Tuesday, October 28, 2014
Judge Reggie B. Walton (D.D.C.) yesterday dismissed an action by True the Vote against the IRS for politicized foot-dragging on its 501(c)(3), not-for-profit application. The ruling ends True the Vote's case against the IRS, with very little chance of a successful appeal.
True the Vote sued the IRS after the agency took a long time with its 501(c)(3) application and requested additional information from the organization before granting not-for-profit status. True the Vote argued that the IRS did this because True the Vote was a politically conservative organization aligned with the Tea Party, in violation of the First Amendment, the IRC, and the APA.
But Judge Walton dismissed the organization's claims for declaratory and injunctive relief as moot, after the IRS ultimately granted 501(c)(3) status, leaving nothing more for the court to order in terms of relief. The court also ruled that the "voluntary cessation" exception didn't apply, because the IRS, by the plaintiff's own reckoning (and the court's judicial notice), "suspended" its "targeting scheme" on June 30, 2013, and wouldn't re-engage in the footdragging.
Judge Walton dismissed the plaintiff's claim for monetary relief, ruling that there's no Bivens remedy, because the IRC already provides a comprehensive statutory remedial scheme. (It didn't matter that the plaintiff didn't like the scheme, only that it existed.)
Finally, Judge Walton dismissed the plaintiff's statutory claim that the IRS requested and inspected more information than necessary from True the Vote, because the IRC allows it to do that.
True the Vote can appeal, but Judge Walton's ruling is likely to be upheld.
Thursday, October 23, 2014
The Constitutional Accountability Center is examining Chief Justice John Roberts's first decade in office in a series of posts and articles called Roberts at 10. Here's the intro.
Brianne Gorod, the CAC's appellate counsel, posted most recently on Chief Justice Roberts and federal power, in particular, NFIB. Here's her conclusion:
[I]t is nonetheless clear that the Chief Justice is concerned about the scope of federal power and, in particular, the breadth of the federal regulatory state . . . . And while Chief Justice Roberts may not have the same appetite to change the law in these areas as Chief Justice Rehnquist had, it also seems clear that Chief Justice John Roberts's views on the Commerce Clause and the Spending Clause aren't exactly what Judge Roberts presented them to be at his confirmation hearing in 2005. Just how different they are . . . remains to be seen. But supporters of the Affordable Care Act shouldn't give Chief Justice Roberts too much credit for his decision in NFIB. It's complicated.
Saturday, October 18, 2014
The Supreme Court today rejected the applications by the Justice Department and civil rights groups to vacate the Fifth Circuit's stay of a district judge's injunction against Texas's voter ID law, SB 14. The ruling means that Texas can implement voter ID under SB 14 in the fall elections.
The brief, unsigned order simply rejected the applications for a stay.
But Justice Ginsburg wrote a dissent, joined by Justices Sotomayor and Kagan. Justice Ginsburg distinguished the Texas case from the North Carolina and Ohio cases, writing that "[n]either application involved, as this case does, a permanent injunction following a full trial and resting on an extensive record from which the District Court found ballot-access discrimination by the State." She also wrote that the Fifth Circuit didn't properly defer to the district court ruling, and that halting SB 14 wouldn't cause disruption or confusion in the election (the Fifth Circuit's principal reason for rejecting the district court's injunction).
Justice Ginsburg also reviewed the district court ruling striking SB 14, and noted that it failed preclearance under Section 5 of the Voting Rights Act (pre-Shelby County). She concluded,
The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters. To prevent that disenfranchisement, I would vacate the Fifth Circuit's stay of the permanent injunction ordered by the District Court.
Thursday, October 16, 2014
The Arkansas Supreme Court yesterday struck the state's voter ID requirement under the state constitution. The unanimous ruling means that Arkansas will not use Act 595's voter ID requirements in the upcoming elections.
The ruling is based on state constitutional law only, and therefore won't and can't be appealed to the United States Supreme Court.
The state high court ruled that Act 595's voter ID requirement added a voter requirement to those set in the state constitution. Arkansas's constitution, art. 3, Section 1, says,
Except as otherwise provided by this Constitution, any person may vote in an election in this state who is:
(1) A citizen of the United States;
(2) A resident of the State of Arkansas;
(3) At least eighteen (18) years of age; and
(4) Lawfully registered to vote in the election.
The court said, "These four qualifications set forth in our state's constitution simply do not include any proof-of-identity requirement." The court struck Act 595 on its face.
The court also rejected the argument that voter ID was simply a procedural method of identifying a voter, and therefore constitutional under a state constitutional provision allowing such methods:
We do not interpret Act 595's proof-of-identity requirement as a procedural means of determining whether an Arkansas voter can 'lawfully register to vote in the election.' Ark. Const. art. 3, Sec. 1(4). Under those circumstances, Act 595 would erroneously necessitate every lawfully registered voter in Arkansas to requalify themselves in each election.
Justice Courtney Hudson Goodson concurred in the result, but because Act 595 failed to get a two-thirds majority vote in both houses of the legislature as required by a 1964 amendment to the constitution that sets the requirements for identification and registration of voters (and does not include photo ID) and allows for legislative amendment of those requirements if the legislature votes by two-thirds in both houses.
