Wake Forest Law Review

By Michael Johnston

When Shawn Ellis extended his middle finger while riding in the passenger seat of a vehicle on U.S. Highway 52, he likely did not know that he would become involved in the latest of a string of appellate cases on the First Amendment.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech . . . .”[1] Freedom of speech under the First Amendment was incorporated against the states via the Fourteenth Amendment, limiting the ability of the states to restrict freedom of speech under the United States Constitution.[2] Expressive conduct outside of verbal speech can also merit First Amendment protections if there is an intent to convey a particularized message and there is a great likelihood that the message will be understood by those who view it in the surrounding circumstances.[3]

The extension of one’s middle finger, colloquially known as shooting or flipping the bird,[4] has a long history of being used to express emotions ranging from anger and protest to comfort and familiarity.[5] While this gesture can be used to express contempt, several courts have been reluctant to conclude that the middle finger gesture falls into a category of unprotected speech that can be prosecuted.[6] For example, the Sixth Circuit recently determined that a police officer did not have reasonable suspicion or probable cause of criminal activity to stop plaintiff a second time simply because she extended her middle finger after the first stop.[7] The court reasoned that the plaintiff violated no identified law and that “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”[8]

Fighting words, however, are one exception to the First Amendment; they are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[9] The Supreme Court further explained that fighting words are not essential to the discussion of ideas, and any benefit to the social discourse derived from them is outweighed by society’s interest in morality and order.[10] Despite the expressive value of extending one’s middle finger, courts are more willing to conclude that the gesture can support a disorderly conduct charge if there are other disruptive circumstances or if a third party can testify that they felt offended or threatened.[11] For example, the Third Circuit held that a police officer had probable cause to charge plaintiff with disorderly conduct under the totality of the circumstances, namely the plaintiff’s display of his middle finger and aggressive driving directed at another driver on the road.[12] With additional disruptive circumstances, a court is more likely to conclude that the speech constitutes fighting words and that the person using such speech can be charged with disorderly conduct.[13] For expressive purposes, disorderly conduct statutes have been limited by the Supreme Court to the proscription of fighting words.[14]

In State v. Ellis,[15] the defendant was stopped by a police officer after the officer observed the defendant extending his middle finger in the officer’s general direction.[16] The defendant was initially using a waving gesture as his vehicle drove past the stopped officer, but after the defendant’s vehicle passed the officer, the defendant changed his gesture to an extended middle finger.[17] There were other vehicles moving down the highway near the defendant’s vehicle.[18] In its initial opinion, the North Carolina Court of Appeals concluded that this conduct was sufficient for an officer to have reasonable suspicion of disorderly conduct.[19] The panel then withdrew its initial opinion and substituted it with another opinion; the panel majority clarified that the officer had reasonable suspicion of disorderly conduct because there was an objective basis to believe that the defendant’s gesture could have been directed at a third party and that the changing gestures suggested that the potential disorderly conduct was escalating.[20] While the court noted cases concluding that giving a middle finger to law enforcement is protected by the First Amendment, the court distinguished them by concluding that the possibility that defendant’s middle finger could have been directed at a third party was a sufficient basis for reasonable suspicion for disorderly conduct.[21] According to the court, this reasonable suspicion justified the stop and later justified the defendant’s charge and conviction of resisting, delaying, or obstructing a public officer for failing to provide his identification.[22]

The standard for a police officer to conduct a traffic stop is reasonable suspicion of criminal activity,[23] which is a lower standard than probable cause of criminal activity.[24] For reasonable suspicion, the police officer must, under the totality of the circumstances, have specific and articulable facts supporting a suspicion of criminal activity.[25] An innocent explanation for suspicious conduct does not defeat reasonable suspicion,[26] and innocent conduct can contribute to reasonable suspicion under the totality of the circumstances.[27]

