Thursday, October 9, 2014
In its opinion in Showtime Entertainment v. Town of Mendon, the First Circuit reversed a grant a summary judgment for the Massachusetts town and found that the zoning bylaws infringed on Showtime Entertainment's "right to engage in a protected expressive activited" violated the First Amendment.
Judge Juan Torruella's opinion for the unanimous panel first confronted the issue of whether the challenge to the zoning bylaws should be viewed as a facial challenge or as an as-applied challenge. Here, there was "little practical distinction": there were only four plots of land within the "Adult Entertainment Overlay District" to which the bylaws applied. But because the relief sought was an invalidation of the zoning bylaws, the court treated the challenge as a facial one.
Additionally, the court discussed whether the town's actions should be judged as content-based, thus meriting strict scrutiny, or should be judged as content-nuetral, meriting intermediate scrutiny. The court withheld its conclusion, finding that the zoning bylaws failed even the more deferential intermediate scrutiny standard.
The problem for the Town was that its stated governmental interests - - - its proferred secondary effects - - - did not further a substantial governmental interest unrelated to the speech. These interests were two: the town's "rural aethetics" and traffic. The problem for the Town was that it sought to advance these interests only as to the Showtime Entertainment lot of the four lots and not as to the other lots occupied by a 6,900-square-foot self-storage facility, a drive-in movie theater with an estimated capacity of 700 vehicles,
and a 10,152-square-foot nightclub. While the court clarified that its inquiry was not strictly a "underinclusive" one: "Nonetheless, we rightly pay attention to underinclusiveness where it reveals significant doubts that the government indeed has a substantial interest that is furthered by its proffered purpose."
Thus, as to the "rural aesthetics," the court noted that there was no cognizable difference between a large building hosting adult-entertainment or another large building. The court also noted that counsel for the Town conceded at oral argument that "what's in the building" also mattered, thus seemingly acknowledging that this was a content-based regulation. The traffic concerns suffered a similar fate, with the court finding no distinct traffic concerns for this type of business than for others along this heavily traveled route.
In some secondary effects cases, courts merely defer to studies, but here the court discussed them specifically (noting it conducted an "independent review of the studies") and found them lacking. The studies had a common theme regarding the effect of adult-entertainment businesses on neighborhoods: the effect has a "limited radius." This undermined the Town's fallback argument that Showtime Entertainment effected the rural aesthetic of the town as a whole, rather than the non-existing rural aesthetic along the busy highway. Additionally, the court detailed the traffic studies, finding that they did not actually mention traffic, or were "largely anecdotal, rely nearly exclusively on personal perceptions rather than verifiable data, and include significant hedging language, such as indicating that increased traffic is merely a hypothesis." The court also stated that in "several cases, they also make apparent that the true, primary concern is not traffic, but the type of patrons thought to visit adult-entertainment businesses," thus becoming content-based.
The secondary effects doctrine has proven a controversial one, with some of the Justices who first proffered the notion later disavowing it. The First Circuit refreshingly gives the doctrine a rigorous application.
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.
On Monday, the United States Supreme Court denied certiorari to the Fourth, Seventh, and Tenth Circuits that had held that an array of states' same-sex marriage ban statutes were unconstitutional.
On Tuesday, the Ninth Circuit issued its opinion holding that the same-sex marriage bans in Idaho and Nevada were unconstitutional, on substantially similiar reasoning to the cases from the other circuits.
On Wednesday, in a brief Order, Justice Anthony Kennedy, as Circuit Court Justice, entered a stay of the mandate of the Ninth Circuit opinion in Otter v. Lata. Here's the text of Kennedy's Order:
UPON CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, October 9, 2014, by 5 p.m.
While the Ninth Circuit applies intermediate scrutiny in the equal protection analysis, this does not seem to be sufficient to warrant a stay.
What does Justice Kennedy have in mind?
UPDATE: Later on Wednesday, Justice Kennedy issued a second Order clarifying that the stay applies only to Idaho and not to Nevada.
Here's the text of that Order:
UPON FURTHER CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated. The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.
Further updated on October 10 here.
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.