The Fifth Circuit this week stayed an earlier district court judgment and injunction against Texas's voter ID law, SB 14. Unless the Supreme Court steps in, this means that SB 14 will apply to November's elections.
The Fifth Circuit action is not a ruling on the merits, however. Instead, it preserves the status quo under SB 14, pending appeal of the district court judgment to the Fifth Circuit.
The court said that changing the rules so close to the election risks too much confusion: "The judgment below substantially disturbs the election process of the State of Texas just nine days before early voting begins. Thus, the value of preserving the status quo here is much higher than in most other contexts." (Early voting starts on Monday in Texas.)
This is just the latest of four cases challenging state elections laws that has gone to the Supreme Court this fall, just before the elections, all on emergency applications related to lower court injunctions, and not on the merits. The Court halted Wisconsin's voter ID law; it allowed restrictions on early voting in Ohio; and it allowed restrictions on same-day voter registration and voting in the wrong precinct in North Carolina.
Wednesday, October 15, 2014
With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterling, the situation of James Risen is in limbo. In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source.
Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT. As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).
Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others. The segment explains and situates the controversy, including its current status under President Obama. It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted."
The entire segment is definitely worth watching:
Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:
AMY GOODMAN: So, you’re covering the very people who could put you in jail.
JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.
A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here). One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.
For ConLawProfs teaching First Amendment, these "sources" could be well-used.
October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 14, 2014
On Sunday afternoon before a Monday federal holiday, federal district judge Timothy Burgess of the District of Alaska issued an opinion in Hamby v. Parnell and immediately enjoined officials of the state of Alaska from enforcing either the statute or state constitutional provision barring same-sex marriages.
Judge Burgess' 25 page opinion predictably relied upon the Ninth Circuit's decision in Latta v. Otter concluding that the same-sex marriage bans of Idaho and Nevada violated the Equal Protection Clause and using the Circuit's heightened scrutiny standard for sexual orientation. Judge Burgess also found that the Alaska laws violated the Due Process Clause because they infringe on the "fundamental right to choose whom to marry."
In the Due Process discussion, Judge Burgess has an interesting invocation of originalism:
In Lawrence [v. Texas], the critical mistake identified by the Supreme Court in its earlier reasoning [in Bowers v. Hardwick] is the same error made by Defendants in this case: in the desire to narrowly define the rights protected by the Fourteenth Amendment, they “fail to appreciate the extent of the liberty at stake.”
Our forefathers wrote the Bill of Rights hundreds of years ago and could not have predicted “the components of liberty in its manifold possibilities” as we see today. As the Supreme Court articulately explained, “those who drew and ratified the Due Process Clause...knew times can blind us to certain truths and later generations can see that laws once necessary and proper in fact only serve to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” The Plaintiffs in this case do not ask the Court to recognize an entirely new fundamental right to same-sex marriage; rather, Plaintiffs wish to participate in the existing liberty granted to other couples to make a deeply personal choice about a private family matter.
Alaska has filed an Emergency Motion for Stay Pending Appeal, arguing in part that there is a "reasonable likelihood the Ninth Circuit will rehear Latta en banc and thus vacate the panel's decision." This is largely based on the Ninth Circuit's application of heightened scrutiny in the panel opinion.
But recall that this heightened scrutiny is based on SmithKline Beecham Corp. v. Abbott Labs, decided 10 months ago and which was denied a rehearing en banc.
And recall also that while Justice Kennedy of the United States Supreme Court granted a stay of Latta, he later clarified that the stay was only as to Idaho and not Nevada (although the Ninth Circuit's heightened scrutiny standard was applied to the laws of both states), and the stay vacated on Friday.
Additionally, Alaska argues that "conditions compelling Supreme Court review of this issue could easily develop very soon." Recall that the Supreme Court denied certiorari of the decisions from three circuits finding same-sex marriage bans unconstitutional. As Alaska argues:
The Sixth Circuit heard argument in early August regarding cases14 from four states (Michigan, Kentucky, Tennessee, and Ohio) and could issue a decision at any time, and the Fifth Circuit has expedited argument of Louisiana and Texas cases and could issue a decision by end of this year. Accordingly, circumstances are likely to develop in which the Supreme Court is virtually obligated to review the issue.
Yet given the lack of endurance of previous stays, there is little reason to believe Alaska would be considered a different case.
October 14, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Thursday, October 9, 2014
Judge Nelva Gonzales Ramos (S.D. Tex.) ruled today that Texas's new voter ID law violated the Constitution and entered "a permanent and final injunction against enforcement of the voter identification provisions . . . of SB 14." Judge Ramos concluded that "SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose." Judge Ramos also held that "SB 14 constitutes an unconstitutional poll tax."
Judge Ramos ordered Texas to "return to enforcing the voter identification requirements for in-person voting in effect immediately prior to the enactment and implementation of SB 14."
The ruling comes the same day as the Supreme Court vacated an earlier Seventh Circuit stay of a district court injunction against Wisconsin's voter ID law.
The Supreme Court this evening vacated the Seventh Circuit stay of an earlier district court injunction halting Wisconsin's voter ID law. (The Seventh Circuit upheld the state's voter ID law earlier this week.) This latest chapter in this dizzying case means that Wisconsin will almost surely not have voter ID in the upcoming elections. It also means that the Court may once again take up voter ID.