However, as the dissenting opinion notes, the majority’s opinion in Ellis seems to disregard the First Amendment protections for defendant’s speech.[28] There is a sizeable amount of authority from around the United States concluding that extending one’s middle finger in the presence of third parties does not constitute disorderly conduct under the First Amendment.[29] Furthermore, there is also authority concluding that simply displaying one’s middle finger is insufficient for reasonable suspicion of criminal activity under the First Amendment.[30] In both Cruise-Gulyas v. Minard[31] and Ellis, for example, an officer stopped someone after they displayed their middle finger in the direction of the officer.[32] While the Sixth Circuit concluded that the officer in Cruise-Gulyas lacked reasonable suspicion to stop the plaintiff in response to the gesture under the First Amendment, the court of appeals in Ellis distinguished Cruise-Gulyas on the basis that it was unclear whom the gesture was directed at in Ellis, even though it seems unlikely that there were no other drivers on the street who might have seen the gesture in Cruise-Gulyas.[33] Just as there was no reasonable suspicion of criminal activity and “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment” in Cruise-Gulyas,[34] the same should be true in Ellis. Furthermore, other courts have viewed the middle finger as sufficient for reasonable suspicion or probable cause of criminal activity only when there are other disruptive circumstances associated with the conduct or a third party can testify that they felt offended or threatened.[35] Unlike in Favata v. Seidel,[36] there were no other disruptive circumstances in Ellis, such as reckless driving, to justify reasonable suspicion or probable cause of disorderly conduct.[37] The Ellis opinion does find some support in North Carolina case law, but one of the more helpful cases for the Ellis opinion is also likely inconsistent with other authorities interpreting the First Amendment.[38]

On a practical note, the Ellis opinion will give law enforcement broader discretion to stop people, even if the stops are only motivated by personal animus. While the motivation of an officer might not be legally relevant when determining whether the officer had reasonable suspicion,[39] such stops can undermine community faith in law enforcement.[40] To justify such a stop, an officer would only need to claim that the offensive conduct of the defendant occurred in the presence of a third party. As in Ellis, the State would not need to provide evidence that the third party was actually offended by the gesture or even observed the gesture.[41] If the analysis of this question focused purely on reasonable suspicion standards under North Carolina law, this outcome might be logical due to the lower standard required for reasonable suspicion. However, in light of the protections for expressive conduct under the First Amendment, law enforcement officers stopping someone simply for using expressive, albeit distasteful, conduct in the presence of others is inconsistent with our constitutional freedoms and history.[42] Given our nation’s long history of protecting dissident speech under the First Amendment even when it happens to be offensive, extending a middle finger should not be a criminal offense, and it should not be treated as reasonable suspicion of a criminal offense simply because a third party might have seen it.

Mr. Ellis is in the process of appealing the panel’s decision.[43] In light of this appeal, the North Carolina Supreme Court should establish that the First Amendment protects expressive conduct in the form of extending a middle finger in public.


[1] U.S. Const. amend. I.

[2] U.S. Const. amend XIV, § 1; see Stromberg v. California, 283 U.S. 359, 368–70 (1931); Gitlow v. New York, 268 U.S. 652, 666 (1925).

[3] See Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 411–12 (1974)).

[4] See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1405–06 (2008).

[5] See id. at 1407–10.

