Constitutional Law Prof Blog

Ghost Guns at the Supreme Court

The Court will hear oral arguments tomorrow, Tuesday, in Garland v. VanDerStok, the case testing whether ghost-gun kits are regulable "firearms" under the Gun Control Act of 1968. Here's my argument Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

 

Case at a Glance

The Gun Control Act of 1968 requires any manufacturer or dealer of “firearms” to obtain a federal license, to maintain records related to the acquisition and transfer of firearms, and to conduct a background check before transferring a firearm to a non-licensee. The Act also requires importers and manufacturers to mark firearms with a serial number. The Bureau of Alcohol, Tobacco, Firearms and Explosives, which enforces the Gun Control Act, issued a rule that applies these requirements to manufacturers and dealers of kits that contain easy-to-assemble firearm components, but which are not (yet) operational firearms. 

INTRODUCTION

The lower courts ruled that the definitions of “firearm” and “frame or receiver” in the Gun Control Act did not encompass gun kits, and that the Bureau of Alcohol, Tobacco, Firearms and Explosives exceeded its authority under the Act in regulating the kits. The Supreme Court, however, allowed the regulation to go into effect pending appeal.

ISSUES

1. Is “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” a “firearm” under the Gun Control Act?

2. Is “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” a “frame or receiver” under the Act?

FACTS

The Gun Control Act of 1968 requires those who import, manufacture, or deal in “firearms” to obtain a federal license, to maintain records related to the acquisition and transfer of firearms, and to conduct a background check before transferring a firearm to a non-licensee. The Act also requires importers and manufacturers to mark firearms with a serial number.

The Act defines “firearm” as “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” 18 U.S.C. § 921(a)(3). Subsection (B), which covers “the frame or receiver of any such weapon,” ensures that these key structural components of a firearm are separately subject to the recordkeeping, back-ground check, and serial-number requirements in the Act, even if they are sold alone. The Act does not define the terms “frame” or “receiver,” however.

The Act authorizes the Attorney General to prescribe “such rules and regulations as are necessary to carry out” the Act. 18 U.S.C. § 926(a). The Attorney General, in turn, delegated this authority to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Soon after Congress adopted the Act, ATF’s predecessor agency promulgated a regulation that defined “frame or receiver” as “[t]hat part of a firearm which provides housing for the hammer, bolt or breech-block, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” 33 Fed. Reg. 18,555, 18,558 (Dec. 14, 1968). The regulation did not specify that this definition included separate components that, alone, were incomplete or non-functional. But through agency guidance, ATF has “long held” that components need not be complete or functional to qualify as a “frame or receiver” under the Act.

More recently, technological advances have allowed companies to sell easy-to-assemble firearm kits that contain separate unassembled firearm components. These kits, widely available online, allow purchasers to assemble a fully operational firearm within minutes. Some manufacturers claimed that these kits were not “firearms” under the Act and therefore sold them without complying with the Act’s requirements. These firearms, once assembled, are commonly called “ghost guns,” because they lack serial numbers and transfer records, and because individuals can purchase them without a background check.

In response to the proliferation of ghost guns, ATF promulgated a new rule that refined its definition of “firearm” under the Act in two key ways. First, the new rule defined “firearm” to “include a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.” 27 C.F.R. § 478.11. Second, the new rule also specified that “frame or receiver” under the Act includes “a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.” 27 C.F.R. § 478.12(c). (The new rule explicitly excluded components that “ha[d] not yet reached a stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon,” 27 C.F.R. § 478.12(c), so that it would not apply to components typically purchased in bulk by commercial firearms manufacturers.)

The rule does not prohibit the manufacture or sale of any firearm to any individual who is lawfully entitled to possess it. It also does not prohibit a person from making their own firearm for their own personal use, and it does not require such a person to mark their home-made firearm with a serial number. Rather, the rule simply requires manufacturers and sellers of firearm parts kits to obtain licenses, mark their products with serial numbers, maintain transfer records, and conduct background checks. These are the same conditions that apply to the commercial sale of fully functional firearms.

A group of plaintiffs sued, arguing that weapon parts kits did not fall within the Act’s definition of “firearm” or “frame or receiver” and that ATF’s new rule therefore violated the Act. The district court ruled that the two provisions of the rule violated the Act but vacated the entire rule, including other portions of the rule that the plaintiffs did not challenge. The United States Court of Appeals for the Fifth Circuit stayed the district court’s vacatur as to the unchallenged portions of the rule pending appeal. The Supreme Court stayed the district court judgment in its entirety.

The district court then granted two plaintiffs and their customers an injunction pending appeal. The Fifth Circuit narrowed the injunction, but the Court then vacated the injunction in its entirety.

On the merits, the United States Court of Appeals for the Fifth Circuit ruled that the two provisions of the rule violated the Act. This appeal followed.

CASE ANALYSIS

The government starts by arguing that the rule’s first provision is consistent with the Act’s definition of “firearm.” The government says that the Act defines “firearm” broadly, and that the rule closely tracks the statutory language. It claims that the rule’s terms “completed,” “assembled,” and “restored” easily fit within the Act’s term “converted.” And it contends that the rule’s definition of “readily” “is consistent with both ordinary meaning and relevant precedent.”

The government argues next that the second provision “correctly clarifies” that the Act’s terms “frame[s]” and “receiver[s]” encompass “partially complete, disassembled, or nonfunctional” frames and receivers that “may readily be completed, assembled, restored, or otherwise converted to function” as frames or receivers. The government points out that the Act lacks any language that requires a frame or receiver to be “complete, operable, or functional,” and that the plain language of the Act therefore includes partially complete components as defined by the rule.

Finally, the government argues that “[t]he Fifth Circuit’s interpretation would . . . frustrate the Act’s manifest design by transforming its central definition into an invitation to evasion” of the Act by selling firearm kits rather than complete and functional firearms. The government says that the Fifth Circuit’s ruling would “recreate” the same problem that Congress sought originally to address in the Act: allowing “felons, juveniles, and those seeking guns for criminal purposes” to acquire them easily. The government claims that the Court “has declined to presume that Congress adopted such self-defeating legislation” in other cases under the Act, and that it should reject that interpretation here, too.

The plaintiffs counter that the Act’s definition of “firearm” includes only any “weapon” that may be readily converted to a firearm, not any item that may be converted. Because a parts kit is not itself a “weapon,” the plaintiffs contend that a parts kit is not a “firearm” under the Act, even if it is readily converted to a firearm. Moreover, the plaintiffs say that the Act only encompasses firearms that have a “frame or receiver.” But they assert that a kit that is regulated solely by the firearm-parts-kit provision of the rule will not have a “frame or receiver,” and therefore does not fall within the Act’s definition of a “firearm.”

The plaintiffs argue next that in contrast to the Act’s reference to “firearm” (which includes a weapon that may be readily converted into a firearm), the Act’s reference to “frame or receiver” does not include an item that may be readily converted into a “frame or receiver.” The plaintiffs contend that the rule, which regulates items that may be readily converted into a “frame or receiver,” exceeds the plain language of the Act.

Finally, the plaintiffs assert that the rule is invalid for other reasons. They say that the rule’s use of the word “readily” is unconstitutionally vague, and, because the Act is a criminal statute, the Court should interpret “readily” “against the Government (and against the Rule).” Moreover, they contend that the rule does not serve the government’s interest, because “kits targeted by the Rule are favored by hobbyists, while the vast majority of criminals prefer to get firearms that have been professionally manufactured.” They say that if the government seeks to regulate firearms kits, it must get specific statutory authority from Congress.

SIGNIFICANCE

ATF issued its rule in response to a proliferation of ghost guns, their use in crimes, and the Bureau’s inability to trace them in recent years. According to the government, in 2017, law enforcement agencies asked ATF to trace about 1,600 ghost guns. By 2021, they asked ATF to trace more than 19,000. Of the 45,240 firearms submitted to ATF without a serial number between 2016 and 2021, “ATF was able to complete only 445 traces to individual purchasers—a success rate of less than one percent.” The government claims that the rule would help ATF regulate and track ghost guns and, presumably, reduce their use in crimes. It says that the approach of the plaintiffs and the lower courts would allow individuals to sidestep the Gun Control Act’s “careful regulatory scheme” by allowing them “to anonymously buy a kit online and assemble a fully functional gun in minutes—no background check, records, or serial number required.”

The plaintiffs challenge the government’s claim that ATF’s rule would serve the government’s interests. They say that ghost guns “are favored by hobbyists,” and that “the vast majority of criminals prefer to get firearms that have been professionally manufactured.” The plaintiffs also assert that the government’s interpretation of the Gun Control Act—in particular, its reading of “frame or receiver” to include items that may be readily converted into a frame or receiver—could impact the regulation of other firearms, including the popular AK-47.

Just last Term, the Court addressed a similar case on the scope of ATF’s regulatory authority. Garland v. Cargill (Docket No. 22-976) involved a challenge to ATF’s authority to regulate a bump stock as a “machinegun” under the National Firearms Act of 1834. The Court ruled that a bump stock did not fit the definition of a “machinegun,” and that ATF therefore exceeded its authority in regulating bump stocks.

But that case does not necessarily foretell the result here. For one, the statutory language and challenged regulation are very different in the two cases. Even if the Court adopts a narrow interpretation of the statutory language in this case (as it did in Cargill), there’s still plenty of room for the Court to uphold ATF’s rule regulating ghost guns. Moreover, the Court already vacated the lower courts’ rulings pending appeal. While these vacaturs were preliminary, the Court’s actions may nevertheless predict its ruling on the merits.

One final point. Because the case is statutory, Congress can have the last word. Whatever the Court rules in this case, Congress can amend the Gun Control Act to encompass ghost guns, or not.

SCOTUS Argument Preview: Does a Plaintiff Have to Exhaust State Administrative Remedies Before Filing a 1983 Claim in State Court?

The Court will hear oral arguments tomorrow, Monday, in Williams v. Washington, a case testing whether a plaintiff must exhaust state administrative remedies in order to bring a state-court lawsuit under federal civil-rights law. Here's my preview of the case, from the ABA Preview of United States Supreme Court Cases, with permission:

Case at a Glance

Several plaintiffs sued the Alabama Secretary of Labor to force the state Department of Labor to act promptly on their claims for unemployment compensation. The plaintiffs sued in state court under 42 U.S.C. § 1983, a federal statute that authorizes plaintiffs to sue a person acting under color of state law for violations of the U.S. Constitution or federal law. The Alabama Supreme Court dismissed the case on the ground that the plaintiffs failed to appeal their claim through the Department’s administrative process before they sued in state court, as required by state law. 

INTRODUCTION

Alabama law requires a plaintiff to appeal a denial of unemployment compensation through an administrative appeal process in the Department of Labor before they appeal to state court. At the same time, the Supreme Court has held that plaintiffs need not exhaust state administrative remedies before suing in federal court pursuant to Section 1983. This case tests whether and how that Court ruling applies to the plaintiffs’ state court case.

ISSUE

Does Section 1983 preempt Alabama’s requirement that a person exhaust the administrative appeal process before suing in state court?

FACTS

In the wake of a spike in unemployment compensation claims due to COVID-19, a group of Alabama residents sued the state Secretary of Labor, Fitzgerald Washington, in state court for failing to act timely on their unemployment compensation applications. The plaintiffs alleged that the state Department of Labor took months to make initial determinations on their claims for benefits, and that some plaintiffs never received these determinations. They also claimed that the Department stopped or denied benefits for a period without sufficient notice to the plaintiffs. And they alleged that the Department failed to schedule hearings to appeal adverse determinations.

The plaintiffs sued under the bread-and-butter federal civil rights law, 42 U.S.C. § 1983. Section 1983 authorizes plaintiffs to sue officers acting under color of state law for violations of their federal constitutional or federal statutory rights. In this case, the plaintiffs alleged that the Department violated their due process rights and the federal Social Security Act. The plaintiffs asked the court to direct the Department to make decisions promptly on all applications for unemployment compensation, and to notify claimants who requested a hearing and to schedule those hearings within 90 days of the request.

The Secretary moved to dismiss the case. The Secretary argued, among other things, that the court lacked jurisdiction because the plaintiffs failed to exhaust their unemployment-compensation administrative appeal process required under state law. Under this process, an applicant for unemployment compensation must appeal an initial denial to an administrative tribunal comprised of Department officers. Only then can an applicant appeal to state court. In other words, state law requires an applicant to exhaust this administrative-appeal process before they appeal to state court. The Secretary argued that the plaintiffs in this case bypassed the administrative appeal process, and that the state court therefore lacked jurisdiction over their claims.

The state circuit court granted the Secretary’s motion to dismiss, but did not specify the grounds for dismissal. The Alabama Supreme Court affirmed the dismissal on the sole ground that the plaintiffs failed to exhaust their state administrative remedies before bringing their lawsuit in state court. This appeal followed.

CASE ANALYSIS

The case asks whether the plaintiffs must exhaust state administrative remedies, as required by state law, before they can file their Section 1983 claims in state court. Stated only slightly differently, the case asks whether Section 1983 preempts the state-law exhaustion requirement, so that the plaintiffs need not exhaust state administrative remedies before filing their Section 1983 claims in state court.

The Court touched on the issue over thirty years ago, in Patsy v. Board of Regents of the State of Florida. 457 U.S. 496 (1992). The Court in Patsy ruled that “exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983.” But the plaintiffs in Patsy filed their case in federal court, not state court, and the Court did not specifically address whether plaintiffs must satisfy a state exhaustion requirement that goes to the state court’s jurisdiction.

The parties wrangle over whether and how Patsy applies to this case, and whether Section 1983 preempts Alabama’s exhaustion requirement.

The plaintiffs argue that Patsy resolves this case. They claim that while Patsy involved a federal-court lawsuit, its reasoning applies equally to state-court lawsuits. They say that the Court confirmed this in Felder v. Casey, 487 U.S. 131 (1988), where the Court ruled that Section 1983 claims preempt state-law exhaustion requirements. In particular, the plaintiffs point to language in Felder that says that a state exhaustion requirement would force plaintiffs “to seek redress in the first instance from the very state officials whose hostility to those rights precipitated their injuries,” and that it would “produce different outcomes in federal civil rights litigation based solely on whether that litigation takes place in state or federal court.” The plaintiffs assert that their Section 1983 lawsuit preempted Alabama’s exhaustion for these same reasons.