The Supreme Court order was brief, just one page, and said only that "the Seventh Circuit's stay of the district court's permanent injunction injunction is vacated pending the timely filing and disposition of a petition for a writ of certiorari . . . ." The stay will terminate if the Court denies cert.
Justice Alito dissented, joined by Justices Scalia and Thomas. Justice Alito wrote that the Seventh Circuit's ruling wasn't unreasonable, or "demonstrably" erroneous. Justice Alito alluded to the problem of absentee ballots going out without a notice of the voter ID requirement, suggesting that these problems may have driven the Court to intervene.
Judge Colleen Kollar-Kotelly (D.D.C.) this week rejected a non-profit's challenge to the disclosure provisions in the Bipartisan Campaign Reform Act of 2002. The ruling was unsurprising, even if the case may be noteworthy, as it represents a next wave of challenges to campaign finance regulation.
The Independence Institute, a Colorado non-profit, sought declaratory and injunctive relief against FEC enforcement of BCRA's disclosure requirement as applied to a specific radio ad that the Institute planned to run before the fall elections. The Institute argued that the requirement was overbroad as applied, because the planned ad was genuine issue advocacy, and not express advocacy.
Judge Kollar-Kotelly was blunt in rejecting this argument:
This dispute can be distilled to the application of the Supreme Court's clear instructions in Citizens United: in no uncertain terms, the Supreme Court rejected the attempt to limit BCRA's disclosure requirements to express advocacy and its functional equivalent. Plaintiff in this case seeks the same relief that has already been foreclosed by Citizens United.
Judge Kollar-Kotelly then rejected the Institute's attempts to distinguish Citizens United, ruled in favor of the FEC, and upheld the disclosure requirement.
This ruling was hardly surprising: if a court is going to overturn disclosure requirements, it'll have to be the Supreme Court. Still, the case should get our attention as a next-wave challenge to campaign speech regulation--the challenge to disclosure requirements.
Wednesday, October 8, 2014
The Supreme Court today stayed the preliminary injunction ordered by the Fourth Circuit against North Carolina's elimination of same-day voter registration and the state's elimination of voting in an incorrect precinct. The ruling means that North Carolina will not have same-day voter registration or allow voting in an incorrect precinct in the fall elections. Still, the underlying merits case will move forward at the district court.
The case is notable, because North Carolina enacted its restrictions on voting immediately after the Supreme Court struck the coverage formula for preclearance under the Voting Rights Act in Shelby County. The move suggested that the state itself thought that its law wouldn't achieve preclearance. It illustrates the sweep and practical effects of the Shelby County ruling.
Justices Ginsburg and Sotomayor dissented from the stay, arguing that the Fourth Circuit was right to enjoin the provisions, and that North Carolina's evidence comparing African-American turnout in the 2010 primary election (relatively low) with African-American turnout in the 2014 primary (relatively high, and under the changes at issue in the case) was flawed, because primary voting patterns are not representative of general election voting patterns.
A divided three-judge district court in the Eastern District of Virginia ruled that the district lines for Virginia's Third Congressional District violated equal protection. The court left the district in place for the fall elections, but ordered the state legislature to redraw the boundaries in the next legislative session.
The ruling tests whether and when a state's use of race to increase the percentage of racial minority voters in a district above the pre-existing percentage--for the stated reason to avoid retrogression under Section 5 of the Voting Rights Act (pre-Shelby County)--violates equal protection.
In other words: When can a state pack racial minority voters into a district in a way that dillutes their influence elsewhere, in the name of compliance with Section 5 of the VRA?
A similar issue is now before the Supreme Court in the Alabama cases, set for oral argument on November 12. We'll have an argument preview and review.
The legislature drew Virginia's Third in 2012 with an eye toward satisfying the non-retrogression standard in Section 5 of the Voting Rights Act. (At the time, before Shelby County struck the coverage formula for Section 5, Virginia was a covered jurisdiction.) In particular, the legislature used a 55 percent floor for the percentage of persons of voting age who identified as African America (the "BVAP"), so that the district wouldn't fall below a 55 percent BVAP. The legislature then increased the BVAP from 53.1 percent (the BVAP in the old district, the benchmark, under the 2000 census) to 56.3 percent (the BVAP in the redrawn district, based on the 2010 census). DOJ precleared the plan under Section 5 (again, before Shelby County).
Plaintiffs sued, arguing that the plan was a racial gerrymander in violation of the Equal Protection Clause.
The court ruled that legislative history and circumstantial evidence showed that the predominant purpose of the plan was race, and that the plan was subject to strict scrutiny. The court assumed, without deciding, that compliance with Section 5 was a compelling state interest before the Court struck Section 4 in Shelby County, but ruled that the redrawn district wasn't narrowly tailored to meet that interest. In particular, the court, citing Bush, said that the BVAP increase wasn't narrowly tailored "when the district had been a safe majority-minority district for two decades." The court wrote that "[w]hile the BVAP increase here is small than in Bush [where a plurality of the Supreme Court held that a BVAP increase from 35.1 percent to 50.9 percent wasn't narrowly tailored to achieve non-retrogression], the principle is the same." The court also said that the legislature's use of a 55 percent BVAP threshold (as a baseline below which the district could not fall), as opposed to some other analysis of racial voting patterns, wasn't narrowly tailored.