[6] See Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir. 2013) (holding that traffic stop was not lawful because plaintiff giving officer middle finger while riding in vehicle did not create a reasonable suspicion of criminal activity); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) (holding that vehicle passenger’s use of profanity and display of middle finger to police officer protected by the First Amendment); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); Brown v. Wilson, No. 1:12-CV-1122-DAE, 2015 U.S. Dist. LEXIS 88871, at *8–14 (W.D. Tex. July 9, 2015) (holding that plaintiff’s middle finger to police officer while driving was not in violation of Texas’s disorderly conduct statute and did not fall under the fighting words exception to the First Amendment because there was no indication of actual or threatened violence tending to incite an immediate breach of the peace); Corey v. Nassan, No. 05-114, 2006 U.S. Dist. LEXIS 68521, at *23–37 (W.D. Pa. Sept. 25, 2006) (holding that plaintiff’s alleged raising of his middle finger to police officer while driving was protected by the First Amendment in part because of the absence of “some particularized showing that the gesture in the specific factual context constitutes ‘fighting words’ or is otherwise illegal”); Perkins v. City of Gahanna, No. C2-99-533, 2000 U.S. Dist. LEXIS 23209, at *5–11 (S.D. Ohio Sept. 21, 2000) (holding that plaintiff’s display of middle finger to police officer as he was leaving a police station was protected by the First Amendment and not disorderly conduct); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1101, 1110 (W.D. Ark. 2000) (holding that officer improperly charged plaintiff with disorderly conduct after officer observed plaintiff display his middle finger while driving because the disorderly conduct statute, Ark. Code Ann. § 5-71-207(a)(3), was limited to fighting words and the display of one’s middle finger did not constitute fighting words); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Cook v. Bd. of the Cty. Comm’rs, 966 F. Supp. 1049, 1052 (D. Kan. 1997) (holding that “the Court cannot infer that a reasonable police officer would necessarily believe that plaintiff was engaged in disorderly conduct or that — in light of clearly established law and the information known to Officer Drake — a reasonable police officer would have had probable cause to arrest plaintiff and charge him with disorderly conduct in violation of Kansas Law” when plaintiff displayed his middle finger while driving past officer’s parked patrol car); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct under the First Amendment, only criminalized fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); In re Fechuch, No. 2005 AP 02 0012, 2005 Ohio App. LEXIS 3941, at *3–9 (Ohio Ct. App. Aug. 16, 2005) (holding that there was insufficient evidence to support defendant’s conviction for disorderly conduct because defendant’s use of profanity and her middle finger did not constitute fighting words under the First Amendment as they were not inherently likely to provoke a violent reaction from the ordinary citizen); Coggin v. State, 123 S.W.3d 82, 87–88, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[7] See Cruise-Gulyas, 918 F.3d at 497.

[8] See id.

[9] See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (footnote omitted).

[10] See id.

[11] See Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); City of Akron v. Lorenzo, No. 20475, 2001 Ohio App. LEXIS 4327, at *8 (Ohio Ct. App. Sept. 26, 2001) (holding that it was not a manifest miscarriage of justice for a trial court to find defendant guilty of disorderly conduct under fighting words exception because defendant repeatedly shouted profanities at officers and displayed his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words); In re S.J.N-K., 647 N.W.2d 707, 711–13 (S.D. 2002) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct under the fighting words exception after defendant repeatedly displayed middle finger and mouthed profanity to school principal while following principal in car); Estes v. State, 660 S.W.2d 873, 874–75 (Tex. App. 1983) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct after defendant displayed his middle finger to high school principal and principal resisted “animal instinct to retaliate” because the gesture could have constituted fighting words to an average person).

[12] See Favata, 511 F. App’x at 156–57, 159–60.

[13] See, e.g., Wood, 679 N.E.2d at 739–40 (holding that defendant’s conviction for disorderly conduct proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[14] See Gooding v. Wilson, 405 U.S. 518, 527–28 (1972); State v. Summrell, 192 S.E.2d 569, 574–76 (N.C. 1972), overruled in part on other grounds in State v. Barnes, 380 S.E.2d 118, 119 (N.C. 1989).

[15] No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019) petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019). While this case was officially filed for publication by the North Carolina Court of Appeals on August 20, 2019, it has not been given an official reporter designation at the time of this publication.

[16] Id. at *7–8.

[17] Id.

[18] Id. at *6.

[19] N.C. Gen. Stat. § 14-288.4(a)(2) (2017); State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 628, at *6–8 (N.C. Ct. App. Aug. 6, 2019), withdrawn (Aug. 13, 2019), modified, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[20] Ellis, 2019 N.C. App. LEXIS 713, at *9–11.