The plaintiffs go on to argue that the Alabama Supreme Court erred in ruling otherwise. The plaintiffs say that the state high court was wrong to distinguish between state-court lawsuits and federal-court lawsuits, because Patsy and Felder already held that Section 1983 preempts state exhaustion requirements in both forums. They contend that the court was also wrong to characterize the state’s exhaustion requirement as “jurisdictional,” because this label alone cannot overcome the preemptive effect of Section 1983. In addition, the plaintiffs assert that the court wrongly interpreted and invoked other Court precedent.

Finally, the plaintiffs argue that the Court should adopt a categorical rule that plaintiffs need not exhaust state administrative remedies before bringing a Section 1983 case in state court, unless Congress explicitly imposed an exhaustion requirement. But even if the Court declines to adopt a categorical rule, the plaintiffs contend that they should still prevail on the strength of their particular case. According to the plaintiffs, that’s because any administrative exhaustion requirement would undermine the very point of their Section 1983 case—that Alabama’s administrative process itself is broken.

The Secretary counters first that Section 1983 does not expressly preempt the state requirement that plaintiffs exhaust administrative remedies. If anything, he says, Section 1983 contemplates a role for administrative processes in protecting against constitutional and statutory violations, by creating liability “in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983 (emphasis added). Relatedly, the Secretary also contends that Section 1983 does “not occup[y] the entire field of rules regarding the structure and jurisdiction of state courts,” and therefore does not preempt state administrative processes under a “field” theory. And he says that the state exhaustion requirement does not conflict with Section 1983, because the state requirement “serves to facilitate a public-benefit program and does not defeat liability or single out civil-rights claims.”

Moreover, the Secretary contends that Court precedent supports his preemption arguments. The Secretary asserts that under Court precedent, states may regulate their courts through neutral rules, and that Alabama’s exhaustion requirement is just such a neutral rule. He also claims that the state’s exhaustion requirement is “jurisdictional,” meaning that it goes to the jurisdiction of the state courts, and is not “an outcome-determinative procedural rule or . . . defense on the merits.” The Secretary asserts that “[t]his Court has never applied § 1983 to preempt this sort of standard jurisdictional rule.” The Secretary contends that forcing Alabama state courts to adjudicate claims that are not within their jurisdiction would intrude on a core aspect of state sovereignty and “raise[] grave constitutional problems.”

Finally, the Secretary argues that Patsy and Felder do not support a categorical rule that Section 1983 preempts all state-law exhaustion requirements. He claims that Patsy was not a preemption case at all, and that it only held that courts cannot impose an exhaustion requirement. And he says that Felder involved “a discriminatory and outcome-determinative rule designed to minimize state liability,” not a neutral exhaustion requirement, like Alabama’s. 

SIGNIFICANCE

A Court ruling for the Secretary would require the plaintiffs in this case to exhaust their administrative appeals before filing their Section 1983 claims in state court. But as the plaintiffs point out in their opening brief, such a ruling would be especially paradoxical, given that the plaintiffs are challenging long delays, and even non-decisions, in that very process. In other words, a ruling for the Secretary could leave some of the plaintiffs in limbo until the Department starts moving claims.

Moreover, a ruling for the Secretary could affect the thousands of other Section 1983 claimants around the country by incentivizing states to impose exhaustion requirements and requiring other Section 1983 claimants similarly to satisfy exhaustion requirements before filing their claims in state courts. As the plaintiffs argue, this would undermine the purpose of Section 1983, to hold state officers to account for statutory and constitutional violations without undue delays or impediments imposed by the states.

On the other hand, the Secretary contends that the issue “has little practical significance.” Moreover, the Secretary says that a Court ruling for the plaintiffs could impermissibly intrude on state sovereignty by eviscerating the state’s exhaustion requirement, which, according to the Secretary, is a neutral jurisdictional requirement for state courts.

Finally, the case will resolve a lopsided split in the state high courts. State courts of final resort in Alaska, California, Colorado, Connecticut, the District of Columbia, Iowa, Kansas, Montana, Nevada, Ohio, Wisconsin, and Wyoming have all held that a plaintiff need not exhaust state administrative appeals before filing a Section 1983 claim in state court. Before the Alabama Supreme Court ruled, only the Supreme Court of South Dakota held that Section 1983 plaintiffs must comply with state exhaustion requirements.

Ninth Circuit Says Police Chief's Private Texts Aren't Protected Speech

The Ninth Circuit today rejected a First Amendment retaliation claim by a police chief who was forced to resign after sending private texts with a forwarded racist image. The court examined the language, form, and context of the texts and concluded that they did not constitute a matter of public concern under Pickering v. Board of Education.

The case, Adams v. County of Sacramento, arose when Kate Adams, who worked in the Sacramento County Sheriff's Office, sent private texts to colleagues that included forwarded racist pics. (Adams's texts seem to suggest that she disapproved of the forwarded pics.) Years later--after Adams was appointed as City of Rancho Cordova Police Chief and after the texts came out in the course of an EEO investigation involving one of the recipients--a county attorney told her that she'd have to resign or face an investigation that would fuel a "media circus" over the texts. Adams resigned, then sued, arguing that her forced resignation violated the First Amendment, among other things.

The Ninth Circuit ruled that Adams's speech wasn't protected public-employee speech under Pickering, and that she therefore had no First Amendment claim against her forced resignation. The court looked at the language, form, and context of the texts to concluded that they did not constitute a matter of public concern.

Judge Callahan dissented, arguing that this was an unusual case in that "Adams's speech occurred outside of work, was totally unrelated to her job, and should not have had any impact on her employment," and that "Adams should have the chance to hold the County accountable for its harsh reaction to her speech . . . ."

District Court Rejects Trump Bid to Remove Hush Money Case to Federal Court

Judge Alvin K. Hellerstein (S.D.N.Y.) earlier this week rejected Donald Trump's motion to remove his New York state hush-money case to federal court. Trump filed a notice of appeal last night.

This latest episode arose when Trump filed his second motion to remove last week, arguing that the New York courts were biased against him and that he's immune under Trump v. United States.

The court rejected both arguments. As to bias, the court said that it lacked jurisdiction under the Rooker-Feldman doctrine, which generally bars lower federal courts from reviewing state court decisions. As to immunity, the court wrote, "Nothing in the Supreme Court's opinion affects my previous conclusion that the hush money payments were private, unofficial acts, outside the bounds of executive authority."

Trump appealed to the Second Circuit. But unless something weird happens, he'll lose, and his state case will proceed.

As to his state case, sentencing is scheduled for September 18. Trump moved to push it back, however, and also moved to dismiss the case in light of Trump v. United States. Judge Merchan, the state trial judge, said that he'd rule on Trump's immunity motion by September 16. If he denies the motion, as expected, and keeps the sentencing date in place, Trump will be sentenced on September 18. He can then appeal through the state courts and, ultimately, the U.S. Supreme Court, claiming immunity.

Ninth Circuit Upholds Title IX's Exemption for Religious Institutions Against Establishment Clause, Equal Protection Challenges

The Ninth Circuit ruled that Title IX's exemption for religious organizations from its prohibition on sex discrimination did not violate the Establishment Clause or equal protection. The court also dismissed the plaintiffs' Administrative Procedure Act claim for lack of standing.

The case, Hunter v. U.S. Department of Education, arose when LGBTQ+ students alleged that religious schools discriminated against them on the basis of their gender identity, and that Title IX's exemption for religious institutions allowed that discrimination in violation of the Establishment Clause and equal protection.

The Ninth Circuit disagreed. The court applied the history-and-tradition test for the Establishment Clause from Kennedy v. Bremerton School District and ruled that there's a long history of accommodating religion, even if that history doesn't include accommodations from government benefit programs exactly like Title IX:

[These cases] evidence a continuous, century-long practice of governmental accommodations for religion that the Supreme Court and our court have repeatedly accepted as consistent with the Establishment Clause. The examples provided by the Department demonstrate that religious exemptions have "withstood the critical scrutiny of time and political change." And given that this exact law did not exist at the Founding, that more recent (albeit, still lengthy) tradition is of greater salience.

As to the equal protection claim, the court said that Title IX's exemption meets intermediate scrutiny, and therefore doesn't violate equal protection:

The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion. As the Department states, the "statutory limitations on its application ensure a substantial fit between [ends and] means." It only exempts educational institutions (a) controlled by religious institutions and (b) only to the extent that a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organizations. The exemption does not give a free pass to discriminate on the basis of sex to every institution; it contains limits that ensure that Title IX is not enforced only where it would create a direct conflict with a religious institution's exercise of religion. Thus, the exemption substantially relates to a "fundamentally important" government interest.

Court Expands Presidential Immunity, Remands January 6 Case Against Trump

The Supreme Court ruled today that a former president enjoys certain immunity--and as a practical matter probably near total immunity--from federal criminal prosecution for actions taken while in office. The sweeping ruling remands the immunity issue back to the district court in former President Trump's criminal case based his efforts to overturn the results of the 2020 presidential election. That means that the prosecution and former President Trump will have to re-litigate the immunity issue at the district court, and re-appeal the ruling to the appellate court and Supreme Court, before the criminal case can move forward.

Under the Court's ruling today, the immunity question could take many months or even years to re-work through the courts. This means that former President Trump won't go to trial in the January 6 criminal case before the 2024 election, if ever.

I say "if ever" for three reasons. First, if former President Trump is elected, he could order the Justice Department to drop the case. Next, former President Trump will undoubtedly find other ways to challenge the prosecution, yet further dragging things out. (Justice Thomas recommends one in today's ruling; see below.) Finally, it's not at all clear that today's ruling leaves any presidential action, as a practical matter, outside the scope of the immunity that the Court created. In other words, the Court's ruling may--again, as a practical matter--provide a president with complete immunity, or all-but-complete immunity, from federal criminal prosecution for actions taken while in office.

The Court held that a former president's immunity from federal criminal prosecution falls into three buckets. First, a former president is absolutely immunity for actions taken within the presidents "core constitutional powers"--those inherent and exclusive Article II powers that belong to the president alone. According to the Court, these include "for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States."

Next, a former president is presumptively immune for actions taken within "the outer perimeter of his official responsibility." According to the Court, "[s]uch an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution." Because this immunity is presumptive, the prosecution can overcome it, but with a very high bar: "At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would post no 'dangers of intrusion on the authority and functions of the Executive Branch.'"

Finally, a former president enjoys no immunity for unofficial acts.

All this may sound like a former president could be prosecuted for acts outside the outer perimeter of their official responsibilities and for unofficial acts. But there are a couple kickers. For one, "[i]n dividing official from unofficial conduct, courts may not inquire into the President's motives." This means that a president's malign motives couldn't convert an official act into an unofficial one. In other words, a president would enjoy immunity after leaving office for official acts, even if the president conducted those official acts for purely non-official reasons (like partisan political retribution, purely personal financial gain, and the like). More cynically, a crafty president could simply cloak their illegal acts in behavior that looked like official action and, voila, gain immunity. Next, courts may not "deem an action unofficial merely because it allegedly violates a generally applicable law." Finally, courts may not use "evidence about" a former president's "immune conduct" in the former president's criminal case, "even when an indictment alleges only unofficial conduct . . . ." This could seriously hamstring a prosecutor when, as would often be the case, they must use a former president's official conduct to prove a criminal case involving purely unofficial conduct.

Taken together, it's not at all clear that, as a practical matter, this doesn't amount to near total immunity for a former president. At the very least, it sets out a clear-as-day roadmap for any president to immunize themselves from future criminal prosecution for nearly any criminal behavior that they may wish to take while in office.

The Court held that former President Trump's use of the Justice Department, including his threat to remove the acting attorney general, fell within the first bucket, inherent and exclusive Article II authority, and that he was "therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials."

Next, it remanded several allegations in the indictment back to the district court for a determination whether they were "official" acts. These include former President Trump's attempts to persuade the vice president to alter the election results; his efforts to enlist the help of state officials, private parties, and the general public in overturning the results; and his communications leading to and on January 6.

Justice Thomas concurred, and wrote to argue an entirely separate issue--that the office of special counsel itself may be unconstitutional, and that the special counsel may therefore lack authority to bring these charges in the first place. That issue wasn't argued or briefed in the case, but it is the subject of a pending motion in the district court in former President Trump's federal criminal case in Florida (the one involving illegal retention of government documents).

Justice Barrett concurred, arguing that some of the allegations in the indictment cover clearly unofficial conduct, for example, former President Trump's efforts to persuade state lawmakers to investigate alleged election fraud. She also declined to join the portion of the Court's opinion saying that courts can't use protected conduct as evidence in a criminal prosecution, even for unofficial conduct.

Justice Sotomayor wrote a lengthy and scathing dissent, joined by Justices Kagan and Jackson. She argued that the Court's ruling effectively places the president above the law, counter to the text, history, and tradition, and provided vivid and chilling examples:

When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. Orders the Navy's Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

This sounds dramatic. But it's very hard to see how the majority's reasoning doesn't lead to these results.

Justice Jackson also wrote a dissent, but just for herself. She argued that the Court's ruling effected a sea change in the criminal paradigm, effectively giving a single person, the president, a get-out-of-criminal-charges-free card, and in that way undermining our system of rule of law.

SCOTUS Says Docs, Orgs Lack Standing to Challenge Mifepristone

The Supreme Court ruled today in FDA v. Alliance for Hippocratic Medicine that doctors and organizations lack standing to challenge FDA's relaxation of regulations on the use of Mifeprex, the brand-name for mifepristone--the second of a two-drug regime to end pregnancies. The ruling means that mifepristone can stay on the market, along with the FDA's actions that make it more easily accessible.

FDA originally approved Mifeprex in 2000, with certain restrictions on its use. FDA relaxed those restrictions in 2016 and again in 2021--allowing the drug's use up to 10 weeks of pregnancy, allowing healthcare providers other than doctors to prescribe it, requiring just one in-person visit, and, in 2021, dropping the in-person visit requirement entirely.

A group of pro-life doctors and organizations sued FDA, arguing that the Agency improperly approved the drug and relaxed the standards for its use. As their basis for standing, the doctors claimed that FDA's actions would cause patients to suffer harms from using the drug, and that the doctors would have to treat them. The organizations said that they had to divert resources to provide their members with safety information about the drug.