Villanova Law Review Symposium to Honor Professor Penelope J. Pether
October 24, 2014
- Christopher Tomlins, Professor of Law, University of California-Berkeley School of Law: "A Fierce and Critical Faith: A Remembrance of Penny Pether"
- Marianne Constable, Professor, University of California-Berkeley: "Be True to What You Said on Paper: Pether on U.S. Publication Practices, Precedent, and the Positivism of Law and Language"
- Nan Seuffert, Professor of Law, Wollongong University School of Law: "A Seat at the National Table: Pether's Culinary Jurisprudence"
- Joseph Pugliese, Professor, Macquarie University: "The Open in the Case: Guantanamo's Regime of Indefinite Detention and the Disintegration of Adnan Latif's Corporeal Hexis Through Administrative Practices of Torture"
- Kunal Parker, Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law: "Representing Interdisciplinarity"
- Mark Sanders, Professor of Comparative Literature, New York University: "Consequences of Reform: Penny Pether on Rape Law in Illinois and Australia"
- Peter Goodrich, Professor of Law, Cardozo School of Law: "On Foreign Ground: Friendship and the Force of Law"
More information here
Prof. Lou Sirico (Villanova) turns the counterfactual historical method on its head in his recently posted The Constitutional Convention: Drafting to Charter Future History. The result, argues Sirico: The Founders wrote and ratified the Constitution with an eye toward managing counterfactual futures.
Sirico looks at five areas--the debates surrounding the Ex Post Facto Clause, the authority to define international law, slavery, territorial expansion, and the decision not to include the word "national" in the text--to argue that the drafters sought to achieve, or avoid, certain futures.
For example, in forbidding ex post facto laws, the deputies were forbidding laws that the international community would have deemed illegitimate. Arguably, they attempted to prevent future Congresses from enacting laws that would have marked the new nation as lawless.
Sirico says that the counterfactual-future method suggests certain lessons on how we understand--and interpret and use--the document. Check it out.
Tuesday, October 7, 2014
In today's oral argument in Holt (Muhammad) v. Hobbs, the Court considered the question on which it granted certiorari: whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.
ConLawProf's own Steven Schwinn has penned a terrific preview for the ABA. The case occurs under the RLUIPA statute, of course, rather than the First Amendment, because RLUIPA provides greater protections as we previously explained, in the same manner that the RFRA statute at issue in last Term's Burwell v. Hobby Lobby Stores, Inc.
As I argue over in The Guardian, the issue of grooming raises larger issues, which the Justices mostly skirted, but the Justices clearly struggled with the argument that Arkansas had a compelling governmental interest served by prohibiting short beards. This discussion was marked by the vast majority of other states that allow prisoners to have beards (40) and the fact that Arkansas allows a medical exemption. Counsel for the Arkansas Department of Corrections explained that Arkansas had a different system of incarceration than other states (preferring barracks) and had an interesting doctrinal explanation for accommodating the medical condition but not the religious one:
The doctor's prescriptions invariably are get a clipper shave. And that brings a second point up, Your Honor, is that the policy's rationale was follow doctor's orders. And we think that is fundamentally of a different nature than a religious reason, because the Eighth Amendment law of deliberate indifference and the like admits a no countervailing security interest that come into play. Our policy is we follow doctor's orders and that's the end of the matter.
There was some discussion of the slippery slope variety, with Justice Kagan asking:
So whether it's a full beard or whether it's long hair or whether it's a turban, there will be some ability to say, even though it's just teeny tiny, there is some increase in prison security that results from disallowing this practice. And I guess I want to know, and this really fits in with several of the other questions that have been asked here, is how do we think about that question in the context of this statute?
Or as Chief Justice Roberts stated it:
But I mean, you're really just making your case too easy. I mean, one of the difficult issues in a case like this is where to draw the line. And you just say, well, we want to draw the line at half inch because that lets us win.
And the next day someone's going to be here with one inch. And maybe it'll be you. And then, you know, two inches.
It seems to me you can't avoid the legal difficulty just by saying, all we want is half an inch.
As ConLawProf Douglas Laycock appointed to argue on behalf of Holt/Muhammad, noted, Holt/Muhammad
made a pro se decision to limit his request. The Court expressly limited the question presented. So this case is only about half an inch.
That Holt/Mohammad's case is before the Court is one of statistical improbability. Kali Borkoski over at SCOTUSBlog has a terrific audio slideshow that demonstrates some of the difficulties of litigating RLUIPA claims. In Holt/Muhammad, the petition for certiorari was pro se from a negative Eighth Circuit decision; the vast majority of the 20,000 or so pro se petitions filed in federal courts each year do not reach the appellate level. Interestingly, the Eighth Circuit specifically ruled that the dismissal of the case "does not count as a “strike” for purposes of 28 U.S.C. § 1915(g)" the Prison Litigation Reform Act which limits pro se prison petitions to "three strikes." Later in the Term in Coleman-Bey v. Tollefson, the Court will be considering a construction of the three strikes limit; but perhaps Holt/Muhammad points to a larger issue with the limitation.