[21] Id.

[22] See id. at *9–12.

[23] See State v. Barnard, 658 S.E.2d 643, 645 (N.C. 2008).

[24] See State v. Johnson, 803 S.E.2d 137, 139 (N.C. 2017).

[25] See Terry v. Ohio, 392 U.S. 1, 20–22 (1968); State v. Styles, 665 S.E.2d 438, 443–40 (N.C. 2008).

[26] See United States v. Arvizu, 534 U.S. 266, 277 (2002); State v. Williams, 726 S.E.2d 161, 167 (N.C. Ct. App. 2012).

[27] See United States v. Sokolow, 490 U.S. 1, 9–11 (1989); Terry, 392 U.S. at 22.

[28] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *22 (N.C. Ct. App. Aug. 20, 2019) (Arrowood, J., dissenting), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[29] See Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct, only criminalizes fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); Coggin v. State, 123 S.W.3d 82, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[30] See, e.g., Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Sandul, 119 F.3d at 1255.

[31] 918 F.3d 494 (6th Cir. 2019).

[32] See id. at 497; Ellis, 2019 N.C. App. LEXIS 713, at * 7–8.

[33] See Cruise-Gulyas, 918 F.3d at 495–97; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[34] See Cruise-Gulyas, 918 F.3d at 497.

[35] See, e.g., Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[36] 511 F. App’x. 155 (3d Cir. 2013).

[37] See id. at 156–57, 159–60; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[38] See In re V.C.R., 742 S.E.2d 566, 568, 570–71 (N.C. Ct. App. 2013) (holding that officer had reasonable suspicion to seize teenage defendant for disorderly conduct under N.C. Gen. Stat. § 14-288.4(a)(2) after officer began driving away and defendant said, “What the fuck, man?”). It is unlikely that a reasonable person would sincerely believe that a teenager’s use of what was likely rhetorical profanity amongst friends would be plainly likely to provoke violent retaliation and thereby cause a breach of the peace. Furthermore, such speech is likely protected by the First Amendment. Compare id., with Cruise-Gulyas, 918 F.3d at 497 (holding that officer’s second stop of plaintiff after plaintiff extended her middle finger was not based on reasonable suspicion of any criminal act and that plaintiff’s gesture was protected under the First Amendment).

[39] See Whren v. United States, 517 U.S. 806, 813 (1996); State v. Nicholson, 813 S.E.2d 840, 846 (N.C. 2018).

[40] See Albert J. Reiss, Jr., The Police and the Public 175–76 (1971).

[41] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *2–3 (N.C. Ct. App. Aug. 20, 2019); id. at *22 (Arrowood, J., dissenting).

[42] See, e.g., Texas v. Johnson, 491 U.S. 397, 414 (1989); Cohen v. California, 403 U.S. 15, 25–26 (1971).

[43] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

Friday, January 31, 2020

8:45 a.m. to 3:00 p.m.

Wake Forest University School of Law, Room 1312

CLICK HERE TO REGISTER NOW

CLE Credits: Provided Pending Approval

This event is free and open to the public.

Live Stream

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Parking

A campus parking map can be found here. Reserved parking will be available for registered symposium attendees near the Wake Forest School of Law. Please check back before the event for specific parking instructions. Signs will be posted at the approved parking lots to guide visitors to the event.

Event Description

The Wake Forest Law Review is hosting its annual Spring Symposium on January 31, 2020 regarding pretrial detention and bail reform at the Wake Forest University School of Law. This topic is scheduled to elicit leading scholars on the subject from around the country as well as other important stakeholders in North Carolina and elsewhere.  The Symposium is set to shed light on the large, yet often unaddressed problem of pre-trial detention in the United States.