The Court ruled today that those plaintiffs lacked standing. The Court said that the doctors lacked standing on the groud that FDA's actions caused conscience injuries to them. The Court noted that doctors could avoid "conscience injuries" by declining "to perform or assist" an abortion under federal conscience laws. It wrote that the doctors lacked standing on the ground that the doctors would have to divert their time and efforts with other patients in order to serve patients who suffered harm from mifepristone, because the causal link between FDA's actions and this "harm" was too attenuated. The court said that the organizations lacked standing in their own right on the ground that they had to divert resources, because "an organization that has not suffered a concrete injury caused by a defendant's action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant's action."

The ruling was unanimous. Justice Thomas wrote a concurrence, arguing that the Court should "explain just how the Constitution permits associational standing" at all, but in a different, appropriate case.

SCOTUS Weighs Trump Immunity

The Supreme Court will take up former President Trump's claim of absolute immunity from criminal prosecution for his acts on and around January 6. Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

ISSUE

Is former President Trump immune from criminal prosecution for his allegedly official acts while in office?

FACTS

A federal grand jury indicted former President Donald J. Trump for conspiring to “overturn the legitimate results of the 2020 presidential election.” The indictment charged Trump with “using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.”

The indictment alleges Trump sought to overturn the election using five means: (1) deceiving state officials to subvert the legitimate election results in their states; (2) using deceit to organize fraudulent slates of presidential electors in seven states and causing those electors to send false certifications to Congress; (3) leveraging the Department of Justice to deceitfully urge state election officials to replace their legitimate slate of presidential electors with electors who would vote for Trump; (4) attempting to enlist the Vice President to fraudulently alter the results of the election during Congress’s certification proceeding on January 6, 2021, and directing Trump supporters to the Capitol to obstruct those proceedings; and (5) exploiting the ensuing violence and chaos at the Capitol on January 6.

In particular, the indictment charges Trump with conspiring to defraud the United States, in violation of 18 U.S.C. § 371; corruptly obstructing the certification of the presidential election results on January 6, 2021, in violation of 18 U.S.C. § 1512(c)(2); and conspiring to violate the constitutional right to vote of one or more persons, in violation of 18 U.S.C. § 241.

Trump moved to dismiss the indictment on the ground that he enjoys absolute immunity from criminal prosecution for acts taken within the “outer perimeter” of his official responsibilities as President. The district court denied Trump’s motion, and the D.C. Circuit affirmed. This appeal followed.

CASE ANALYSIS

In sorting out the novel question in this case, we can look to a handful of authorities for guidance. For example, the Court in Nixon v. Fitzgerald ruled that a President enjoys absolute immunity from civil damages for acts within the “outer perimeter” of their duties of office. 457 U.S. 731 (1982). The Court said that absolute immunity would ensure that the threat of civil suits would not “distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”

At the same time, the Department of Justice has long held the position that a sitting President enjoys absolute immunity from criminal prosecution while in office. In a 2000 memo, the Department wrote that “indicting and prosecuting a sitting President would ‘prevent the executive from accomplishing its constitutional functions,’ and that this impact cannot ‘be justified by an overriding need’ to promote countervailing and legitimate government objectives.”

Most recently, in 2020, in Trump v. Vance, 140 S. Ct. 2412, the Court rejected then-President Trump’s claim that a sitting President was absolutely immune from state criminal processes short of indictment and prosecution (in that case, a state prosecutor’s subpoena to a third party for the President’s personal papers). The Court wrote that the President failed to demonstrate any especial need for immunity (or even a heightened-need standard for the prosecutor) to fulfill his Article II duties, and that “the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence.”

But despite these authorities, the Court has never addressed whether a former President enjoys absolute immunity from criminal liability for acts within the “outer perimeter” of their duties of office. That’s what this case is all about.

Trump argues first that “courts cannot sit in judgment directly over the President’s official acts, whether before or after he leaves office.” He says this has been the consistent understanding since 1803 in Marbury v. Madison, 5 U.S. 137. Trump quotes language in Marbury, saying that in matters where the President exercises discretion, the President’s “acts are only politically examinable.” As a result, Trump says the President’s official acts “can never be examinable by the courts.” He also points to the President’s absolute immunity from civil liability for official acts in Fitzgerald and claims that even more so “the courts cannot sit in criminal judgment over him and imprison him based on official acts.”

Trump contends that the Impeachment Judgment Clause reinforces this conclusion. He claims that the Clause, by acknowledging that an impeached President “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law,” allows the President to be prosecuted only after impeachment (including impeachment in the House and conviction in the Senate). He claims that the Clause thus “reflects the Founders’ understanding” and operates as “a formidable structural check against politically motivated prosecutions by requiring a majority of the House and a supermajority of the Senate to authorize such dramatic action.”

Trump also contends that “[t]he long history of not prosecuting Presidents for official acts, despite ample motive and opportunity to do so over the years,” is also consistent with his conclusion. Moreover, he claims that a lack of immunity and the resulting threat of prosecution after leaving office would deter currently serving Presidents from making the kind of “bold and unhesitating” decisions that Presidents must make. “That bleak scenario would result in a weak and hollow President, and would thus be ruinous for the American political system as a whole.”

Trump argues next that, under separation-of-powers principles, the President is not subject to “generally applicable criminal laws” unless Congress specifically said so. Trump claims that this flows from the President’s unique place in our constitutional structure and Court precedent that holds that other, non-criminal law does not apply to the President unless the law contains a clear statement applying it to the President. Trump asserts that none of the criminal laws in his indictment specifically apply to the President; therefore, they don’t apply to his actions as President; and therefore, he cannot be prosecuted for violating them.

Finally, Trump argues that the Court should dismiss the indictment. But if it doesn’t, he says that “the Court should be guided by four considerations.” First, Trump claims that “the scope of immunity should extend to the ‘outer perimeter of a President’s official acts,’ and its protection should be absolute, not qualified.” Next, he asserts that the Court should remand the case for any “fact-based application” “if the Court determines that immunity exists but requires fact-based application.” Third, “if the Court adopts a form of qualified immunity, which it should not do,” the Court should apply that immunity to the “extraordinarily, and almost completely, broad” range of the President’s official duties in a way that would immunize a former President for all but the most obvious violations of law. Finally, “the Court should reject the D.C. Circuit’s alternative approach of denying a President criminal immunity when his conduct is allegedly motivated by the desire to remain in power unlawfully.” Trump says that this approach “risks creating the appearance of a gerrymandered ruling tailored to deprive only . . . Trump of immunity, while leaving all other Presidents untouched.”

The government counters that the President is subject to federal criminal law, just like everybody else, unless a President’s power under Article II “precludes the application” of that law. The government says that “[n]o presidential power at issue in this case entitles the President to claim immunity from the general federal criminal prohibitions supporting the charges.” Moreover, the government contends that “[t]he President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.”

The government argues that “[h]istory likewise refutes [Trump’s] claim.” It says that “[t]he Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts.” According to the government, that’s why President Richard M. Nixon accepted President Gerald R. Ford’s pardon: Nixon’s “acceptance . . . implied his and President Ford’s recognition that a former President was subject to prosecution.”

The government argues that a President’s immunity from civil liability in Fitzgerald doesn’t support Trump’s claim of immunity from criminal liability. It claims that Trump’s case “involves the far weightier interest in vindicating federal criminal law in a prosecution brought by the Executive Branch itself.” And it contends that unlike Fitzgerald’s concern “that a multiplicity of private civil actions would chill a President’s decisions, the same concerns are not present in the criminal context.” According to the government, that’s because the criminal system contains multiple “institutional checks to ensure evenhanded and impartial enforcement of the law.” (The government points to the fact that the government itself must bring a criminal charge, “a grand jury must find that an indictment is justified,” the government must meet a high burden of proof, and “due process protections . . . guard against politically motivated prosecutions.”)

The government asserts that Trump’s claim that federal criminal law does not apply against the President unless it specifically says so is “radical” and “unfounded.” According to the government, Trump’s position “would free the President from virtually all criminal law—even crimes such as bribery, murder, treason, and sedition.” Moreover, the government says that other “safeguards” in the criminal system adequately “protect legitimate presidential interests” and other constitutional values.

The government also asserts that Trump is wrong to claim that the President can only be prosecuted after impeachment. The government says that the plain text of the Impeachment Judgment Clause, its structure, and its history all “contradict [Trump’s] assertion that [it] makes Senate conviction a condition precedent to prosecution.” And it contends that the Clause “expressly recognizes that former Presidents are subject to federal criminal prosecution”—a point Trump acknowledges—and therefore undermines Trump’s sweeping claim of absolute immunity. The government says that impeachment, as a political process, is very different than criminal prosecution, which is “based on facts and law, and is rigorously adjudicated in court.” “Adopting [Trump’s] position would thwart the ordinary application of criminal law simply because Congress, in administering the political process of impeachment, did not see fit to impeach or convict.”

The government also contends that Trump is wrong to argue that courts can’t review a President’s discretionary acts. The government says that the cases Trump relies upon relate to a sitting President, and therefore have “no application to criminal prosecution of a former President.” Moreover, it claims that the absence of prosecutions of former Presidents “does not reflect the understanding that Presidents are immune from criminal liability; it instead underscores the unprecedented nature of [Trump’s] alleged conduct.” The government asserts that Trump’s claims about common-law immunities “fare[] no better.” “The established rule for judges and prosecutors—that they may claim civil immunity for official acts but lack any corresponding criminal immunity—applies equally to former Presidents. By contrast, neither constitutional text nor historical practice supports applying anything akin to legislative immunity to Presidents.”

Finally, the government argues that even if the Court extends some form of immunity to former Presidents, that immunity “does not preclude trial on this indictment.” The government says that Trump’s alleged conduct—an attempt “to subvert an election”—“does not justify any form immunity.” Moreover, it claims that Trump’s private conduct (that is, alleged conduct that is not part of the President’s official acts) “is sufficient to support the charges,” even without considering his official acts. The government argues that the Court should therefore remand the case for trial, “with the district court to make evidentiary and instructional rulings in accordance with this Court’s decision.” Trump “could seek appellate review of those rulings, if necessary, following final judgment.”

SIGNIFICANCE

This case raises one of the most important issues in our constitutional system: presidential accountability. The case raises the issue on two levels. First, and most obviously, the case asks whether the President can be held to account in our criminal system based on allegedly official acts while in office. On this level, the case tests a core commitment in a system of rule of law, the principle that no person is above the law. To get a small taste of why that’s important, consider just this one scenario: Trump’s counsel in the D.C. Circuit conceded that under Trump’s theory Trump would enjoy immunity even if, as President, he ordered SEAL Team 6 to assassinate a political rival, unless Congress impeached him first. (And by the way, it’s easy to see how a President could evade this check. For example, if Congress can’t impeach a former President—a position held by many in Trump’s second impeachment—a President could simply commit a crime, and immediately resign.)

Second, the case asks whether the President can be held to account through our electoral system. After all, if a President were successful in thwarting the results of an election, and if he enjoyed immunity from criminal prosecution for his efforts (as Trump claims here), he could remain in office indefinitely, despite his electoral loss.

For these reasons, this case is one of the most important cases on the structure of our government that the Court has seen in decades, and maybe ever. Here’s how 15 leading historians of the Founding era put it in their amicus brief:

The allegations against former President Trump go to the heart of the Founders’ concerns about executive power. The Framers specifically contemplated that a President might conspire with others to remain in power after the end of his term. This fear compelled them to carefully construct checks on presidential power. . . .

The crime alleged here, a failure to respect the election of a new President, is the ultimate crime against the people, who are the basis of government.

And just to be clear: Trump’s legal claim of absolute immunity is novel and unprecedented; no other former President has made this claim in court. Trump says that’s because his prosecution is unprecedented, reflecting the fact that it’s unfounded. The government says that’s because no other President committed such patently illegal acts. In any event, the unprecedented nature of Trump’s claim may be why the lower courts so roundly rejected them.

But the Court didn’t follow suit, at least not as directly as it might have, and at least not yet. The government initially sought Court review back in December 2023, “cert. before judgment,” before the D.C. Circuit ruled on the case. The Court declined to take it up. Then, after the D.C. Circuit ruled, the government opposed Trump’s application to stay that ruling. Again, the Court ruled against the government, ordering the lower courts to delay the trial until it ruled. The Court granted certiorari, specified the question presented, and set the case for oral argument on the last day for arguments this Term.

Even if the Court rejects Trump’s claim of absolute immunity (which seems likely), all this created significant delays in Trump’s trial. And more delays may come. The Court may not rule until late June (or even later), and its decision may require the district court to rule on additional issues before proceeding. For example, the Court’s ruling could require the district court to determine whether particular alleged behavior falls within the “outer perimeter” of the President’s duties. Or it could require the district court to apply some other form of immunity, like qualified immunity. This could take time. Moreover, when Trump moved to dismiss the indictment based on absolute immunity, he also moved to dismiss it on other grounds, also raising important and novel issues that may take time to work through the courts. All this may push any trial back after the 2024 presidential election and, if Trump were elected, the transition. And that could allow a second-term President Trump to quash the case.

That’s likely Trump’s real strategy with this case, anyway.

SCOTUS Says Takings Plaintiff Must Proceed Under State Law

The Supreme Court ruled today that property owners should pursue their claims under the Takings Clause through a cause of action available under state law. The Court declined to say whether the Takings Clause contains its own cause of action (whether it's "self-executing") in the absence of any other cause of action that would vindicate the property owner's rights under the Takings Clause. But when a state-law cause of action exists to protect Takings Clause rights, a plaintiff must use the state law, not the Takings Clause.

The case, DeVillier v. Texas, arose out the state's efforts to use part of U.S. Interstate I-10 as a flood evacuation route. The state erected a 3-foot barrier on the highway that kept the south side open during heavy rains, but flooding the north side, including plaintiffs' lands. Plaintiffs sued in state court, arguing that Texas effected a taking and seeking just compensation under the Texas Constitution and the Fifth Amendment's Takings Clause. Texas removed the case to federal court and moved to dismiss the Fifth Amendment claim, arguing that the plaintiffs had no cause of action under the Takings Clause.

A unanimous Supreme Court declined to answer that question. Instead, the Court ruled that the plaintiffs had to proceed under Texas state law to enforce their Takings Clause claim for just compensation. In other words, the Court said that when an alternative cause of action can protect the plaintiffs' Takings Clause rights, plaintiffs must use the alternative cause of action.