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.
The Ninth Circuit has issued its opinion in Latta v. Otter (and Sevick v. Sandoval) holding that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.
This is not surprising given yesterday's denial of certiorari by the United States Supreme Court to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings.
The unanimous opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of SmithKline Beecham Corp. v. Abbott Labs.
The court rejected the argument that the same-sex banning marriage laws survive heightened scrutiny because they promote child welfare by encouraging optimal parenting. In part, the court found that the means chosen to accomplish this goal was underinclusive:
If defendants really wished to ensure that as many children as possible had married parents, they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so. Such reforms might face constitutional difficulties of their own, but they would at least further the states’ asserted interest in solidifying marriage. Likewise, if Idaho and Nevada want to increase the percentage of children being raised by their two biological parents, they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption, by both opposite-sex and same-sex couples, as well as by single people. Neither state does.
The court found that the other interests were likewise inadequate to support the ban on same-sex marriage. In approximately 30 pages, the court affirmed the district court in Latta and reversed the district court in Sevcik.
Interestingly, there are two separate concurring opinions. Judge Reinhardt wrote a separate concurring opinion (to his own opinion), adding a fundamental rights analysis: "laws abridging fundamental rights are subject to strict scrutiny, and are invalid unless there is a “compelling state interest” which they are “narrowly tailored” to serve. Unsurprisingly, he found the same-sex statutes did not survive under this more rigorous standard.
Judge Berzon's separate concurring opinion added yet another justification for the ruling: the same-sex marriage bans are classifications on the basis of gender that do not survive the level of scrutiny applicable to such classifications.
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.
Wendy R. Weiser of the Brennan Center writes in The American Prospect that "[f]or the first time in decades, voters in nearly half the country will find it harder to cast a ballot in the upcoming elections." Weiser goes on to detail vote restrictions--and the court battles challenging them--in the run-up to the fall elections. Her conclusion:
These changes are the product of a concerted push to restrict voting by legislative majorities that swept into office in 2010. They represent a sharp reversal for a country whose historic trajectory has been to expand voting rights and make the process more convenient and accessible.
Weiser shows how these restrictions fall most heavily on racial minorities.
At the same time, Eric Garcia writes in The New Republic on the financial costs of voter ID. Garcia cites a report from Harvard Law School's Charles Hamilton Houston Institute for Race and Justice that puts the total cost of obtaining voter ID anywhere between $75 to $400 per person and the costs for states administering voter ID in the millions, even tens and scores of millions for larger states.
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
In Whole Woman's Health Center v. Lakey, the Fifth Circuit today issued a stay of the majority of the district judge's injunction against portions of Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis. A panel of the Fifth Circuit in March upheld the admitting privileges provision after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional.
This newest round of opinions consider the as-applied challenge to the admitting privileges provision combined with the the ambultory-surgical-center requirement.
In the stay opinion, authored by Judge Jennifer Elrod (pictured below) the majority states that there is some confusion concerning whether the district judge's opinion is actually limited to the as-applied challenge or whether it goes further.
The majority interjects some confusion of its own with its statement that the district judge was wrong to conclude that "the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them" because
In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.
The Fifth Circuit's majority opinion states that
the district court’s approach ratchets up rational basis review into a pseudo-strict-scrutiny approach by examining whether the law advances the State’s asserted purpose. Under our precedent, we have no authority by which to turn rational basis into strict scrutiny under the guise of the undue burden inquiry.
It is this point on which Judge Stephen Higginson, concurring in part and dissenting in part, disagrees. He states that he does not read the earlier HB 2 case, Abbott, "to preclude consideration of the relationship between the severity of the obstacle imposed and the weight of the State’s interest in determining if the burden is 'undue.'" And that consistent with the correct analysis, "the district court considered the weight of the State’s interest in its undue-burden review."
With one small exception - - -the district court’s injunction of the physical plant requirements of the ambulatory surgical provision remaining in force for El Paso - - - the Fifth Circuit stayed the district judge's injunction. While the court states that the merits panel is not bound by its determination, it will certainly be persuasive when the Fifth Circuit considers the next round in the saga of the constitutionality of HB2.
In an Order today, the United States Supreme Court granted certiorari in the closely-watched case of Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule prohibiting the personal solicitation of campaign contributions in a judicial election.