Judge Payne dissented.
Unless and until there's an appeal, Virginia's Third will stay the shape of the 2012 plan for the 2014 elections. But the legislature will have to redraw it next year.
Tuesday, October 7, 2014
In the latest, and almost certainly last, chapter of the case challenging Wisconsin's voter ID law, a three-judge panel of the Seventh Circuit upheld the law and reversed a district court permanent injunction against it. Once again, the upshot is that Wisconsin will have voter ID for the fall elections.
The ruling was hardly a surprise, given the Seventh Circuit's history with this case. Recall that the same three-judge panel earlier stayed the district court ruling and injunction, and the full court declined to rehear that decision. This most recent ruling resolves the merits and almost certainly closes the case.
The court ruled that the challenge to Wisconsin's voter ID law was virtually indistinguishable from the challenge to Indiana's voter ID in Crawford v. Marion County. Recall that the Supreme Court in that case upheld Indiana's voter ID law, because the plaintiffs didn't show that it would significantly impede citizens' ability to vote, and because the government had rational reasons for it. The Seventh Circuit said for the very same reasons that Wisconsin's voter ID law did not violate the constitutional right to vote. Indeed, the court noted that this was probably an easier case than Crawford.
The court also rejected the plaintiffs' claim under Section 2 of the Voting Rights Act. The court said that any racial disparity in possessing a voter ID was not due to discriminatory intent or to any factors (like ability to obtain voter ID, or a person's ability to pay for it) that the state had control over. The court also rejected the plaintiffs' disparate impact claim, concluding that the numerical disparity alone (between voter ID for voters of different races) wasn't sufficient to show a violation.
Finally, the court said that the distrinct court injunction--"perpetual and unconditional"--swept far too broadly. But in the end, that didn't matter, because the court upheld voter ID on the merits.
Judge Catherine D. Perry (E.D. Mo.) temporarily enjoined an ad hoc rule that allowed police officers to order peaceful protesters in Ferguson to move along rather than standing still (and threatening them with arrest if they don't). The ruling means that the law enforcement cannot enforce the move-along rule pending the outcome of the case on the merits. But Judge Perry was quick to write that nothing in her ruling stopped the police from enforcing the Missouri refusal-to-disperse statute, lawfully controlling crowds, or otherwise lawfully doing their jobs.
The case, Abdullah v. County of St. Louis, Missouri, challenged the ad hoc rule developed by law enforcement authorities that allowed police officers to order peaceful protesters to move along, instead of standing still, even when they aren't violated any law. The rule is just that, a rule (and not a statutory law), developed by law enforcement in the context of the Ferguson protests.
Judge Perry concluded that the plaintiffs were likely to succeed on the merits that the move-along rule was void for vagueness and violated free speech.
The Supreme Court on Monday heard oral arguments in Heien, the case asking whether the Fourth Amendment permits an officer to make a car stop based on a mistake of law. (Our argument preview is here.) The petitioner put the Fourth Amendment--and only the Fourth Amendment--in front of the Court. But based on questions yesterday, the Court seemed to look for ways to wiggle around that framing--and possibly rule on something more, or less.
The petitioner worked mightily at argument and in briefing to distinguish between the underlying Fourth Amendment right and the remedy (exclusion of the evidence). That's because North Carolina automatically excludes evidence if the search violated the Fourth Amendment (without a good-faith exception)--a rule favorable to the petitioner, assuming a Fourth Amendment violation. (The state also interprets its own state constitutional provision in lock-step with the Fourth Amendment.) So the petitioner argued that if the Supreme Court ruled in his favor on the Fourth Amendment (alone), the Court should remand the case for a state-court ruling on the remedy (exclusion of the evidence, under North Carolina law). This, of course, hinged on the Supreme Court ruling on the Fourth Amendment alone.
The Court seemed skeptical. Led by Justice Scalia, questions pressed the petitioner on why it should separate the rights analysis from the remedy, when usually the two go hand-in-hand. Moreover, it wasn't clear why the petitioner should be able to take advantage of a federal Fourth Amendment ruling plus a state exclusionary rule in order to get the evidence excluded. The petitioner had answers (including the fact that the parties only barely briefed the remedy question), but it was clear that this was a sticking point.
On the other hand, some on the Court wondered whether the Court needed to get to the presented Fourth Amendment issue at all. That's because this was a consensual search (after the officer stopped the car). Justice Ginsburg led this line of questioning, but others joined in. Again, the petitioner had answers (fruit of the poisoning tree--the tree being the initial stop based on a mistake of law), but this, too, may be a sticking point.
In all, there were relatively few questions (and few indications one way or the other) on the presented question, whether the Fourth Amendment permits an officer to make a stop based on a mistake of law.
Monday, October 6, 2014
In its Order today, the Court denied certiorari to a raft of cases, including the cases seeking review of opinions in which appellate courts found bans on same-sex marriage to be unconstitutional.
These cases are from three circuits:
From the Seventh Circuit: Bogan v. Baskin and Walker v. Wolf, decided in September, regarding the same-sex marriage bans in Indiana and Wisconsin;
From the Fourth Circuit's Bostic v. Rainey, regarding Virginia's prohibition there were three petitions, McQuigg v. Bostic, Schaefer v. Bostic, and Rainey v. Bostic. The Fourth Circuit has already issued a Mandate, lifting the stay.