The Court said that because Texas provided a cause of action, "[i]t would be imprudent to decide" whether the Takings Clause contains its own cause of action.

The ruling means that the plaintiffs can go back to state court and seek just compensation under state law.

SCOTUS To Hear Arguments on January 6 Charge

The Supreme Court will hear oral arguments today in Fischer v. U.S., testing whether a federal law that criminalizes obstruction the corrupt obstruction of an official proceeding applies to January 6 insurrectionists. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

ISSUE

Does a federal law that makes it a crime to “corruptly . . . obstruct[], influence[], or impede[] any official proceeding” apply to a person who participated in the mob that stormed the Capitol on January 6, 2021?

FACTS

Joseph Fischer attended former President Donald Trump’s “Stop the Steal” rally on January 6, 2021, at the Ellipse. Fischer did not march with the mob to the Capitol, however; instead, he claims that he and his companion headed home. According to Fischer, as he learned about the attack on the Capitol, he and his companion drove back to Washington, D.C., and went to the Capitol.

At the Capitol, Fischer pushed through the crowd and entered the building. He allegedly encouraged rioters to “charge” and “hold the line”; he had a “physical encounter” with at least one law enforcement officer; and he pushed the police. In addition, prior to January 6, Fischer allegedly sent a spate of text messages to acquaintances threatening violence on January 6.

The government charged Fischer with assaulting, resisting, or impeding certain officers; disorderly conduct in the Capitol; and disorderly and disruptive conduct in a restricted building.

The government also charged Fischer with one count of Obstruction of an Official Proceeding under 18 U.S.C. § 1512(c)(2). That provision makes it a crime to “corruptly . . . otherwise obstruct[], influence[], or impede[] any official proceeding, or attempt[] to do so.” It comes with a fine, “imprison[ment] not more than 20 years, or both.” (The “official proceeding,” of course, was the meeting of Congress to count the electoral votes in the 2020 presidential election.)

Fischer moved to dismiss this count, arguing that it did not prohibit his alleged conduct on January 6. The district court granted the motion, but the D.C. Circuit reversed. (The lower court cases also included two other defendants charged with violations of Section 1512(c)(2).) This appeal followed.

CASE ANALYSIS

18 U.S.C. § 1512(c) reads in full:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

Given the language and the overall context of Section 1512(c), the parties wrangle over whether Section 1512(c)(2) applies to behavior like Fischer’s. As to the language, they focus on the meaning of “corruptly” and “otherwise.” As to the structure, they focus on how Section 1512(c)(2), which read in isolation does not include acts that affect the availability or integrity of evidence, relates to Section 1512(c)(1), which does.

Fischer argues first that the plain language of Section 1512(c)(2) demonstrates that it “applies only to acts that affect the integrity or availability of evidence,” and not cases like this. He says that “Section 1512(c)(2)’s meaning is properly circumscribed by the enumeration of specific obstructive acts in Section 1512(c)(1),” which refers to evidence, and that the word “otherwise” “implies a relation to something else—here, subsection (c)(1).”

Moreover, Fischer contends that the canons of statutory construction support his reading. He claims that “[t]he whole-text canon dovetails with the linguistic analysis of Section 1512’s text and context,” as above. He asserts that the government’s reading would strip the words “otherwise” and “obstruction” of all meaning, and would “collapse[] 15 of the 21 offenses in Section 1512” and even certain obstruction offenses outside of Section 1512 into subsection (c)(2), all contrary to the canon against surplusage. And he asserts that the canons of noscitur a sociis (“a word is given more precise content by the neighboring words with which it is associated”) and ejusdem generis (“when general words follow specific ones . . . the general terms are usually construed to embrace things like the specified words”) both confirm that “‘otherwise’ indicates that subsection (c)(1) relates to (c)(2).”

Fischer argues next that Court precedent supports his reading. Fischer claims that in Yates v. United States, 574 U.S. 528 (2015), the Court read a different portion of the Sarbanes-Oxley Act, 18 U.S.C. § 1519, against the Act’s focus “on corporate and accounting deception and coverups,” not the kinds of activities in this case. Moreover, he contends that “construing Section 1512(c)(2) as a residual clause tracks how this Court has interpreted analogous statutory language” from other statutes. Fischer asserts that two cases invoked by the D.C. Circuit and the government are based “on a misreading” of other Court precedent, and that the remaining cases cited by the D.C. Circuit “all involve evidence impairment”—holdings that “square[] with Mr. Fischer’s argument.”

Fischer argues that “[t]he statutory and legislative history of Section 1512(c) support a narrow reading focusing on investigations and evidence.” He contends that the “predecessors to Section 1512(c)(2) confirm its narrow scope and function as a residual clause.” And he claims that the addition of Section 1512(c)(2) in the Sarbanes-Oxley Act “did not alter Section 1512(c)’s focus on inquiries or investigations,” not the actions like those in this case.

Fischer argues that other components of Section 1512 “confirm its evidence focus.” He claims that “[t]he government and the courts have narrowly viewed ‘proceedings’ under section 1512(c) as involving investigations and evidence.” He contends, contrary to the D.C. Circuit, that the term “corruptly” does not provide an adequate “guardrail” against government overreach under the Act, because the statute doesn’t define it, and because the term is context-dependent and vague. Fischer contends that the common-law definition of “corruptly”—acting “with an intent to procure an unlawful benefit either for [oneself] or for some other person”—“is the only definition . . . that would properly limited Section 1512(c)(2)’s scope and fit with the obstruction-of-Congress context.”

Finally, Fischer argues that the Court should construe Section 1512(c)(2) narrowly, and resolve any ambiguities in his favor. He says that this approach is consistent with the rule of lenity (which says that courts should construe ambiguities in criminal statutes in the defendant’s favor) and the canon of constitutional avoidance (which says that courts should avoid interpreting statutes in ways that raise constitutional questions, in this case to avoid an interpretation that would encompass activities like “lobbying, advocacy, and protest.”).

The government counters that by its plain meaning Section 1512(c)(2) “functions as a catchall designed to capture all forms of obstructive conduct beyond Section 1512(c)(1)’s focus on evidence impairment.” It says that Fischer is wrong to argue that the term “otherwise” restricts Section 1512(c)(2)’s application to evidence, because that term “is a typical way of introducing a catchall clause that sweeps beyond what came before.” The government contends that Fischer’s reading would narrow Section 1512(c)(2) to reach only the behavior already described in Section 1512(c)(1), “depriving [Section 1512(c)(2)] of any meaningful effect.” The government asserts that Court precedent that Fischer relies upon addressed a different statute with very different language, and that Fischer’s invocation of the canons of statutory construction “is likewise misplaced, as those canons do not apply across the two different paragraphs in (c)(1) and (c)(2), which have distinct verbs and objects.” It asserts that Fischer’s argument that would limit Section 1512(c)(2)’s application to official proceedings “that involve a formalized process for finding the truth . . . overlooks the statutory definition of ‘official proceeding’ . . . and would not in any event justify interpreting the terms ‘obstructs, influences, or impedes’ contrary to their ordinary meaning to reach only acts impairing evidence.”

The government argues that the context and structure of Section 1512(c)(2) confirm its reading. It says that Congress used similar language in other obstruction provisions (in Section 1503 and 1505) to indicate that they similarly operate as “catchalls.” It claims that Section 1512(c)(2), as a catchall, “necessarily overlaps with other provisions—but does not subsume them.” It contends that Fischer’s reading, not its own, “creates extensive superfluity and overlap” (as above).

The government argues that history, too, confirms its reading. It points out that Congress enacted the provisions in the wake of the Enron scandal. It claims that Congress designed Section 1512(c)(1) to fill “a loophole in the obstruction statute, which did not have any prohibition on personally destroying documents.” And it contends that Congress designed Section 1512(c)(2) “to address the larger problem the Enron scandal brought to light—namely, the risk that corrupt obstruction could occur in unanticipated ways not prohibited by statutes targeted at specific forms of obstruction.”

The government argues that Section 1512(c)(2) contains sufficient limits to prevent overreach and excessive prosecution. It claims that Section 1512(c)(2) “only covers acts that hinder a proceeding—not acts, like lobbying or peaceful protest,” that do not obstruct and that are protected by the First Amendment. Moreover, it asserts that Section 1512(c)(2) “requires that a defendant’s conduct have a nexus to a specific proceeding, thereby excluding more attenuated conduct.” And it contends that Section 1512(c)(2) only applies when a defendant acted “corruptly.”

Finally, the government argues that under its reading, the rule of lenity and canon of constitutional avoidance have no application. It says that Fischer satisfied all the elements of Section 1512(c)(2), and “the Court should affirm the court of appeals’ judgment reinstating that charge.”

SIGNIFICANCE

The government is waging an extraordinary effort to prosecute those who participated in the January 6 insurrection and the attempt to halt Congress’s count of the electoral vote in the 2020 presidential election. To date, the government has arrested over 1,265 defendants. Of these, it has charged over 300 defendants with a violation of Section 1512(c)(2). A conviction comes with a fine, a sentence up to 20 years, or both. Section 1512(c)(2) is a serious felony charge, and it’s a significant part of the government’s effort to hold January 6 insurrectionists to account.

That said, it’s not the only charge that the government is using; the government also charges insurrectionists with a variety of other crimes. For example, the government charged Fischer with assaulting, resisting, or impeding certain officers (a felony), and disorderly and disruptive conduct (misdemeanors). (The government famously charged—and won a conviction against—leaders of the Proud Boys for seditious conspiracy, among other things, including obstructing an official proceeding under Section 1512(c)(2).) Still, Section 1512(c)(2), as a felony with up to 20 years imprisonment, is an important and significant tool in the government’s effort to prosecute Fischer and certain other January 6 insurrectionists. This case threatens that tool.

As to the historical context, Congress enacted Section 1512(c) as part of the Sarbanes-Oxley Act and in response to the Enron crisis. In an earlier case, Yates v. United States, dealing with a different portion of Sarbanes-Oxley, the Court took account of the Act’s purpose in limiting it. In Yates, the Court held that a provision that makes it a crime to destroy or cover up “any record, document, or tangible object” did not apply to the captain of a commercial fishing vessel who ordered the crew to throw overboard illegally caught fish. In a plurality opinion, Justice Ginsburg wrote, “Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and coverups,” “[a] tangible object captured by § 1519 . . . must be one used to record or preserve information,” and does not include fish.

But Yates was a very different case, with a different line-up on the Court. Today’s textualist majority may take a different view, focusing on Section 1512(c)’s text, and not on its historical context. In other words, it’s not clear that the statute’s Enron-scandal context will sway the Court’s textualists one or way or the other.

One final point. The case has a somewhat unusual posture. As the government argued in its cert.-stage brief, the case comes to the Court on interlocutory review, that is, before final judgment was entered against Fischer (and even before his trial). A defendant usually must wait for a final judgment before challenging a charge. Nevertheless, the Court agreed to hear the case, suggesting that the Court really wants to address the question.

SCOTUS To Test Limits of Federal Anti-Bribery Statute

The Supreme Court will hear arguments today in Snyder v. United States, the case testing whether the federal anti-bribery statute criminalizes only quid pro quo bribery, or also after-the-fact "gratuities." Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

ISSUE

Does Section 666 cover only quid pro quo bribery, or does it also cover after-the-fact gratuities?

FACTS

James Snyder was elected Mayor of Portage, Indiana, and took office in January 2012. Around that time, Snyder was experiencing financial difficulties. He owned a company, First Financial Trust Mortgage, which by 2009 owed nearly $100,000 in payroll taxes, and he was behind in his personal taxes. In December 2010 and February 2011, the IRS had levied Snyder’s bank accounts.

Soon after Snyder took office, Portage needed to purchase new garbage trucks. Snyder “hand-picked” his “close friend” Randy Reeder to run the bidding process, even though Reeder had “no experience” with public bidding. Reeder “tailored the bid specifications to favor” Great Lakes Peterbilt (GLPB), a trucking company owned by two brothers, Robert and Stephen Buha. GLPB submitted the only bid that satisfied the requirements that Reeder set out, and a board consisting of Snyder and two of his appointees voted to award the contract to GLPB.

Snyder later attempted to get the city to buy “an unused, 2012 model truck that had been sitting on GLPB’s lot for two years.” The Buhas were unable to sell the truck, and they soon “would have had to start making balloon payments on [a] loan in order to avoid losing [it].” Reeder again tailored the bidding process so that the city’s specifications matched “the truck sitting on GLPB’s lot.” During the bidding process, Snyder exchanged dozens of e-mails with the Buhas, but none with any other bidder. GLPB again won the city contract. The total value of the two contracts was $1.125 million.

Less than three weeks after GLPB received the second contract, GLPB issued a check for $13,000 to a firm owned by Snyder. Snyder offered different explanations for the payment, ultimately telling the FBI that it was for “health insurance and information technology consulting.” But neither Snyder nor the Buhas produced any “documentation relating to any consulting agreement or services performed . . . for GLPB,” and Snyder did not include the payment on a city compensation-disclosure form. At the time, Robert Buha told GLPB’s controller that “they were paying Snyder for his influence.”

In 2016, a federal grand jury in Indiana indicted Snyder on two counts of corruptly taking money “intending to be influenced or rewarded in connection with” city business, in violation of 18 U.S.C. § 666(a)(1)(B)—one for the truck purchases, and the other for city towing contracts. (Snyder was also indicted on one count of corruptly interfering with the administration of federal tax laws, in violation of 26 U.S.C. § 7212(a).)

Snyder moved to dismiss the Section 666 indictment on the ground that Section 666 prohibits only quid pro quo bribery, and not a “gratuity” case. The district court denied the motion, and a jury found Snyder guilty on the Section 666 count for the garbage-truck purchases, but not for the towing contracts. (The jury also found Snyder guilty on the tax count.) The district court granted a new trial on the Section 666 count due to the “cumulative effect of several irregularities.” (For one, the Buhas unexpectedly declined to testify, invoking their privilege against self-incrimination.)

At Snyder’s second trial, Robert Buha testified (under a grant of immunity) that soon after GLPB won the second contract, Snyder told the Buhas that “he needed money,” and asked for $15,000 to cover his back taxes and holiday expenses. The Buhas declined to give Snyder the money. According to Buha, Snyder said, “Well, I could work for it,” and agreed to provide healthcare consulting to GLPB for an upfront payment of $13,000. Buha testified that Snyder had “ideas and advice,” but also said that Snyder didn’t provide “[a]nywhere close” to $13,000 worth of consulting and couldn’t identify any concrete work that Snyder performed. The second jury, like the first one, convicted Snyder on the Section 666 charge related to the garbage-truck contracts.