The Florida Supreme Court's per curiam opinion rejected the First Amendment challenge to Florida Code of Judicial Conduct, Canon 7C(1), which as the court notes, is substantially similar to Canons 4.1(A)(8) and 4.4 of the ABA Model Code of Judicial Conduct. The Florida Canon provides:
A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate's campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or members of the candidate's family.
The Florida Supreme Court held that the Canon satisfied strict scrutiny, finding that there were two compelling governmental interests (preserving the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary) and that the provision was narrowly tailored to serve these interests (the prohibition of direct fundraising nevertheless allows for the establishment of "campaign committees" to raise funds).
The Florida Supreme Court noted that "every state supreme court that has examined the constitutionality of comparable state judicial ethics canons" has upheld their constitutionality, citing opinions from the state supreme courts of Arkansas, Maine, and Oregon, opinions that the court discusses throughout its analysis. The Florida Supreme Court footnotes this statement in an interesting manner:
As to the federal courts that have considered this issue—whose judges have lifetime appointments and thus do not have to engage in fundraising—the federal courts are split. Several federal courts have held that laws similar to Canon 7C(1) are constitutional. See Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012); Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010); Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010); Stretton v. Disciplinary Bd. of S. Ct. of Pa., 944 F.2d 137 (3d Cir. 1991). Conversely, other federal courts have held that laws similar to Canon 7C(1) are unconstitutional. See Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010); Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).
[emphasis added]. Thus, the Florida Supreme Court declined to follow the Eleventh Circuit's finding that a similar judicial canon from Georgia, one of Florida's fellow-Eleventh Circuit states, was persuasive, observing that federal judges are not elected and seemingly implying that this may influence their reasoning.
Now that the United States Supreme Court has taken certiorari, however, it seems that the First Amendment issue will be resolved by Justices who are not elected. Interestingly, since retiring from the Court, former Justice O'Connor has criticized judicial elections as dangerous to a fair and impartial judiciary, but of course she will not be amongst those making the ultimate decision. Perhaps she will file an amicus brief?
The United States Supreme Court has granted certiorari in Reed v. Town of Gilbert, Arizona, regarding a First Amendment challenge to the town's regulation of outdoor signs.
The town requires a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.” The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.”
There were other exemptions for ideological signs and for political (campaign) signs with different requirements.
Reed and Good News Community Church challenged the town's temporary directional sign regulation as violating the First Amendment.
The Ninth Circuit upheld the regulatory scheme in a divided opinion, the second time the court had heard the controversy. The majority reiterated its earlier conclusion that the regulation was content-neutral: it "does not single out certain content for differential treatment, and in enforcing the provision an officer must merely note the content-neutral elements of who is speaking through the sign and whether and when an event is occurring."
It held that "Supreme Court Precedent" affirmed its "definition of content-neutral" and in so doing the Ninth Circuit's February 2013 opinion relied in large part on Hill v. Colorado (2000). The Ninth Circuit also relied on Hill's holding that the buffer zone at issue was constitutional and that "not all types of noncommercial speech need be treated the same;" this reliance may be less sturdy after the Court's decision last term in McCullen v. Coakley, in which the Court held a buffer zone unconstitutional.
In considering whether the differing restrictions between types of noncommercial speech in the various exemptions were “adequately justified without reference to the content of the regulated speech," the court concluded they were. Moreover, the court found that the town was entitled to deference in its choices as to size and duration of the signs.
Dissenting, Judge Paul Watford argues that the town's scheme is content-based and unconstitutional. Here's the gist of his reasoning:
The content-based distinctions [the town of ] Gilbert has drawn are impermissible unless it can identify some non-communicative aspect of the signs at issue to justify this differential treatment. Gilbert has merely offered, as support for the sign ordinance as a whole, its interest in enhancing traffic safety and aesthetics. Traffic safety and aesthetics are certainly important interests. But to sustain the distinctions it has drawn, Gilbert must explain why (for example) a 20-square-foot sign displayed indefinitely at a particular location poses an acceptable threat to traffic safety and aesthetics if it bears an ideological message, but would pose an unacceptable threat if the sign’s message instead invited people to attend Sunday church services.
Gilbert has not offered any such explanation, and I doubt it could come up with one if it tried. What we are left with, then, is Gilbert’s apparent determination that “ideological” and “political” speech is categorically more valuable, and therefore entitled to greater protection from regulation, than speech promoting events sponsored by non-profit organizations. That is precisely the value judgment that the First and Fourteenth Amendments forbid Gilbert to make.
Oral argument promises to be a lively one full of hypotheticals; it has not yet been scheduled.
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.