Friday, October 3, 2014
The Supreme Court will consider that question on First Monday, when it hears oral arguments in Heien v. North Carolina. Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases (with permission):
An officer in the Surry County Sheriff’s Department stopped the petitioner’s vehicle along an interstate highway because it had a broken right brake light. (The left brake light worked.) Upon a subsequent consensual search of the vehicle, the officer found cocaine, and the petitioner was charged with trafficking. The petitioner moved to suppress the evidence, arguing that the officer’s stop violated the Fourth Amendment. In particular, he argued that state law required only one operable brake light (an interpretation that the State does not dispute), that the officer based his stop on the mistaken belief that the petitioner violated state law, and that the officer therefore did not have reasonable suspicion that the petitioner broke the law.
Early one morning in April 2009, Nicholas Heien and Maynor Javier Vasquez were traveling on Interstate 77 through Surry County, North Carolina, in Heien’s Ford Escort. Vasquez was driving, and Heien was sleeping in the back seat.
Officer Matt Darisse of the Surry County Sheriff’s Department was patrolling the interstate. He noticed the car and followed it. As the Escort approached a slower-moving vehicle, Darisse saw that the car’s left brake light functioned properly, but that the car’s right brake light was out. Darisse pulled the car over and told Vasquez and Heien that he stopped them “for a nonfunctioning brake light.”
North Carolina law requires all vehicles to have “a stop lamp.” More particularly, the law says that “[n]o person shall . . . operate on the highways of the State any motor vehicle . . . manufactured after December 31, 1955, unless it shall be equipped with a stop lamp on the rear of the vehicle.” (Emphasis added.) No North Carolina appellate court had ever construed this statute to require two working stop lights. But a different statute requires that “[e]very motor vehicle . . . shall have all originally equipped rear lamps . . . in good working order[.]” (Emphasis added.) And yet another provision permits brake lighting systems to be “incorporated into a unit with one or more other rear lamps.” (Emphasis added.)
Darisse issued Vasquez a warning citation for the malfunctioning brake light. He then told Vasquez to step out of the car and asked him questions about where he was going. At the same time, another officer, who arrived sometime after the initial stop, walked to the back window of the car and asked Heien similar questions. Vasquez and Heien gave different answers. Darisse then asked Vasquez if he would “mind if we made a quick check to make sure you don’t have any drugs or guns or anything like that” in the car. Vasquez told Darisse that he would have to ask Heien, because the car belonged to Heien. Heien consented.
The officers then searched Heien’s car and found a plastic sandwich baggie containing cocaine.
The State charged Heien with trafficking in cocaine. (The State also charged Vasquez. He pleaded guilty to attempted cocaine trafficking.) Heien filed a motion to suppress the evidence that the officers found in his car, arguing that the search violated the Fourth Amendment. In particular, Heien claimed that Darisse lacked “reasonable articulable suspicion that criminal activity had been committed or was being committed, or that a motor vehicle traffic offense or infraction had occurred” when Darisse stopped Heien’s car. (If the stop was illegal, then the subsequent search was illegal, and the court would have to suppress the evidence.) Heien also argued that his consent to the search was invalid. The trial court denied these motions.
Heien pleaded guilty to two variations of drug trafficking and was sentenced to two consecutive prison terms of ten to twelve months. But he reserved the right to appeal the denial of his motion to suppress the evidence.
On appeal of Heien’s motion to suppress, the North Carolina Court of Appeals reversed the trial court, but a sharply divided North Carolina Supreme Court reserved the Court of Appeals (and affirmed the denial of Heien’s motion to suppress). Importantly, the State did not argue to the North Carolina Supreme Court that the state law required more than one working brake light, and the North Carolina Supreme Court did not rule on that question. Instead, the state high court assumed that the law required just one working brake light.
The North Carolina Court of Appeals and Supreme Court both later rejected Heien’s challenge to the validity of his consent and upheld his conviction and sentence. This appeal followed.
Under the Fourth Amendment, an officer may stop a vehicle based only on reasonable suspicion that a crime has been committed. The Supreme Court has held that “reasonable suspicion” includes a reasonable mistake of fact. This means that an officer may stop a vehicle based on reasonable suspicion, even when that reasonable suspicion is, in turn, based on an officer’s mistake of fact. This rule is designed to balance the intrusion on an individual’s privacy in a car stop, on the one hand, and the state’s interest in allowing officers to stop a vehicle when there is a chance of illegal behavior, on the other. In short, the rule gives officers some leeway to make a quick factual judgment, under conditions of uncertainty, that a law has been broken.
This case tests whether this rule extends to an officer’s reasonable mistake of law. If so, then an officer could stop a vehicle based on a reasonable mistake of law that a crime has been committed, just as the officer could stop a vehicle based on a reasonable mistake of fact that a crime has been committed.
Heien argues that an officer’s reasonable suspicion must be measured against a correct interpretation (and not a misinterpretation) of the law. He says that the purpose of the reasonable suspicion standard is to constrain the discretion of an officer and to avoid arbitrary stops, and that a stop based on any misinterpretation of the law (including a reasonable misinterpretation) undermines that core purpose. He claims that our tradition supports this—that the common law has long held officers liable for mistakes of law—and that familiar legal precepts support this, too (for example, the precept that “ignorance of the law is no excuse”). He contends that various canons of statutory construction “reinforce the principle that government should not benefit from mistaken interpretations of ambiguous or otherwise confusing criminal laws.”