The scope of pretrial detention in America is significant: More than half a million people sit in jail at any given time in America because they have been merely accused of a crime.  Such broad pretrial detention deprives people of their liberty before being afforded significant process, undermines the presumption of innocence, increases crime, and wastes tax dollars by locking up a lot of people who are not dangerous. Direct cost estimates for our current state of widespread pretrial detention range between nine and twelve billion dollars per year.  And those numbers do not account for the loss of human flourishing that pretrial detention inflicts, including loss of employment and housing as well as defendants’ lost contributions to economic growth or to tax bases.  For defendants who are the primary wage earners in their family, widespread use of pretrial detention leaves families to fend for themselves and depend more heavily on public assistance.  Moreover, recent empirical evidence demonstrates that defendants detained pretrial are more likely to be convicted than those released pretrial and are likely to serve longer postconviction sentences.

The symposium will bring together criminal law stakeholders, academics, and community groups to discuss the current state of bail reform and how to continue reforming these systems.  With each panel our aim is to combine theory with an understanding of facts on the ground regarding various aspects of pretrial detention and from various places across the country.  We hope that you will be able to join us for this event.  A light breakfast will be provided, and CLE credit is available.  

9 Wake Forest L. Rev. Online 53

Lynn S. Branham*

This Essay enumerates three reasons for abandoning the prevailing practice of utilizing the label “offender” when referring to a person who has committed a crime.  The Essay next identifies and debunks reasons that have been cited for persisting in referring to a person as an “offender.”  The Essay then explores the question of what term or terms could supplant this label and profiles signs of emerging support for desisting from the convention of calling people “offenders.”  One of the themes that permeates this Essay is that the language we use when referring to people can thwart systemic and cultural change – in this context, a change in how people who have committed a crime are viewed and treated, both within the criminal-justice system and by society at large.

For years, I had no compunction about calling people in the criminal-justice system “offenders.”  References to “offenders” were sprinkled throughout my writings, both my books and articles.  Then my world changed. 

Embarking on studies for a Master of Science in Restorative Practices, I began delving deeply into a construct unlike any typically encountered in the world of law, policy, procedures, and programs in which I have been immersed throughout my career as a law professor and criminal-justice reformer.  In this new construct marked by what are termed “restorative practices,”[1] a person who causes harm to someone else can learn about the depth and breadth of that harm during a facilitated dialogue with the person harmed and others who offer insights and feedback about the nature and gravity of the harm.  The group of people gathered together then identifies what steps the person responsible for the harm needs to take to help remedy it.  “Restorative justice” is the term used when referring to this reparative function of restorative practices.[2]  Often, though, restorative practices are utilized proactively – to avert conflict and harm and build and strengthen relationships.[3]  In sum, whether implanted in criminal-justice systems, juvenile-justice systems, schools, workplaces, or other realms of human activity and interaction, restorative practices offer the mesmerizing possibility of prioritizing harm reduction and repair, relationships, reconciliation, and healing.

In exploring the far-reaching potential of restorative practices, I have come to recognize the discordance, though, between its aims and some of the terminology employed by those of us in the field of restorative practices.  While all people share a responsibility to refrain from using words that inflict harm on others, those who endorse restorative practices would, one would think, more readily and intentionally model how to carry out that responsibility.  Instead, we continue to employ a harm-inflicting label when referring to a person who has committed a crime.  We choose to follow the convention of calling that person an “offender” instead of choosing to lead by our example.

Part I of this Essay enumerates three of the principal reasons for abandoning the prevailing practice of labelling people as “offenders.”  First, the practice harms those who are the object of this label.  Second, pigeonholing someone as the “offender” contravenes values that lie at the core of restorative practices.  And third, the onus cast by this stigmatizing label is an impediment to the systemic and cultural change for which the proponents of restorative practices are advocating and striving.  These reasons not only counsel the abandonment of this terminology by those whose work centers on restorative practices but also support the jettisoning of this label across society, including by judges, criminal-justice officials, and members of the media.