The court denied Snyder’s post-trial motion for a judgment of acquittal on the ground that Section 666 doesn’t apply to gratuities. The United States Court of Appeals for the Seventh Circuit affirmed. This appeal followed.

CASE ANALYSIS

18 U.S.C. § 666(a)(1)(B) makes it a crime for a state or local official to

corruptly solicit[] or demand[] for the benefit of any person, or accept[] or agree[] to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more . . . .

The parties wrangle over whether this language includes only quid pro quo bribery (as Snyder would have it), or whether it also includes after-the-fact gratuities (as the government would have it).

Snyder argues first that Section 666’s plain text criminalizes only bribery, not gratuities. He claims that “rewarded” means only a bribe, and that the phrase “intended to be influenced or rewarded” “ensures that Section 666 captures officials who agreed on a quid pro quo payment but deny they were ‘influenced’ by claiming that they would have taken the same action anyhow or that the money was paid after the act.” He says that the government’s interpretation of “intending to be . . . rewarded” “creates superfluity,” because the statute already outlaws bribery, and “[a]ll bribes can be recast as gratuities.” He contends that the statute’s use of “corruptly” supports his reading, because “[b]ribery statutes routinely use ‘corruptly’ to describe deliberately and wrongfully agreeing to a quid pro quo.” And he asserts that the statute’s title states only “[t]heft or bribery,” not gratuities.

Snyder argues next that “Section 666 looks nothing like the many gratuity provisions in the U.S. Code.” He says that gratuity provisions in other statutes “use vastly different language” and appear separate from bribery provisions. Moreover, he contends that other statutes “punish[] bribery far more harshly than gratuities, reflecting those crimes’ relative seriousness.”

Snyder argues that Section 666’s history confirms his conclusion. He points to the 1986 amendment of the provision, where Congress deleted the phrase “for or because of”—“the classic . . . formulation that Congress used . . . to criminalize gratuities to federal officials.”

Snyder argues that the government’s reading raises significant constitutional problems. He says that “the government’s theory . . . turns all thank-you gifts into potential federal crimes” for “tens of millions” of state and local officials and anyone who gives them a gift—a breadth that “raises serious due-process concerns.” Moreover, he claims that the government’s reading is in tension with “[f]ederalism concerns,” because it “disrupt[] state and local governments’ traditional control over the core sovereign matter of their own officials’ ethical duties.” He contends that the provision doesn’t give clear notice that recipients of federal funds cannot accept gratuities, and in any event that “unlike theft or bribes, gratuities do not affect the integrity of federal funds.” Finally, Snyder asserts that the government’s reading “risks chill[ing] core First Amendment-protected activity.” In particular, he says that the government’s reading could prohibit campaign contributions when “[c]itizens donate to politicians to express approval of official conduct” and “[p]oliticians accept those donations presumably knowing they are being thanked for their votes.”

The government counters that Section 666—and in particular its use of the word “rewarded”—“is precisely suited to cover after-the-fact payments” like Snyder’s. The government says that Section 666’s plain text covers “gratuit[ies],” which the Court has defined as “reward for.” Moreover, it claims that Section 666’s prohibition on “corruptly” accepting “anything of value . . . intending to be influenced or rewarded” “covers both the beforehand agreements to trade payment for influence that constitute quid pro quo bribery and the after-the-fact payments intended to ‘make a return . . . for a service.’” The government contends that Snyder’s reading to the contrary is too narrow.

The government argues next that the history of Section 666 demonstrates that it covers gratuities. It says that Congress originally designed Section 666 in 1984 to clarify that the bribery statute applicable to federal officials, which covered both bribes and gratuities, also applied to state and local officials. The government claims that Congress changed Section 666 in 1986 to conform to another statute, updated just three months before, that was “well understood to prohibit both bribes and gratuities given to bank officials.” The government points out that Congress also added “corruptly” in 1986 as “an exclusion for bona fide compensation,” underscoring that “corruptly” didn’t narrow Section 666 to quid pro quo bribery, but instead specifically exempted “bona fide compensation” from the provision’s coverage.

The government argues that Snyder’s constitutional arguments lack merit. It contends that Snyder’s concern about the First Amendment’s application of Section 666 to campaign contributions “can be addressed, if such applications arise, in case-specific ways that do not require [Snyder’s] facial—and atextual—limitation of the statute’s language.” Moreover, it says that the bribery statute that applies to federal officials also bars gratuities, and that statute’s “constitutionality is not disputed.” The government asserts that Section 666’s language is not vague, because it clearly prohibits “bribes and gratuities to public officials.”

Finally, the government argues that Snyder’s “policy concerns . . . provide no basis to override [the] text and in any event are overblown.” It points out that several limiting features of the statute, including its use of “corruptly,” “preclude its application to the sorts of innocuous gift-giving that [Snyder] hypothesizes it might cover.” And it points out that the Court has already ruled that the bar on gratuities in the bribery statute for federal officials “excludes innocuous gift-giving” with language similar to the language in Section 666. The government says that Section 666 goes even further in limiting its sweep, however, by including a $5,000 floor, which means that “everyday occurrences” and small gifts are not covered.

SIGNIFICANCE

This case tests whether the state- and local-official anti-corruption statute covers after-the-fact gratuities in addition to quid pro quo bribery. Snyder says no: the anti-corruption statute applies only to quid pro quo bribery. The government says yes: the anti-corruption statute encompasses after-the-fact gratuities, like Snyder’s.

The difference could matter. The narrower scope (advocated by Snyder) could make it harder for the government to crack down on corruption by state and local officials, at least in those cases where the official accepted a gratuity after the act, with no express quid pro quo. It could even create an incentive for parties to engineer “gratuities” to sidestep the statute. (Snyder’s case itself could provide a blueprint for this.) On the other hand, the broader scope (advocated by the government) could allow the government to prosecute more forms of corruption, including after-the-fact wink-and-nod corruption of the type that occurred here.

In the end, though, at least according to the government (in its cert.-stage brief), “it is unclear that the issue is outcome-determinative in a significant number of cases.” That’s because many defendants’ gratuities may also amount to bribes. According to the government (again, in its cert.-stage brief), even in Snyder’s case “there is no reason to think the jury convicted [Snyder] on a gratuity theory alone, since the jury instruction paralleled the statutory text and, as both the district court and the court of appeals expressly held, there was ample evidence that petitioner engaged in quid pro quo bribery.”

Finally, the lower courts are split on the question, with five circuit courts holding that Section 666 covers gratuities, and just two holding that it doesn’t. The Court’s ruling will resolve the split and set a nationwide standard. Still, as with any case in which the Court interprets statutory language, Congress will (at least in theory) have a final say.

SCOTUS to Test Probable Cause for Malicious Prosecution Claims

The Supreme Court will hear oral arguments on Monday in Chiaverini v. City of Napoleon, Ohio, a case testing whether a police officer who initiates a baseless criminal charge that causes an unreasonable seizure is liable for a Fourth Amendment violation if the officer had a separate, valid charge based on probable cause. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

ISSUE

Must a plaintiff who lodges a malicious-prosecution claim show that the officers lacked probable cause for every crime charged, or only for the charge that led to the plaintiff’s arrest and detention?

FACTS

Jascha Chiaverini managed a jewelry store in Napoleon, Ohio, called the Diamond and Gold Outlet, owned by Chiaverini, Inc. On November 16, 2016, Brent Burns came to the Outlet and sold Chiaverini a ring and diamond earrings for $45. (Burns had sold Chiaverini jewelry “[o]n several past occasions.”) Burns affirmed that he owned the items.

That same day, David and Christina Hill called the Outlet and asked if anyone sold their ring. Chiaverini denied buying the ring, but David said that he knew Chiaverini bought it from Burns. Chiaverini and the Hills then both called the police.

David Hill went to the Outlet, followed closely by Officers David Stewart and Nicholas Evanoff. David gave a description of the stolen items to Officer Stewart, while Chiaverini provided the officers with photos of the jewelry and information on Burns. Before leaving, Officer Evanoff instructed Chiaverini not to sell the items.

(Just for a little more context: Chiaverini points out in his brief that Officer Evanoff co-owned Star Pawn, a nearby store that sometimes competed with the Outlet for business. Since the events giving rise to this case, Evanoff was convicted on federal felony charges. He was deposed for this case while in federal prison.)

Officer Stewart wrote an initial report and later added additional details. Among the updates, Officer Stewart wrote that Chiaverini told Officer Evanoff that “the reason he bought the ring and kept records regarding the purchase, was because he suspected that it was in fact stolen.” Officer Evanoff later said that Chiaverini “stated he believed . . . the ring to be stolen” and “[t]hat’s why he filled out the buy card, because Brent Burns normally sold him fake jewelry.”

Officer Stewart justified omitting these statements from his initial report, because “Burns was the suspect, not” Chiaverini. According to Officer Stewart, when Chiaverini became a suspect, Officer Stewart updated the report, consistent with the practice of the department. Nevertheless, Chiaverini categorically denied making these statements. (According to Chiaverini, he “did not suspect the Burns jewelry was stolen when he purchased it (nor did he tell anyone otherwise).”)

The police sent a “hold letter” to Chiaverini, directing him to “hold this item . . . as evidence of the crime of Theft” and to “retain[] the items.” It also directed him to “release these items to David or Christina Hill.” After Chiaverini received the letter, Christina came to the Outlet and asked for the items. Chiaverini refused to turn them over, however, based on the letter’s directive to hold them.

The police then returned to the Outlet and directed Chiaverini to release the items to the Hills. Chiaverini refused, believing that this “would have been a criminal act.” Moreover, Chiaverini’s attorney advised him to hold onto the items.

Two days later, Chiaverini confronted Chief Robert Weitzel outside the police station. Chiaverini asked about the hold letter, in particular, what Chiaverini understood as conflicting directives (not to release the property, but to release it to the Hills). Chief Weitzel recalled that Chiaverini told him that he (Chiaverini) did not need to comply with the hold letter and that he would not release the items to the Hills. Chief Weitzel also recalled that Chiaverini “alluded to the fact that he didn’t have a [precious-metal-dealers] license.” The police later confirmed that Chiaverini’s license was inactive.

Officer Stewart sent the police reports to the City of Napoleon’s lawyer, Billy Harmon. Harmon drafted warrant templates for the officers to complete. As part of the templates, Harmon identified Chiaverini’s potential criminal offenses as receiving stolen property, operating without a valid license as a pawnbroker and as a precious-metals dealer, money laundering, and engaging in a pattern of corrupt activity.

Officer Evanoff prepared and signed a Probable Cause Affidavit and applied for search and arrest warrants. Officer Evanoff also signed criminal complaints charging Chiaverini with receiving stolen property, violations of the Ohio Precious Metals Dealers Act, and money laundering. Of the three charges, money laundering was the only felony. A judge signed the search and arrest warrants.

The police then searched the Outlet and arrested Chiaverini. They also seized the Hills’ stolen jewelry and items related to licenses, sales, and purchases of precious metals, including other jewelry and the store’s three computers. Chiaverini remained in custody for three days.

The same judge who issued Chiaverini’s warrants held a preliminary hearing and found that probable cause existed. The judge bound over all charges for trial. Later, however, the charges were dismissed when the prosecution declined to present the case to a grand jury. The court ruled that the charges were not timely presented to a grand jury.

Chiaverini sued Officers Evanoff and Stewart, other individuals, and the City of Napoleon alleging several constitutional violations, including a claim that the officers initiated the money-laundering charge against Chiaverini without probable cause and that this led to Chiaverini’s unlawful arrest and detention. (The parties refer to this as a Fourth Amendment “malicious-prosecution” claim.) The district court dismissed the case, however, concluding that probable cause supported the search and arrest warrants against Chiaverini. The United States Court of Appeals for the Sixth Circuit affirmed, and this appeal followed.

CASE ANALYSIS

In order to prevail in a Fourth Amendment malicious-prosecution case, a plaintiff must prove that the defendant instituted a legal process “without any probable cause” and with “malicious motive”; that the plaintiff’s case ended favorably; and that the plaintiff suffered a harm “housed in the Fourth Amendment” (for example, a seizure). Thompson v. Clark, 142 S. Ct. 1332 (2022). This case focuses on the first part of that test, “without any probable cause,” as it relates to the money-laundering charge.

Chiaverini argued in the Sixth Circuit that the officers lacked probable cause because Chiaverini did not know the jewelry was stolen at the time of purchase, and that the only evidence to the contrary came from the officers’ false statements. He also argued that they lacked probable cause because there was no basis for finding that the jewelry purchased for $45 met the money-laundering statute’s requirement that the transaction be worth $1,000 or more. Chiaverini contends that he demonstrated a lack of probable cause by showing that the officers lacked probable cause for the specific charge, money laundering.

But the Sixth Circuit disagreed. The Sixth Circuit ruled that Chiaverini had to prove that the officers lacked probable cause for all three charges. Under this approach, the officers could escape liability (as they did) by showing that they had probable cause for just one or two of the three charges, even if not for money laundering.

The parties argue whether a Fourth Amendment malicious-prosecution claim requires a plaintiff to prove the lack of probable cause for the specific charge, or whether such a claim requires a plaintiff to prove lack of probable cause for any of the several charges.

Chiaverini argues for the charge-specific approach. He contends that the charge-specific rule is consistent with treatises, American cases, and English cases from around the time of Section 1983’s enactment (in 1871). He says that all of these sources support and employ the charge-specific rule in malicious-prosecution cases.

Chiaverini contends that because “the American tort-law consensus as of 1871” applied the charge-specific rule, “Thompson dictates that this Court should ‘similarly [apply that rule to] the Fourth Amendment claim under Section 1983 for malicious prosecution’ so long as doing so is ‘consistent . . . with the values and purposes of the Fourth Amendment.’” He claims that the Court in Thompson identified two “values and purposes of the Fourth Amendment.” First, “a common-law tort rule applied to a Fourth Amendment malicious-prosecution claim cannot lead to arbitrary results.” But Chiaverini asserts that the any-crime rule would lead to arbitrary results, for example, “insulating an officer from liability where there is probable cause for even the smallest offense and by allowing an individual’s right to seek redress to turn on the fortuity of whether a prosecutor decides to bring charges all at once or in separate proceedings.” Second, a common-law tort rule “cannot lead to unwarranted civil suits.” But Chiaverini says that “[t]he charge-specific rule won’t: Police officers will still be protected by other doctrines, including qualified immunity.”