Heien acknowledges that the Fourth Amendment tolerates stops based on reasonable mistakes of fact. But he says that the reasons for this rule do not carry over to reasonable mistakes of law. In particular, he claims that the Fourth Amendment recognizes that officers often have to make quick factual assessments under conditions of uncertainty, and that the doctrine gives officers the flexibility to make good-faith mistakes of fact. He says that an officer’s legal judgment is different, however, because knowledge of the law does not require ad hoc, case-by-case assessment; instead, it is fixed and determinate and susceptible to ex ante analysis by the courts.
Next, Heien argues next that an officer’s mistake of law is sometimes relevant, but only to the remedy, and not to the underlying Fourth Amendment right. He means that an officer’s mistake of law is relevant in determining whether the evidence obtained should be excluded, or whether an officer enjoys qualified immunity for the Fourth Amendment violation, that is, to questions of remedy for Fourth Amendment violations. But he says that the same mistake of law is not relevant in determining whether the officer violated the underlying Fourth Amendment right—the issue in this case. He says that a long line of Supreme Court cases supports this interpretation, and shoe-horning the mistake-of-law inquiry into the Fourth Amendment question would be difficult to administer, lead to varying results (and thus varying versions of the Fourth Amendment), and undermine our very system of individual rights protection.
Finally, Heien argues that even if the Court considers Darisse’s mistake of law on the question of the underlying right, the Court should still rule that Darisse violated the Fourth Amendment. Heien claims that Darisse’s mistake was not based on his reasonable reliance on assurances from courts or legislatures (as in other cases), but instead on “his own overly aggressive interpretation of the law.” Moreover, Heien contends that other problems could arise if the Court concluded that Darisse did not violate the Fourth Amendment because of his mistake. In particular, Heien says that police departments would be discouraged from educating officers on the law, that they would be discouraged from asking legislatures to clarify ambiguous laws (because that would shrink officer discretion), and that motorists could be subject to stops for nearly any reason—so long as the officer made a reasonable mistake. Heien claims that it is the legislature’s job, not the officers’ job, to determine what traffic laws are necessary to promote safety; but allowing an officer to dodge the Fourth Amendment by making a mistake of law would, in essence, put the law solely in the officer’s hands.
The State argues that reasonable mistakes of law, just like reasonable mistakes of fact, can support an officer’s reasonable suspicion to make a traffic stop. The State says that the reason for allowing mistakes of law to support an officer’s reasonable suspicion—to give officers some room, given the often ambiguous situations in which they execute their duties—applies equally to mistakes of law. It also claims that the law has recognized that mistakes of law can be objectively reasonable, and that the Supreme Court has upheld officer actions based on mistakes of law. And it contends that any effort to distinguish between mistakes of fact and mistakes of law would be fruitless, because mistakes of fact and mistakes of law are often difficult to distinguish.
Next, the State argues that an officer’s mistake of law is not only relevant to the question of remedy, but also the question of right. In particular, the State claims that the exclusionary rule doctrine does not limit the consideration of an officer’s mistake of law to the remedy (exclusion of evidence). And it says that under the qualified immunity doctrine, reasonableness for the purpose of officer immunity is different than reasonableness for the purpose of the Fourth Amendment violation itself. Therefore, the State contends, contrary to Heien, that the qualified immunity doctrine says nothing about whether a mistake of law might support the question of the right itself. The State claims that even if an officer’s mistake of law does not support an investigatory stop, the good-faith exception to the exclusionary rule would apply, and the evidence would come in. (Note that the good-faith exception to the exclusionary rule is not part of the Question Presented in the case, and Heien does not argue it.)
Finally, the State argues upholding stops based on reasonable mistakes of law advances the interests underlying the Terry doctrine. In particular, the State says that the Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968), recognized that officers often had to take “swift action predicated upon on-the-spot observations,” and therefore allowed investigatory stops based on mere reasonable suspicion (and not the higher standard, probable cause). The State claims that those same considerations support the use of an officer’s reasonable mistakes of law in making a stop. The State says that an officer may make a mistake of fact for any number of perfectly reasonable reasons. The State claims that this is a case in point: “The unsettled question of law here involved the interpretation of a statute that had been on the books for more than fifty years. No one had ever challenged the interpretation that all brake lights were required to be in working order.” The State says that there is no reason to believe that Darisse would have received any different advice if he could have asked for an interpretation of law in the field. In other words, the State claims that Darisse’s interpretation of the law was reasonable.
The government, as amicus curiae on the side of the State, argues first that the Fourth Amendment, where the ultimate touchstone is reasonableness, allows an officer to perform a car search when the officer reasonably believes that conduct violates the law, even if the officer’s belief turns out to be mistaken. The government says that this rule properly balances the suspect’s right to liberty and the state’s duty to control crime. The government claims that this only allows an officer to “start the judicial process,” and the courts can sort out the legality of the stop later. The government contends that a different rule would hamper law enforcement by discouraging officers from “starting the judicial process” in the first place.