Part II of the Essay identifies and then debunks what some restorative practitioners have espoused as reasons why they persist in referring to a person as an “offender.”  Part III then explores the question of what term or terms could supplant the term “offender.”  After profiling in Part IV the decisions of what, at this point, is a small cadre of criminal-justice officials to abandon the practice of calling people “offenders,” the Essay concludes with an invitation to join those of us choosing to desist from calling people a name that is injurious, the verbal equivalent of a scarlet letter, and antithetical to core restorative values.

I.  REASONS TO DISCARD THE TERM “OFFENDER”

A.    Reason #1: Halting the Harmful Impact on Those Referred to as “Offenders”

When trying to ascertain whether a term we use when referring to someone is injurious, the starting point is the people subject to that term.  When grappling after the commencement of my restorative-practices studies with the implications and effects of my own and others’ use of the term “offender,” I spoke to two of those individuals.[4]  Both are in higher education, one at a university and the other at a law school.  Both work extensively with, and on behalf of, people within the criminal-justice system.  And both have homicide convictions for which they were previously imprisoned.  These two men, whose identities I will keep confidential, were in unison in describing how denigrating – how dehumanizing – it feels to be referred to as “offender” or “ex-offender.”  One reported that these words made him feel like an “inanimate object.”  The other confided: “The label is like the ‘N’ word.  It impacts you negatively.”  He added that being typecast as an “offender” imparted the message that he “deserved the condemnation of society no matter what he did” now.

Stigmatizing labels can also have pernicious effects on others, negatively altering how they perceive and treat people who are the objects of the labels.  For example, when undergraduate students, professional counselors, and counselors-in-training were surveyed in one study, they were more likely to support isolating those alluded to as “the mentally ill” from others in the community than they were when these individuals were referred to as “people with mental illnesses.”[5]  A concern emanating from studies like this one is that the pejorative label “offender” will trigger the proverbial “vicious cycle” in which condemnatory attitudes and pariah-like treatment fostered by that label propel some of those labeled “offender” to act in conformance with it, further fueling reliance on the opprobrium-casting label.

Most of the criminal-justice and restorative-practices experts from whom I also elicited feedback about the term “offender” during my graduate studies mirrored these concerns.  A common theme that suffused this feedback aligned with what one of the individuals who has been on the receiving end of this label had said to me earlier: “People are more than whatever they did.”  For example, the director of a nonprofit legal organization in Illinois that represents people in prison decried the denomination of people as “offenders,” calling this label “offensive as it defines people by the worst day of their lives, rather than as whole people.”[6]  A Research Scholar at Yale Law School (now a federal public defender) also objected to the debasement of others through what she considered “dehumanizing” and “reductive” language that suggests that they are “inherently bad.”[7]  The terms “offender” and “ex-offender,” she noted, “define an entire human being by a single bad act.”[8]

Research has confirmed what others have experienced, witnessed, or intuited about stigmatizing labels – that they have harmful effects on those who are their objects.  They evoke shame and color the labeled individuals’ self-perceptions.[9]  The people subject to a negative label begin to perceive themselves in ways that accord with that label.

The corrosive effects of stigmatizing labels are not solely internal, however, as concerning as those internal effects might be.  The cultivation of negative stereotypes through the aspersions cast by stigmatizing labels also has overt, discernible adverse impacts.  The labels heighten the risk, for example, that people will act in accordance with those stereotypes about them, a phenomenon psychologists refer to as a “self-fulfilling prophecy.”[10]  Thus, when females take a math test in a setting in which they know they are perceived by others as less competent in this subject, they will not perform as well as they do in an environment not pervaded by this stereotype.[11]

Against the backdrop of such research, hearing others banter about “offenders” might, one would think, trigger not just cringes, but alarm.  Calling people by a name that, they report, makes them feel “subhuman” and like “an animal” might lead some of them, one might reasonably postulate, to behave in ways that correspond with others’ conveyed perception of them – that their past crime has made them, forever, a beast in society’s eyes.  As a former judge with expertise in restorative practices said to me about the parallel label “criminal,” “If we call them criminals long enough, they will believe it.”[12]  And, I might add, they may act like it.  Researchers have found that the labeling of a person as a delinquent or criminal increases the risk of reoffending.[13]