Chiaverini argues that the any-crime rule would “undermine key features of” the Warrant Clause. According to Chiaverini, that’s because an officer could “use deliberately falsified allegations” or even “trumped-up charges” to show probable cause to support a warrant, so long as they had actual probable cause based on another crime. Moreover, for these same reasons, the any-crime rule “makes it impossible for [an] independent party to properly weigh the evidence” in support of a warrant.

Chiaverini argues that “[t]he charge-specific rule is also more consistent than the any-crime rule with the Fourth Amendment’s prohibition on ‘unreasonable seizures.’” He says that at the time of the Founding, the Fourth Amendment required legal process confirming probable cause. But he claims that “[t]he only legal process in [his] case was the issuance of a warrant based on outright misrepresentations by police officers.” He asserts that probable cause only supporting a different charge does not provide enough process.

Finally, Chiaverini argues that the Sixth Circuit’s reasons for adopting the any-crime rule do not “survive[] scrutiny.” For one, he says that the Sixth Circuit’s justification that an any-crime rule should apply equally to malicious-prosecution claims as to warrantless arrest claims (where the any-crime rule already applies) doesn’t account for the fact that “this Court’s doctrine treats warrantless arrests differently from arrests pursuant to legal process. For another, he contends that the Sixth Circuit wrongly “assumed that it wouldn’t matter to a plaintiff whether he was charged with one count or several.” To the contrary, Chiaverini says that “the number and severity of the counts matter a great deal . . . affect[ing] the duration of the pretrial seizure and the amount and availability of bail, for instance.” Finally, Chiaverini argues that the officers’ proffered “length-of-detention” rule “wasn’t the rule [they] pressed below, and . . . strays far from the question presented in this case.”

The government weighs in to argue that the “[a] person who faced a baseless criminal charge may bring a Fourth Amendment malicious-prosecution claim . . . even if he also faced a valid charge . . . [b]ut the person must show that the baseless charge cause an unreasonable seizure.” The government says that a baseless charge can cause an unreasonable seizure when “the inclusion of the baseless charge can unreasonably prolong a suspect’s pretrial detention . . . or cause an unreasonable seizure in some other way.” (This is the “length-of-detention” rule that Chiaverini refers to.) In order to determine this, the government claims that courts should “proceed charge by charge in evaluating the probable-cause element of the” claim, like nineteenth-century courts did with malicious-prosecution claims. The government argues that the Court should articulate this correct test and remand the case to the lower courts to apply it in the first instance.

The officers argue that in order for Chiaverini to prevail, he must “prove that the malicious prosecution resulted in a seizure.” Thompson v. Clark, 142 S. Ct. 1332 (2022). But they contend that Chiaverini cannot prove this, for the simple reason that “both the nature and duration of his seizure were reasonable and justified by two indisputably legitimate charges.” The officers assert that the district court and the Sixth Circuit both concluded that “there was probable cause to arrest and prosecute Chiaverini for both his receipt of stolen property and the licensure violation,” irrespective of the money-laundering charge.

The officers claim that Chiaverini’s arguments to the contrary “are unavailing.” They say that Chiaverini’s invocation of nineteenth-century common law ignores the fact that “the Fourth Amendment provides the substantive law . . . and [Chiaverini’s] every-crime rule is inconsistent with the requirement that the alleged malicious prosecution resulted in a seizure.” Moreover, they assert that “the nineteenth-century common law remedied other injuries that the Fourth Amendment does not recognize, including purely reputational or defamatory harms.” In sum, they contend that “[i]t would be inconsistent with the values and purposes of the Fourth Amendment, apparent from its text, to import nineteenth-century common law designed to remedy other types of injuries not guaranteed by the Fourth Amendment.”

The officers argue next that Chiaverini’s any-crime rule “is inconsistent with the Fourth Amendment’s values and purposes.” For example, as above, “it is severed from the requirement of a seizure.” Moreover, they contend that the any-crime rule would allow a plaintiff merely to allege that an officer fabricated a charge, thus “creat[ing] a per se Fourth Amendment claim based on the subjective state of mind of an officer, which would be foreign to and in conflict with longstanding Fourth Amendment jurisprudence.” They assert that the officers did not fabricate evidence in Chiaverini’s case, but even if they did, the officers’ “ulterior motives do not negate the probable cause for [Chiaverini’s] reasonable seizure on two other charges.”

The officers argue that Chiaverini’s “claim does not invoke the Fourth Amendment’s guarantee against unreasonable seizures or the Warrant Clause.” But even if the Warrant Clause applied here, they say that a warrant “is nonetheless valid if the falsehoods do not negate probable cause.” According to the officers, here they don’t.

Finally, the officers argue that the Court should decline the government’s invitation to remand the case. They say that the Court can articulate the test and apply it itself. They contend that “[t]he Court should not be concerned that Chiaverini declined to argue that his “unfounded charges changed the nature of his seizure or prolonged his detention.” They assert that Chiaverini knew of this argument, declined to raise it, and therefore waived it.

SIGNIFICANCE

This case will determine whether Chiaverini (and others like him) can succeed on a malicious-prosecution cause of action where officers had probable cause for some charges, but not for the charge(s) that led to the plaintiff’s particular seizure (considering its nature and extent). For Chiaverini and the City of Napoleon, this could be significant: he originally sought “damages in excess of $3 million.” 

The parties and the government give the Court three alternatives. Chiaverini argues that a plaintiff need only show that officers lacked probable cause in relation to the particular charge that resulted in a plaintiff’s particular seizure. By this reckoning, it doesn’t matter if the officers had probable cause for any other charges.

The officers, in sharp contrast, seem to argue that a plaintiff must demonstrate that the officers lacked probable cause on all charges, at least insofar as other charges would independently justify “both the nature and duration of [the] seizure.” But it’s not at all clear that the other two charges against Chiaverini would justify “both the nature and duration of [his] seizure.” In other words, the other two charges may only justify a seizure of a lesser “nature and duration.” (Remember that the other two charges were misdemeanors; the money-laundering charge was the only felony.) Still, the officers argue that “both the nature and duration of [Chiaverini’s] seizure were reasonable and justified by two indisputably legitimate charges.”

The government offers something of a middle ground. The government contends that a plaintiff can succeed on a malicious-prosecution claim when the charge that lacked probable cause “unreasonably prolong[ed] a suspect’s pretrial detention . . . or cause[d] an unreasonable seizure in some other way.” (The officers seem to argue that their approach is consistent with the government’s approach. But again: it’s not at all clear that the other two charges would justify “both the nature and duration of [his] seizure.” As misdemeanors, they might have led to a lesser “nature and duration of . . . seizure.”) The government also argues for a remand to apply its test. This middle-ground approach may be attractive to the Court.

In addition to the impact on Chiaverini, the city, and others like them, the case is also significant because it will resolve a circuit split. At least three circuits ruled differently than the Sixth Circuit, and several circuits have asked the Court to resolve the question. This case will resolve it.

SCOTUS to Hear Challenge to Mifepristone on Tuesday

The Supreme Court will hear oral arguments on Tuesday in the case challenging FDA's approval of mifepristone, part of a two-drug regimen approved to terminate a pregnancy. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Abortion Access

Did the U.S. Food and Drug Administration lawfully remove requirements for a drug used to voluntarily terminate a pregnancy?

Case at a Glance

In 2000, the U.S. Food and Drug Administration (FDA) approved mifepristone as part of a two-drug regimen to end an early pregnancy. As part of the approval, FDA imposed certain requirements on the drug’s use. In 2016, FDA relaxed those requirements by extending the approved use from seven weeks to ten weeks, reducing the number of required in-person clinical visits, and allowing certified non-physician health-care providers to prescribe the drug. Then, in 2021, FDA eliminated the in-person dispensing requirement.

Food and Drug Administration v. Alliance for Hippocratic Medicine

Docket No. 23-235

From: The Fifth Circuit

Argument Date: March 26, 2024

 

INTRODUCTION

Individual doctors, including emergency-room doctors, and doctor organizations sued FDA, arguing that FDA made the changes without reasoned decisionmaking, in violation of the Administrative Procedure Act (APA). The United States Court of Appeals for the Fifth Circuit stayed the effective dates of the changes and in the alternative imposed a preliminary injunction.

ISSUES

1. Do the plaintiffs have standing?
2. Did FDA base its 2016 and 2021 actions on reasoned decisionmaking?
3. If not, did the Fifth Circuit grant proper preliminary relief?

FACTS

Background on Mifepristone

In 2000, after a four-year review of the initial application, FDA approved mifepristone as part of a two-drug regime to end an early pregnancy. (FDA initially approved mifepristone under the brand-name Mifeprex, sponsored by Danco Laboratories, L.L.C., an appellant (along with FDA) in this case.) FDA’s approval called for women using the drug to make three in-person clinical visits: first, to take mifepristone; next, two days later, to take misoprostol, the second drug; and finally, to follow up to confirm the termination of the pregnancy. FDA determined that mifepristone, used this way, was safe and effective for women through seven weeks of a pregnancy. FDA re-approved essentially these same requirements in 2011. (FDA re-approved the requirements as a “risk evaluation and mitigation strategy” (REMS). REMS, which Congress added to the Food, Drug, and Cosmetic Act in 2007, authorizes FDA to issue a “strategy” for drug use whenever FDA determines that such a “strategy” is necessary to ensure that the drug’s benefits outweighed its risks.)

In 2016, FDA approved three changes to the REMS for mifepristone. First, FDA expanded the drug’s approved use from seven weeks to ten weeks. Next, it reduced the number of required in-person clinical visits from three to one. Third, it allowed non-physician health-care providers who were licensed to prescribe drugs (like nurse practitioners) to prescribe mifepristone. FDA based these changes on numerous studies of mifepristone’s safety and efficacy.

At the same time, FDA also modified a prior provision that required prescribers to report certain adverse events, like hospitalizations and blood transfusions, to the drug’s sponsor. FDA determined, based on “15 years of reporting,” that the requirement to report non-fatal events was no longer warranted, and that this information could be “collected in the periodic safety update reports and annual reports” by the drug’s sponsor—“as with all other approved drugs.”

In support of the 2016 changes, FDA concluded that serious adverse events resulting from mifepristone are “exceedingly rare,” and that mifepristone’s use under the revised conditions would be “safe.” In particular, FDA referenced published studies of tens of thousands of women showing that hospitalization after mifepristone use occurs in between 0 percent and 0.7 percent of cases, and that bleeding requiring transfusion occurs in between 0 percent and 0.5 percent of cases.

In 2019, FDA approved an application for a generic version of mifepristone. The same REMS cover both versions.

In April 2021, FDA announced that it would decline to enforce the in-person dispensing requirement in light of the COVID-19 pandemic. FDA said that the decision “was the result of a thorough scientific review by [agency] experts” who evaluated “clinical outcomes data and adverse event reports.” (Earlier in the pandemic, in July 2020, a federal district court enjoined FDA’s enforcement of the in-person dispensing requirement. American College of Obstetricians & Gynecologists v. FDA, 472 F. Supp. 3d 183 (D. Md. 2020). The injunction remained in place until January 2021, when the Court stayed it. FDA v. American College of Obstetricians & Gynecologists, 141 S. Ct. 578 (2021).) In December 2021, FDA determined that the in-person dispensing requirement was no longer necessary, and in 2023, after this case was filed, FDA removed the in-person dispensing requirement from the REMS. (FDA retained the requirement that only authorized health-care providers can prescribe mifepristone, and only after a patient signed a form that provides information on the drug and instructions on follow-up care, if necessary.)

Challenges to Mifepristone

In 2002, the American Association of Pro-Life Obstetricians & Gynecologists (AAPLOG) and the Christian Medical & Dental Associations (CMDA) filed a citizen petition with FDA asking the agency to withdraw its 2000 approval of mifepristone. FDA denied the petition in March 2016 (on the same day that it approved the changes to mifepristone’s requirements). FDA said that “well-controlled clinical trials supported the safety” of mifepristone in 2000, and that “over 15 years of postmarketing data and many comparative clinical trials in the United States and elsewhere continue to support [its] safety.”

Then, in 2019, AAPLOG and the American College of Pediatricians (ACPeds) filed a citizen petition challenging FDA’s 2016 changes to mifepristone’s requirements, and asking the agency to retain the in-person dispensing requirement. FDA denied the petition in December 2021. Based on the scientific literature, FDA concluded that “the in-person dispensing requirement is no longer necessary to assure the safe use of mifepristone.”

Most recently, in November 2022, the Alliance for Hippocratic Medicine, AAPLOG, CMDA, ACPeds, and four individual doctors sued FDA, challenging its 2000 approval of Mifeprex (the second drug, used with mifepristone), the 2016 changes, the 2019 approval of generic mifepristone, the 2021 exercise of enforcement discretion, and the 2016 and 2021 denials of the citizen petitions.

The district court stayed the challenged actions. The government and Danco appealed and sought a stay of the district court ruling pending appeal. The Fifth Circuit stayed the district court ruling as to FDA’s 2000 approval of mifepristone, but otherwise left the ruling in place. The Court then stayed the district court stay in its entirety pending appeal.

After additional briefing and argument, the Fifth Circuit vacated FDA’s 2016 and 2021 actions. This appeal followed.

CASE ANALYSIS

This case raises three issues. Let’s take them one at a time. (FDA and Danco each submitted a brief. Because their arguments are similar, we refer together as FDA’s arguments.)

Standing

The government argues that the plaintiffs lack standing, because they do not prescribe mifepristone, and because FDA’s actions that allow other health-care providers to prescribe mifepristone “do not require [the plaintiffs] to do or refrain from doing anything.” The government says that the Fifth Circuit was wrong to hold that some of the plaintiffs’ members are injured because they might have to treat women who suffer serious side effects from mifepristone. The government claims that this “statistical” injury has been flatly rejected by the Court.

Moreover, the government contends that the plaintiffs can’t point to a single member who has suffered a sufficient injury for standing, and that the plaintiffs’ proffered injuries are too speculative. (For example, the government asserts that the plaintiffs “cannot identify even a single case where any of their members has been forced to” “complet[e] an abortion for a woman who presents in an emergency room with an ongoing pregnancy.”) In any event, the government claims that the plaintiffs’ standing “theories are independently foreclosed because they rest on the untenable premise that emergency-room doctors suffer an Article III injury whenever they provide emergency care.”