Next, the government argues that courts since the Founding have held that officers could make a brief seizure when they acted on reasonable interpretations of the law, even when those interpretations turned out to be wrong. The government claims that courts since the Founding have even allowed mistakes of law in determining probable cause (a higher bar than the reasonable suspicion applicable here). The government says that more recent Supreme Court decisions similarly hold that an officer does not violate the Fourth Amendment when the officer acts on a reasonable mistake of law, and that those cases do not distinguish between the remedy question and the rights question, as Heien contends.
The government argues further that the same justifications that allow an officer to stop a vehicle upon a mistake of fact also allow an officer to stop a vehicle upon a mistake of law, that is, that mistakes of law should be treated the same as mistakes of fact for Fourth Amendment purposes. In particular, the government contends that “the strong public interest in bringing suspects into court when criminal conduct is probable but not certain” should justify allowing an officer’s mistakes of law as well as mistakes of fact to support a stop. The government claims that Heien’s attempts at distinguishing between mistakes of fact and mistakes of law are unavailing. It also says that the Court should not draw on the legal maxims or other rules from other areas of the law, as Heien argues, and that the good-faith exception to the exclusionary rule only reaffirms the fact that reasonable suspicion allows for reasonable mistakes.
Finally, the government argues that Darisse’s stop was supported by reasonable suspicion. The government claims that Darisse’s interpretation of North Carolina law was reasonable—that he reasonably interpreted the statutes to outlaw a broken brake light—and that he therefore had the requisite reasonable suspicion to make the stop.
This case will determine who should get the benefit of the doubt—a police officer, or a suspect—with regard to any evidence obtained when an officer makes a reasonable mistake of law leading to a traffic stop. That’s because an officer’s reasonable mistake of law necessarily means that the suspect did not actually engage in illegal activity justifying a stop. If the benefit goes to the suspect, then, the stop was invalid, and any evidence obtained in a subsequent search must be excluded. If the benefit goes to the officer, the stop was valid (even if based on a mistake of law), and the evidence can be used against the suspect.
But this benefit of the doubt could have other serious implications. For example, Heien and amici supporting him claim that giving the benefit of the doubt to the officer will lead to all sorts of public policy problems. These include decreased incentives for officer education; decreased incentives for clarifying uncertain law; increased incentives for stops for lawful conduct (so long as the state can gin up a reasonable post-hoc statutory rationalization for the stop); and even officer credibility in the community. One amicus points out that traffic stops disproportionately affect racial minorities. Another amicus points out that a ruling for the State would mean that police officers would be required to know less about the law than the general public (because, as Heien argues, “ignorance of the law is no excuse” for the general public).
On the other side, the State and its amici, including Wisconsin, eighteen other states, and the District of Columbia, say that giving the benefit of the doubt to a suspect would discourage valid stops and hamper law enforcement. They say that giving the benefit to the officer strikes the right balance between individual privacy and law enforcement. And the government suggests that if there are problems with a stop (for example, when a stop is based on an unreasonable interpretation of the law), the courts can sort them out later.
The case is also important because it will resolve a split in the federal and state courts. According to Heien’s Petition for Writ of Certiorari, the majority of federal courts of appeals and state high courts have concluded that a mistake of law cannot provide the reasonable suspicion necessary to justify a traffic stop. The North Carolina Supreme Court’s ruling is in the minority.
Thursday, October 2, 2014
A divided panel of the Fourth Circuit affirmed in part and reversed in part a district court ruling that declined to enjoin North Carolina's voting law under Section 2 of the Voting Rights Act. We posted on the district court case, with more background and links, here. (Recall that North Carolina moved swiftly to put this law into place after the Supreme Court struck the coverage formula for Section 5 of the Voting Rights Act in Shelby County. The move suggested that North Carolina itself thought that the law, or portions of it, wouldn't pass muster under Section 5, but that it would pass a Section 2 challenge.)
The ruling means that the state's elimination of same day registration and prohibition on counting out-of-precinct ballots are preliminarily enjoined during the pendancy of the case, but that the other portions of the law are not. Thus, the following provisions will go into effect pending the outcome of the merits case: (1) the state's reduction of early voting days; (2) expansion of allowable voter challengers; (3) elimination of discretion of county boards of election to keep polls open an additional hour on election day; (4) the elimination of pre-registration of 16- and 17-year-olds; (5) and the "soft" roll-out of voter identification requirements.
Unless the full Fourth Circuit or the Supreme Court steps in (and quick), that'll be the situation for the fall election. (The North Carolina AG reportedly said he'd appeal.)
The majority was quick to remind us that this is is not a final ruling on the merits, and does not speak to the underlying merits challenge. That case is still plugging forward in the district court.
The majority pulled no punches when it wrote that "the district court got the law plainly wrong in several crucial respects." It went on to identify, point by point, eight seperate ways the lower court misinterpreted and misapplied Section 2 of the Voting Rights Act. Perhaps most importantly, the court said that the district court misinterpreted the Section 2 standard in relation to Section 5:
First, the district court bluntly held that "Section 2 does not incorporate a 'retrogression' standard" and that the court therefore was "not concerned with whether the elimination of [same-day registration and other features] will worsen the position of minority voters in comparison to the preexisting voting standard, practice or procedure--a Section 5 inquiry."