B.    Reason #2: Acting in Accord with the Values Embedded in Restorative Practices

In a world in which cost-benefit analyses abound, invoking values as a touchstone for decision-making might seem, to some, a bit touchy-feely.  But restorative practitioners have unabashedly acknowledged that values provide the bedrock – the underpinning – for restorative practices and justice.[14]  New Zealand’s Ministry of Justice, for example, considers the recognition of the values and virtues underlying restorative justice to be a “best practice.”[15]  The alignment of “standards of practice” with those values constitutes another best practice.[16]

Examining what are touted as restorative values, though, reveals a great disconnect between many of those values and the practice of calling someone “offender.”  For example, according respect to others is a value that the restorative community trumpets.[17]  Criminologist Howard Zehr, considered one of the pioneers of restorative justice, has, in fact, singled out “respect for all” as the premier restorative value, one that transcends all others.[18]  Explaining that without respect, justice cannot be restorative, Zehr cites not only the need to view people with respect but to also treat them with respect.[19]  And therein is the rub.  Calling people with criminal convictions a name they find “deeply offensive”[20] – a verbal branding of sorts from their perspective – is the antithesis of the respect that, we are told, undergirds restorative practices.

Experts in restorative practices describe “interconnectedness” as another foundational value underpinning restorative practices.[21]  This value reflects the recognition that, as Zehr has noted, “we are all connected to each other” and are adversely affected by disruptions in this “web of relationships.”[22]  This value propels restorative practices towards inclusion.  Due to our interconnectedness, excluding others is considered “literally throwing away a part of ourselves.”[23]  Yet by using the derisive label “offender” when speaking to or about another person, our speech becomes a means of exclusion, in derogation of restorative precepts.  This process of viewing and labelling a category of individuals as different in a way that makes them inferior to ourselves is known as “othering.”[24]  By exerting what has been termed “stigma power,”[25] we are, though perhaps unwittingly, helping to keep those pegged as “offenders” down and away rather than fully connected with us and others.[26] 

Categorizing people as “offenders” abridges other values identified as bedrocks of restorative practices.  To cite but one more example here, restorative practices is grounded on a value that some in the field of restorative practices describe as “hope”[27] and others as “transformation.”[28]  Whatever the name ascribed to this value, the premise is that we can all grow, heal, and change for the better.  A label like “offender” that suggests, to some and likely many people, that a person is “inherently bad” is at odds with this premise.[29]

C.    Reason #3: Removing an Impediment to Systemic and Cultural Change

The words we utter, sometimes none too carefully, make a difference.  They can have an impact, either positive or negative, on the individuals with whom we are conversing.  They can affect the dynamic within our families and workplaces, fueling discord or fostering harmony.  And they can have culture-producing and culture-changing effects, affecting not only the tenor of our conversations but how we view and treat others within our society. 

Research, including in the fields of neurophysiology and cognitive neuroscience, points to a linkage between the language we employ and our thoughts – how we perceive and categorize other people or things.[30]  In short, “the words we use to describe what we see . . . actually determine what we see.”[31]  If anyone doubts this truth, consider how likely it would be that people with intellectual disabilities – people who are “differently-abled” – would be integrated and welcomed into classrooms, workplaces, sports, and elsewhere were they still called, as they once were, “imbeciles” and “retards.”[32]

I shared my view, born of experience and buttressed by research, about the power of words when speaking with one of the persons mentioned earlier who has a criminal conviction about what it feels like to be called “offender.”  His concurring response captured that power: “We can’t change systems without changing our language.” 