The government argues that the plaintiffs also lack standing because they cannot show that FDA’s challenged actions caused their asserted injuries. “If those injuries occur at all, they will be linked to FDA’s actions only by a long and attenuated causal chain involving independent actions by other providers, patients, and third parties.”

Finally, the government argues that the plaintiffs lack organizational standing. According to the government, “[t]his Court has never accepted [the plaintiffs’] suggestion that an organization can manufacture standing to challenge an agency action merely by expending resources on that challenge.”

The plaintiffs counter that “they are facing multiple concrete injuries” resulting from FDA’s actions. For one, they say that they suffer “conscience harms” related “to taking the life of an unborn child” and their “complicity” in doing so. For another, they contend that “the emergency situations expressly and repeatedly contemplated by FDA cause [them] to divert time and resources away from their labor and delivery practices and increase their malpractice risks.”

The plaintiffs argue next that they can trace their harms to FDA’s actions. They contend that FDA’s 2021 action (removing the initial in-person-visit requirement) “strips away the best opportunity to diagnose dangerous ectopic pregnancies and accurately assess gestational age.” They claim that FDA’s 2016 changes (increasing the gestational-age limit and removing the follow-up-visit requirement) “heighten the risk” that they will have to “participate in elective abortions.”

FDA’s Actions

The government argues first that FDA’s 2016 changes “were supported by an exhaustive review of a record including dozens of scientific studies and decades of safe use of mifepristone by millions of women in the United States and around the world.” The government says that the Fifth Circuit was wrong to vacate FDA’s 2016 actions on the ground that FDA “failed to cite a study examining the combined effect of all the relevant changes.” It claims that there is no basis for such a requirement, and that “in any event, FDA did cite a study that combined the relevant changes.”

The government argues next that it validly changed the reporting requirement for adverse events in 2016. The government claims that this change brings mifepristone “more in line with the reporting mechanism that applies to nearly all other FDA-approved drugs.” It says that it validly dropped the previous reporting requirement “[b]ased on more than 15 years of experience” with the drug, demonstrating that “the drug’s safety profile was well-established and serious adverse events were exceedingly rare.”

Finally, the government argues that its elimination of the in-person dispensing requirement in 2021 was valid. It says that the “actual experience during the pandemic,” among other things, led it to conclude “that the requirement was no longer necessary to ensure mifepristone’s safe use.” Moreover, the government contends that the Fifth Circuit wrongly concluded that FDA used flawed studies. The government asserts that the APA requires FDA “to act reasonably based on the information available,” not to use “perfect data.” The government claims that FDA met this standard here.

The plaintiffs counter that “FDA failed to engage in the reasoned decision-making the APA requires.” They say that FDA’s decision to remove the initial in-person-visit requirement was based on one data set that even “FDA concedes . . . cannot be used to estimate the incidence of adverse events or indicate the safety profile of a drug” and another set of studies that FDA “admitted . . . were ‘not adequate’ for that purpose.” Moreover, they contend that FDA lacked important information about the drug’s safety, because it earlier abandoned the requirement that mifepristone prescribers report nonfatal adverse events.

The plaintiffs argue that FDA’s 2016 actions (removing the follow-up-visit requirement, increasing the gestational age, allowing non-doctors to prescribe the drug, and ending the requirement for prescribers to report all serious adverse events) “failed to consider the cumulative impact of removing all these interrelated safeguards at once” and “failed to explain why it could extrapolate safety conclusions for its omnibus changes from studies that did not evaluate the changes as a whole.” They also claim that FDA relied on studies of safeguards (like ultrasound screenings) that “were not included in the approved regimen.”

Preliminary Relief

The government argues that even if the plaintiffs had standing and even if they might succeed on the merits, “the Fifth Circuit erred in affirming sweeping preliminary relief.” The government says that the district court initially erred in “postponing” FDA’s actions, even though those actions had been “in effect for years.” And it claims that there is no good reason to issue a nationwide halt to FDA’s actions (which “threatens profound harms to the government, the healthcare system, patients, and the public”) when the “asserted injuries are at best attenuated” and when the “claims assert only that FDA failed adequately to explain its actions.”

The plaintiffs counter that the Fifth Circuit’s preliminary injunction is appropriately tailored. They say that all the standards for a preliminary injunction point in their favor. They emphasize that their harms are “irreparable,” and that the injunction would only reimplement the “safety standards that FDA required for 16 years and under which millions of women took mifepristone.”

SIGNIFICANCE

Coming just shy of two years after Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), overturning Roe v. Wade, 410 U.S. 113 (1973), this case represents a next critical front in the ongoing debates over reproductive freedom. And the stakes are enormous. By 2021, medication abortions accounted for over half of all abortions in the United States. And FDA’s 2016 and 2021 actions made medication abortions even more accessible. Under these actions, women in states that still allow abortion can more easily gain access to medication-abortion drugs. Vacating or enjoining those changes would sharply limit access to abortion nationwide.

But whatever the Court says, this case won’t end debates over medication abortions. For one, FDA’s approval of mifepristone could preempt state laws restricting abortion. If so, women in states that restrict or prohibit abortion, including medication abortion, could still gain access to mifepristone. Cases are now pending in the federal courts but may not work their way up to the Court for some time.

For another, states that are bent on restricting or eliminating abortion continue to look for ways to prevent their residents from receiving abortion drugs through the mail. Many have pointed to the Comstock Act, which prohibits the delivery of contraception and items considered “obscene” through the U.S. Mail. But early this year the Department of Justice opined that the Comstock Act does not prohibit the U.S. Postal Service from delivering mifepristone and misoprostol, because those drugs could be used for purposes other than abortion, and therefore neither the sender nor the U.S. Postal Service can know how the pills will be used. The Department’s opinion drew sharp criticism, suggesting that debates over the Comstock Act have only just begun.

For a third, there is a safe and commonly used (at least internationally) alternative to the mifepristone-misoprostol regimen: a misoprostol-only regimen. While this is not currently approved by FDA, some U.S. telehealth organizations have been reportedly providing a misoprostol-only regimen for several years. We might expect to see more debates and even litigation around misoprostol, regardless of what the Court has to say about mifepristone.

Outside of the ongoing debates over reproductive rights, this case has independent significance for what it might say about FDA’s authority (and maybe about agencies’ authorities more generally). The Fifth Circuit’s ruling marks a truly exceptional break with the deference that federal courts traditionally give to FDA. As the government says, to its knowledge, “this case marks the first time any court has restricted access to an FDA-approved drug by second-guessing FDA’s expert judgment about the conditions required to assure that drug’s safe use.” That’s especially notable, given mifepristone’s exceptional safety record in the United States and abroad.

If the Court affirms the Fifth Circuit, the ruling could have important implications far beyond mifepristone (in particular, with regard to the evidence and methodologies that the Court might allow or disallow FDA to use in approving drugs and establishing their safety standards). And given this Court’s record in recent years of second-guessing agency judgments (and with more cases testing agency decisionmaking now before the Court), we might not be surprised if the Court similarly second-guesses FDA’s judgments here. But even if so, remember that FDA could have the final word by re-approving mifepristone under whatever standards the Court might set.

Sixth Circuit Says Certain Religious Objectors Have Standing to Challenge Vaccine Mandate

The Sixth Circuit ruled that two religious objectors to a Cleveland, Ohio, hospital's COVID-19 vaccine mandate had standing to sue the hospital for a violation of Title VII, while dozens of other objectors didn't. The difference turned on whether each objector actually resigned, and, if so, whether each objector's resignation was a "constructive discharge," which, in turn, depended on when each resigned.

The case, Savel v. MetroHealth System, tested the hospital's COVID-19 vaccine mandate for employees. The hospital accepted applications for religious exemptions, then categorically denied all religious exemptions, telling objectors that they had 45 days to get a vaccine or be fired. But nine days short of the vaccine deadline, the hospital reversed course and granted all requests for religious exemptions.

Employees sued, arguing that the mandate violated Title VII. The district court dismissed the case for lack of standing or, in the alternative, failure to state a claim.

The Sixth Circuit agreed that most of the plaintiffs lacked standing. The court first noted that most of the plaintiffs were still employed by the hospital. It said that those plaintiffs' alleged injuries (severe mental anguish and the looming threat of losing their job if the hospital were to reinstate the mandate) were "too conclusory" and "contingent on future events that may never come to pass." Of the remaining plaintiffs, the court noted that most of them resigned after submitting exemption requests, but before the hospital denied them, and therefore failed to "support a theory of constructive discharge."

But the court said that two plaintiffs had standing. These two only resigned after the hospital denied their requests for exemptions, but before the 45-day deadline for getting a vaccine. The court said that these resignations amounted to constructive discharges, because "the forty-five day window was not an uncertain process that may or may not end in discharge." To the contrary, the "facts plausibly allege that [the hospital] communicated to Plaintiffs 1 and 2 that they would be terminated after forty-five days if they refused to be vaccinated on religious grounds."

At the same time, though, the court noted that these plaintiffs "may lack standing at a latter phase of this litigation based on additional evidence about the certainty of termination."

The ruling sends the case back to the district court for further proceedings on these two plaintiffs' claims.

Sixth Circuit Rejects Medical Resident's Due Process Claim

The Sixth Circuit rejected a procedural due process claim by a medical resident at a public medical school after the school dismissed the resident for unprofessional behavior. Consistent with other courts that have considered the issue, the court ruled that a medical resident was more like a student than an employee, and therefore entitled to lesser procedural protections.

The case, Mares v. Miami Valley Hospital, arose out of complaints against the plaintiff, a medical resident at Wright State University's Boonshoft School of Medicine and Miami Valley Hospital, for unprofessional behavior. After a series of interventions, probation, and a committee vote to dismiss the plaintiff, a review panel recommended that the plaintiff remain on probation through graduation, but that any additional violations of WSU's academic and professional standards would result in immediate termination from the program.

The dean and president of Miami Valley rejected the recommendation, however, and affirmed the earlier committee decision to dismiss the plaintiff. WSU's provost affirmed. The plaintiff sued, arguing that WSU violated procedural due process.

The Sixth Circuit disagreed. The court first ruled that the plaintiff, as a resident, was more like a student than an employee, and that she was therefore entitled only to the "minimal" procedural due process protections of a student dismissed for academic reasons. (The court based this conclusion on the nature of the program and program materials. It also noted that this is consistent with every other court that considered the question.) The court then wrote that she received "more than enough process":

It is undisputed that [the plaintiff] accumulated several complaints about her unprofessional behavior from medical students, colleagues, and WSU faculty members throughout her residency. In less than two years at WSU, [the plaintiff] had been formally warned about her performance, suspended for several days, and placed on probation. Despite these formal warnings, [the plaintiff] continued with her problematic conduct and, after deliberation, WSU's Clinical Competency Committee recommended dismissing her from its residency program. In doing so, the Committee set in motion WSU's extensive internal procedures . . . which ensure that residents facing an adverse action are provided with quintessential due process.

The court also rejected the plaintiff's substantive due process claim, ruling that she had no substantive due process right in her residency (again, an educational program), but in any event that the school didn't act arbitrarily and capriciously or in a way that would shock the conscience.

D.C. District Says Voters Lack Standing to Challenge Noncitizen Voting

Judge Amy Berman Jackson (D.D.C.) ruled today that a group of voters in D.C. lacked standing to challenge a D.C. law that allows noncitizens to vote in local, but not national, elections. The court said that plaintiffs lacked a particularized injury:

In sum, plaintiffs have not alleged that they have personally been subjected to any sort of disadvantage as individual voters by virtue of the fact that noncitizens are permitted to vote, too. They may object as a matter of policy to the fact that immigrants get to vote at all, but their votes will not receive less weight or be treated differently than noncitizens' votes; they are not losing representation in any legislative body; nor have citizens as a group been discriminatorily gerrymandered, "packed," or "cracked" to divide, concentrate, or devalue their votes. At bottom, they are simply raising a generalized grievance which is insufficient to confer standing.

Federal law prohibits noncitizens from voting in federal elections. According to Ballotpedia, as of March 2024, seven states prohibit noncitizens from voting in state and local elections (Alabama, Arizona, Colorado, Florida, Louisiana, North Dakota, and Ohio), and D.C. and municipalities in three states (California, Maryland, and Vermont) allow noncitizens to vote.

Trump Argues for Absolute Immunity in SCOTUS Case

Former President Donald Trump filed his brief yesterday in his immunity claim in the January 6 criminal case now before the Supreme Court. As expected, he argued for absolute immunity for a former president from criminal liability for acts within the outer perimeter of the president's responsibilities.

The key points are by now familiar (even if, well, er, novel):

• Courts can't review acts of the president (going back to cherry-picked language from Marbury v. Madison);
• The president enjoys absolute immunity from civil liability for acts within the outer perimeter of the office (from Nixon v. Fitzgerald);
• Therefore, even more so, a former president enjoys absolute immunity from criminal liability for acts within the outer perimeter of the office.

Trump adds that a former president can be prosecuted, but only after impeachment in the House and conviction in the Senate. He says that this absolute immunity is essential to allow a sitting president to act without worry of future criminal prosecution.

(If you want to see a different perspective on these claims by a neutral decisionmaker, here's the D.C. Circuit's ruling.)

Trump adds that even if he's not absolutely immune, the Court should read the criminal statutes in the January 6 indictment as not applying to the president, because they don't contain a clear statement applying to the president. (Trump imports this idea from Franklin v. Massachusetts.)

Just to be clear: Trump's claims are truly extraordinary, and come with chilling implications. Recall that his attorney argued in the D.C. Circuit that a president could order the military to assassinate a political rival with impunity, unless and until that president were impeached by the House and convicted by the Senate. Mercifully, Trump didn't repeat that claim in his briefing at the Supreme Court. But he also didn't disavow it. And his logic inexorably supports it.

Court Hears Arguments in First Amendment Retaliatory Arrest Case

The Supreme Court hears oral arguments today in a case testing whether a local public official was arrested in retaliation for her free speech. Here's my argument preview, from the ABA Preview of United States Supreme Court cases, with permission:

FACTS

In 2019, Sylvia Gonzalez was elected to the five-member city council for Castle Hills, Texas. (Castle Hills is a small town, with fewer than 5,000 residents, in Bexar County.) After she was sworn in, on May 14, 2019, Gonzalez, fulfilling a campaign promise, organized a nonbinding citizens’ petition that called for the removal of the city manager. More than 300 Castle Hills residents ultimately signed the petition.