Contrary to the district court's statement, Section 2, on its face, requires a broad "totality of the circumstances" review. Clearly, an eye toward past practices is part and parcel of the totality of the circumstances
Further, as the Supreme Court noted, "some parts of the [Section] 2 analysis may overlap with the [Section] 5 inquiry. . . .
The issue goes to the relevant baseline: Should the court measure a voting change with reference to the state's immediately preceding practice, or with reference to some other, lower baseline? (The issue came up recently in the Ohio early voting case, too.) The Fourth Circuit said that Section 2's totality-of-the-circumstances analysis requires a court to judge a voting change with reference to the state's prior practice. That, along with the rest of the totality of the circumstances, meant that the plaintiffs were likely to succeed on their challenges to the two portions of the North Carolina law that the court enjoined.
The Supreme Court will consider its first Section 2 case after Shelby County this Term--the Alabama redistricting cases. We'll likely get a better sense from that case how the current Court will analyze a Section 2 challenge--and how (and whether) it overlaps with the Section 5 standard.
Judge Motz dissented, emphasizing the high standard for a preliminary injunction, the timing of the case (right before the election), and the problems with implementation and potential confusion.
Wednesday, October 1, 2014
The Ninth Circuit ruled in PRMA v. County of Alameda that the County's drug disposal ordinance--which requires any prescription drug producer who sells, offers for sale, or distributes drugs in Alameda County to collect and dispose of the County's unwanted drugs--did not violate the Dormant Commerce Clause. The ruling ends the plaintiffs' challenge to the ordinance, with little chance of a rehearing en banc or Supreme Court review.
The case involves Alameda County's Safe Drug Disposal Ordinance, which requires any prescription drug producer who sells, offers for sale, or distributes drugs in the County to operate and finance a Product Stewardship Program. That means that the producer has to provide for the collection, transportation, and disposal of any unwanted prescription drug in the County, no matter which manufacturer made the drug. The plaintiffs, industry organizations, including a non-profit trade organization representing manufacturers and distributors of pharmaceutical products, challenged the Ordinance under the Dormant Commerce Clause.
The Ninth Circuit affirmed a lower court's grant of summary judgment in favor of the County. The court said that the Ordinance did not discriminate on its face or in application against out-of-state manufacturers--that it applied equally to all manufacturers, both in and out of the County. The court noted that three of PRMA's members had their headquarters or principal place of business, and two others had facilities, in Alameda County and so were effected equally by the Ordinance. This means that all the costs of the Ordinance weren't shifted outside the County (as the plaintiffs argued) and that at least some of those affected had a political remedy (and thus were not "restrained politically," as in United Haulers.)
The court then applied the balancing test in Pike v. Bruce Church, Inc., and concluded that the Ordinance's benefits (environmental, health, and safety benefits that were not contested on the cross-motions for summary judgment) outweighed any burden on interstate commerce (the plaintiffs provided no evidence of a burden on the interstate flow of goods).
This is almost certainly the end of the plaintiffs' challenge: the ruling is unlikely to get the attention of the en banc Ninth Circuit or the Supreme Court, if the plaintiffs seek rehearing or cert.
Tuesday, September 30, 2014
Judge Ronald A. White (E.D. Okla.) ruled today in Oklahoma v. Burwell that the IRS rule providing subsidies for individual purchasers of health insurance on an exchange established by the federal government (and not a state government) ran afoul of the plain language of the Affordable Care Act. Judge White stayed his ruling pending appeal, however, so it has no immediate impact on subsidies in Oklahoma.
Judge White's ruling aligns with the D.C. Circuit panel decision in Halbig and stands opposite the Fourth Circuit ruling in King. (Recall that the full D.C. Circuit vacated the panel ruling and agreed to rehear the case en banc. That argument is set for December.) All this means that there is currently no circuit split on the issue; instead, the Fourth Circuit upheld the tax subsidies, the full D.C. Circuit will reconsider them in December, and the Tenth Circuit will consider them soon (on the inevitable appeal from Judge White's ruling).
Judge White wrote that the plain language of the ACA resolved the case. That language allows a tax subsidy for a purchaser of health insurance who is "covered by a qualified health plan . . . enrolled in through an Exchange established by the State under section 1311 of the [ACA]." 26 U.S.C. Sec. 36B(c)(2)(A)(i) (emphasis added). Like the panel in Halbig, Judge White said that the language was clear, and that the IRS rule extending credits to purchasers of health insurance on exchanges established by the federal government (and not a state) violated it.
Judge White downplayed the effect of striking the IRS rule, saying that "apocalyptic" claims about the challenges tot he IRS rule are overstated. In any event, he wrote, Congress could re-write the law to specifically authorize the subsidies.
Judge White also ruled that Oklahoma had standing to challenge the IRS rule, because the state, as a large employer, would have been subject to federal penalties for some of its employees who might purchase health insurance on the federal exchange and qualify for a subsidy under the IRS rule.
Judge White's ruling probably doesn't make this case any more (or less) likely to go to the Supreme Court soon. With just two circuits weighing in so far--and one of them vacating the panel ruling and rehearing the case en banc--the Court will likely wait to see what the full D.C. Circuit, and now the Tenth Circuit, do with it. Still, the challengers in the Fourth Circuit case have asked the Supreme Court to review it.