a bona fide relationship with a person or entity in the United States.”[37] Thus, the Fourth Circuit will likely enjoin the Proclamation from barring entry to individuals that have immediate family members in the United States.

_______________

[1] Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 27, 2017).

[2] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017), vacated No. 16-1436, 2017 WL 4518553.

[3]  Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 9, 2017).

[4] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017).

[5] See Trump v. Int’l Refugee Assistance Project, No. 16-1436, 2017 WL 4518553, at *1 (Oct. 10, 2017).

[6] Pete Williams, Trump Restricts Visas From Eight Countries as Travel Order Expires, NBC News (Sept. 25, 2017, 8:35 AM), https://www.nbcnews.com/politics/immigration/trump-restricts-visas-eight-countries-travel-order-expires-n804366.

[7] See Proclamation, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *40 (D. Md. Oct. 17, 2017).

[13] Id. at *88; see Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

[14] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[15] See generally Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017).

[16] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[17] Id. at 34-35.

[18] Id. at 35.

[19] Id. at 1.

[20] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *78 (D. Md. Oct. 17, 2017).

[21] First Cross-Appeal Brief for Appellees at 23, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[22] 8 U.S.C. § 1152(a) (2012).

[23] 8 U.S.C. § 1152(a)(1)(A) (2012).

[24] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *20 (D. Md. Oct. 17, 2017).

[25] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 637 (4th Cir. 2017), (Thacker, J., concurring) (“Here, the ultimate effect of what EO–2 actually does is require executive agencies to deny visas based on nationality.”).

[26] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *21 (D. Md. Oct. 17, 2017).

[27] Hawaii v. Trump, 859 F.3d 741, 774, 779 (9th Cir. 2017).

[28] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Larson v. Valente, 456 U.S. 228, 255 (1982).

[29] 403 U.S. 602 (1971).

[30] Id. at 612–13.

[31] See Appellee’s Opposition to Motion to Stay at 4, Hawaii v. Trump, (9th Cir. 2017) (No. 17-17168); see Proclamation, supra note 1.

[32] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *70 (D. Md. Oct. 17, 2017).

[33] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533–35, 538 (1993)).

[34] See Donald Trump (@realDonaldTrump), Twitter (June 3, 2017, 7:17 P.M.), https://twitter.com/realDonaldTrump/status/871143765473406976 (“We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!”); Aric Jenkins, Sean Spicer Says President Trump Considers His Tweets ‘Official’ White House Statements, Time (June 6, 2017), http://time.com/4808270/sean-spicer-donald-trump-twitter-statements (Former Press Secretary Sean Spicer has previously stated that the President’s tweets should be considered official statements).

[35] Proclamation, supra note 1.

[36] See id. (The Proclamation was announced on September 27th, yet many of the restrictions were not set to take effect until October 18th.).

[37] Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

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21Oct

Weekly Roundup – 10/14-10/21

Categories: 4th Cir. Blog Weekly Roundup
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American Humanist Association v. Maryland-National Capital Park

In this First Amendment case, the Fourth Circuit reversed the District Court’s ruling that a 40-foot tall Latin cross, established as a monument to fallen soldiers of World War I, did not violate the Establishment Clause. The entire panel found the plaintiffs had standing to challenge the monument’s constitutionality, and a majority found that the Lemon test was satisfied, with one judge dissenting. Consequently, the Fourth Circuit found the Latin cross unconstitutional and reversed.

Borzilleri v. Mosby

In this First Amendment case, the plaintiff was relieved of her position as Assistant State Attorney following the election of her new boss, the defendant-State Attorney. The plaintiff sought damages for violations of her freedom of association and speech. The Fourth Circuit, in upholding the District Court’s dismissal of all claims, found the defendant was entitled to qualified immunity under the theory of political patronage.

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