At Gonzalez’s first city council meeting, on May 21, 2019, a resident submitted the petition to Mayor Edward Trevino, who sat next to Gonzalez at the meeting. A two-day “prolonged and tense discussion” ensued over the city manager’s job performance, including a number of residents who testified against the petition. One resident testified that Gonzalez “asked her to sign the petition ‘under false pretenses.’”

When the meeting ended, on May 22, Gonzalez collected her papers, placed them in her binder, and stepped away. While Gonzalez was away, Trevino peeked at her binder and waved for Castle Hills Police Captain Steve Zuniga, who was on duty at the meeting. Trevino asked Zuniga to summon Gonzalez back to the council table. Trevino then asked Gonzalez, “Where’s the petition?” Gonzalez responded, “Don’t you have it? It was turned in to you yesterday.” Trevino said he did not have the petition, and he asked Gonzalez to look in her binder. To her surprise, she found the petition in her binder, and she handed it to Trevino. Trevino said that Gonzalez “probably picked it up by mistake.”

A few days after the meeting, Trevino filed a criminal complaint alleging that Gonzalez tried to steal city records. Chief of Police John Siemens assigned the investigation to Alexander Wright, a private attorney. After a month-long investigation, Wright obtained an arrest warrant for Gonzalez for tampering with a government record, a misdemeanor. In his affidavit supporting his request for the warrant, Wright identified a possible motive: Gonzalez hoped to prevent consideration of the claim that she asked a resident to sign under false pretenses.

Upon learning of the warrant, Gonzalez turned herself in and spent a day in jail. (Gonzalez contends that Trevino, Siemens, and Wright followed a course that would ensure that she spent some time in jail, as opposed to being released pending further proceedings.)

The district attorney ultimately dismissed the charges. But burned by her experience, Gonzalez resigned from the city council and said that she will never run again for political office or organize a petition.

Gonzalez sued Trevino, Siemens, and Wright, alleging that they unlawfully arrested her in retaliation for exercising her First Amendment rights, including her right to organize the petition drive. She also alleged that prior tampering charges in the county involved situations very different from hers.

The district court denied the defendants’ motion to dismiss, but the Fifth Circuit reversed. This appeal followed.

CASE ANALYSIS

The Court ruled in 2019 that a plaintiff who alleges that officers arrested them in retaliation for protected First Amendment speech must plead and prove that the officers lacked probable cause. Nieves v. Bartlett, 139 S. Ct. 1715 (2019). Drawing on earlier cases involving retaliatory prosecutions, the Court said that this no-probable-cause rule would help courts determine when an officer arrested a plaintiff based on animus, as opposed to “the plaintiff’s potentially criminal conduct.” The Court said that this was important when officers had to decide to arrest, because those decisions involve “‘split-second judgements’ . . . and the content and manner of a suspect’s speech may convey vital information—for example, if he is ‘ready to cooperate’ or rather ‘present[s] a continuing threat.’”

But the Nieves Court left open one exception to this general no-probable-cause rule: “where officers have probable cause to make arrests, but typically exercise their discretion not to do so,” such as “jaywalking at . . . an intersection.” The Court said that in such a case “probable cause does little to prove or disprove the causal connection between animus and injury.” As a result, the Court held that a plaintiff need not plead and prove probable cause if they “present[] objective evidence that [they] were arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

Gonzalez argues first that a different test should apply. She says that the burden-shifting framework for retaliatory claims is more appropriate. Under that framework, a plaintiff must first demonstrate that their protected speech substantially motivated the government’s action against them. Then the government official carries the burden to show that they would have taken the adverse action “even in the absence of protected conduct.” Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). (Gonzalez says that Nieves and an earlier case are the Court’s only two “departures” from the Mt. Healthy framework.) Gonzalez contends that Mt. Healthy fits her case better, because the Nieves rule is specifically designed for cases when an officer made on-the-spot, time-pressured decisions, and where there is therefore “little evidence of retaliatory motive other than allegations of the officer’s state of mind.” Her case is different, she says, because the officials had time to reflect before acting. As a result, probable cause “is not any more apt to disprove causation than other probative evidence of the sort courts routinely consider under Mt. Healthy.”

Gonzalez argues next that the Fifth Circuit wrongly limited the “objective evidence” that she could use to show that she fell within Nieves’s exception to the no-probable-cause rule. She says that the Fifth Circuit only considered “evidence of non-arrests of non-critics engaging in similar allegedly arrestable behavior.” But she contends that this approach doesn’t fit her case, where the defendants “adopted an extraordinary and unprecedented interpretation of the law and applied it for the first and only time to a prominent critic.” (In other words, the traditional type of evidence that a plaintiff could use for the Nieves exception—comparisons to how officers treated similarly situated people—simply isn’t available here, because Gonzalez’s treatment was so unique.) Instead, she claims that she should “only have to produce objective evidence that the speech was the reason for the arrest,” which she did.

Gonzalez argues that the Fifth Circuit’s approach would “all but preclude First Amendment claims for retaliatory arrest.” Moreover, she says that the approach would “incentivize government officials to use inventive, pretextual arrests as their preferred means of suppressing criticism.” According to Gonzalez, this would give officers “endless opportunities . . . to use the criminal justice system to bludgeon dissenters into submission.”

The defendants counter that even under Nieves, “probable cause presumptively defeats retaliatory-arrest claims,” and that probable cause supported Gonzalez’s arrest here. The defendants point to the valid warrant that authorized Gonzalez’s arrest, and contend that the warrant “signal[s] even more strongly that suspected crime—not protected speech—prompted [the] arrest.”  They claim that limiting the general Nieves test to on-the-spot arrests makes no sense, and “would bizarrely incentivize police to arrest first and think later to avoid litigation.” And in any event, they say that “Gonzalez never connects the dots of how [the defendants’] alleged animus created her arrest given independent evidence establishing probable cause and Texas peace officers’ legal duty to report crimes.” The defendants argue that common law “confirms” these conclusions.

The defendants argue next that two exceptions do not apply here. They contend that the exception for “official municipal policies of retaliation” does not apply, because there was no “official policy” here, and because the defendants are individuals, not the municipality. They claim that the exception for “ubiquitous, minor offenses where police customarily exercise discretion not to arrest” (the Nieves exception) doesn’t apply, because even Gonzalez concedes that her arrest was based on “probable cause [of] a serious crime.” And “[i]f [the] exception applies even to serious crimes, that limited exception would obliterate the probable-cause bar, and officers would be exposed to easily pled retaliation claims for virtually any arrest whenever plaintiffs offer any objective evidence.” 

Next, the defendants argue that even if the Nieves exception applies “to arrests pursuant to warrants for non-endemic crimes,” Gonzalez did not satisfy it. For one, they claim that Gonzalez did not produce “comparator evidence”—“objective evidence that [the plaintiff] was arrested when otherwise similarly situated individuals” weren’t. They contend that the instances she did produce (other tampering-with-documents prosecutions under Texas law) were inapt, and “only underscore[] that officials do enforce Texas’s statute.” And they assert that Gonzalez’s broader evidence of animus (for example, the defendants’ actions designed to put her in jail) “have no bearing on whether alleged animus caused the arrest.”

Finally, the defendants argue that their approach does not “invite[] tyranny,” as Gonzalez contends. They say that “[p]laintiffs arrested without probable cause can sue,” and that “[o]ther remedies deter rogue arrests.” Despite the Court’s most recent “reject[ion] [of] any retaliation claims against federal officials, including for arrest with probable cause or without warrant” in Egbert v. Boule, 596 U.S. 482 (2022), and “[c]ontrary to Gonzalez’s rhetoric, freedom still reigns.”

The government weighs in to make three points. First, the government asserts that “the no-probable-cause requirement is an aspect of a constitutional damages tort—not the First Amendment itself.” Morever, “nothing in Nieves transforms the requirement into a limitation on First Amendment rights.” The government asks the Court to make this clear, so that “the Nieves rule does not apply to alternative mechanisms for enforcing constitutional rights under federal and state criminal and civil statutes, which contain their own separate limits.”

Next, the government argues that the lower court “misconstrued Nieve’s ‘narrow qualification’ to the ‘general[]’ no-probable-cause rule” with regard to the form of the evidence a plaintiff must proffer. The government says that plaintiffs can use evidence other than “that other similarly situated individuals engaged in identical (but nonexpressive) conduct but were not arrested,” and it provides examples. (This argument complements Gonzalez’s parallel argument.) The government contends that the Fifth Circuit’s narrower approach to evidence “would inappropriately leave plaintiffs without a [constitutional] remedy in otherwise-meritorious cases where the evidence to satisfy that requirement takes a different form.”

Finally, the government asserts that Nieves “applies just as much to deliberative arrests as to on-the-spot ones.” (This argument opposes Gonzalez’s first argument, that the Court should apply Mt. Healthy, not Nieves.)

SIGNIFICANCE

This case tests whether and how Nieve’s exception to the no-probable-cause rule applies to an unusual arrest over a month after the protected speech. If the Court affirms the Fifth Circuit’s approach, as Gonzalez and the government argue, the ruling could effectively leave plaintiffs who have been arrested in unusual circumstances without a remedy for retaliation claims. That’s because, by definition, any plaintiff subject to an unusual arrest could not produce evidence of other, similar non-arrests to fit within the exception.

But on the other hand, if the Court rules that the no-probable-cause rule only applies to on-the-spot arrests, as the defendants argue, this could “bizarrely incentivize police to arrest first and think later to avoid litigation.” That’s because officers would move to arrest on the spot, in order to trigger the rule, even if they didn’t need to or shouldn’t have. If the Court rules that the Nieve’s exception to the no-probable-cause rule applies to serious crimes, this could effectively “obliterate the no-probable-cause bar.”

Fifth Circuit Halts S.B. 4, for now

The Fifth Circuit lifted its earlier administrative stay, allowing Texas's S.B. 4 to go into effect, at least for now. The move came shortly after the Supreme Court allowed the administrative stay to remain in place, thus allowing Texas to enforce S.B. 4, at least temporarily.

The back and forth is all preliminary. The Fifth Circuit will hear oral arguments tomorrow, March 20, on the state's motion to stay the district court injunction against S.B. 4 pending appeal. And even that's technically preliminary, even though the ruling on that motion will likely telegraph the court's ultimate ruling on the merits of S.B. 4.

Recall the district court enjoined enforcement of S.B. 4 and declined to stay the ruling pending appeal. The state moved the Fifth Circuit for a stay pending appeal (that's the motion that'll be heard tomorrow), but in the meantime issued an administrative stay. The Supreme Court yesterday left the administrative stay in place. Today's order by the Fifth Circuit lifts the administrative stay. Oral argument on the state's original motion for a stay pending appeal is tomorrow. Oral argument on the merits is April 3.

High Court Lets Texas Run its own Immigration Policy, for now

The Supreme Court today allowed Texas's S.B. 4, the state's effort to regulate immigration, to go into effect, at least temporarily. The ruling came with no explanation from the Court, though several justices wrote separately (as below).

The cases, United States v. Texas and Las Americas Immigrant Advocacy Center v. McCraw, test Texas's S.B. 4. That provision makes it a state crime for unauthorized noncitizens to enter or reside in Texas, and gives state courts the authority to remove unauthorized noncitizens without regard to federal immigration proceedings.

In short, S.B. 4 pretty plainly runs up against Arizona v. United States and federal supremacy over immigration enforcement.

And that's exactly what the district court said. The district court halted enforcement of the measure and declined to stay its injunction pending appeal. This meant that Texas couldn't enforce S.B. 4 as it pursued its appeal to the Fifth Circuit.

Texas asked the Fifth Circuit for a stay of the district court's order pending appeal. That would've allowed the state to enforce S.B. 4 during its appeal to the Fifth Circuit.

The Fifth Circuit deferred consideration of Texas's motion, however, and instead issued a "temporary administrative stay." An administrative stay is usually just a docket-management device that allows a court to pause an action for a short time while it considers a motion for a stay pending appeal (which requires legal analysis, including an analysis on the merits, and therefore a little more time). An administrative stay requires no legal analysis.

Justice Alito, as circuit justice, previously stayed the lower court's administrative stay, thus preventing Texas from enforcing S.B. 4. But the Court today denied the government's motion to vacate the Fifth Circuit's administrative stay.

This means that Texas can enforce S.B. 4 as long as the Fifth Circuit's administrative stay remains in effect. We don't know how long that could be. As Justice Sotomayor reminds us, "[t]he Fifth Circuit recently has developed a troubling habit of leaving 'administrative' stays in place for weeks if not months." (Remember: administrative stays are supposed to be short-term docket-management devices.) The Fifth Circuit expedited the appeal and deferred Texas's motion for a stay pending appeal to the merits panel. But given the Court's ruling today, the Fifth Circuit, which through its administrative stay already telegraphed its thoughts on S.B. 4, has no reason to move quickly.

In other words, it looks like the Fifth Circuit could be using an administrative stay as an end-run around the legal analysis required for a stay pending appeal, but yet to achieve the same result as a stay pending appeal. And it looks like the Supreme Court fell for the gambit. The upshot is that Texas can enforce a pretty plainly unconstitutional law--with significant implications for immigration enforcement, federalism, and international relations--as long as the Fifth Circuit wants to drag its feet on a ruling on the merits (either in a ruling on Texas's motion for a stay pending appeal, or on the appeal itself).

Justice Barrett, joined by Justice Kavanaugh, concurred, but warned that "[t]he time may come, in this case or another, when this Court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly." "But at this junction in this case, that conclusion would be premature."

Justice Sotomayor, joined by Justice Jackson, dissented, detailing the many legal and practical problems with the Court's ruling. "The Court gives a green light to a law that will upend the longstanding federal-state balance of power and sow chaos, when the only court to consider the law concluded that it is likely unconstitutional."

Justice Kagan separately dissented, arguing that the Court should vacate the stay under the stay-pending-appeal standard, whether the Court calls the Fifth Circuit's stay an administrative stay or a stay pending appeal. That's because on the merits, "the subject of immigration generally, and the entry and removal of noncitizens particularly, are matters long thought the special province of the Federal Government."