The proponents of restorative practices, of which I am one, profess that we are striving to create a “new reality,”[33] one no longer marked by fractured relationships, unrepaired harm, and barriers that divide and injure us all.  We are seeking, in short, nothing less than systemic and cultural change.  If we and others who decide to join in this endeavor are serious about effectuating this change and not just posturing, the words we use will, as has occurred when referring to people with disabilities, need to match our vision.

II.  RATIONALES FOR THE LABEL “OFFENDER”

One of the reasons why the use of the term “offender” remains so prevalent in the field of restorative practices, as well as within criminal-justice systems and in general conversations, is that it has become an entrenched practice – a norm.  As the International Institute for Restorative Practices noted when explaining why its books and training materials are replete with references to “offender,” the term “offender” is “simply the language that has been traditionally used in restorative justice.”[34]  That is true.  But, of course, that leaves open the question of why those who subscribe to restorative precepts continue to follow this tradition.  The “this is the way we have always done it” argument for continuing to employ anti-restorative language seems incongruent for those on the frontlines of working to uproot the status quo in criminal-justice systems through the importation of restorative practices into them. 

So behind the citation to tradition as the reason for continuing to call people “offenders” must lurk some other explanation for the reticence to abandon what many consider a disparaging term.  One reason asserted for utilizing the word “offender” as a descriptor in the criminal-justice context is the ease of using that term.[35]  Personal convenience, though, is hardly the end-all of linguistic practices.  Thus, in other instances, the ease of attaching a certain label to a category of individuals has given way to the transcendent values served when declining to call people a name they consider debasing.  “African American” and “person of color” are, for example, more unwieldy terms than “Negro,” yet they have largely supplanted this simpler term considered offensive by many. 

Those inured to the term “offender” have also remonstrated that the word is not intended as “a label” and that they would never call someone “offender” to his or her face.[36]  Why this latter argument could have any force eludes me.  If the convention today was still to follow the opprobrious past practice of referring to people with intellectual disabilities as – it gives me pause to even utter this word – “retards,” the damaging effects of this terminology would not hinge on whether we called people “retards” to their faces or behind their backs.  Regardless of to whom we uttered this disparaging word, referring to people as “retards” would harm both we, the speakers, and our audience, detracting from the ability of all of us to recognize, respect, and embrace the full humanity of the people we have typecast in such a derogatory way.  And if, as occurs with the word “offender,” our writings, speeches, media interviews, and conversations were littered with the denigrating descriptor “retard,” we would be deluding ourselves in pretending that those who are the object of our derogatory label are unaware of, and not harmed by, it.

A final reason, shared with me by a fellow graduate student, for continuing to refer to someone who caused harm or committed a crime as the “offender” is that this label is “accurate.”[37]  However, one of the credos of restorative practices belies the verity of this point.  Those who work in the field of restorative practices underscore that it is important to “separate the deed from the doer.”[38]  This maxim reflects the conviction that while our actions at times warrant condemnation, we remain human beings, albeit imperfect ones.  Contrary to the aspersions cast by the label “offender,” we remain more – much more – than just the sum of our misdeeds. 

III.  REPLACEMENT TERMS FOR THE LABEL “OFFENDER”

Abandoning the pejorative label “offender” leaves unresolved what the replacement term or terms would be.  One formerly incarcerated person, Eddie Ellis, has entreated us to call individuals like him what they are – people: “[W]e are asking everyone to stop using these negative terms and to simply refer to us as PEOPLEPEOPLE currently or formerly incarcerated, PEOPLE on parole, PEOPLE recently released from prison, PEOPLE in prison, PEOPLE with criminal convictions, but PEOPLE.”[39] Other variants with a personhood focus abound, such as, on the aggregate level, “people who caused the harm” and, on the individual level, “the person who caused the harm.”

I once thought that it was incumbent on me to find “the term” to recommend for infusion into restorative practices, criminal-justice systems, and everyday parlance.  But I have since realized that there is not just a single suitable replacement term for the label “offender.”  As Ellis’s fervent plea illustrates, a replacement term may be, or need to be, contextually based.  When referencing a restorative-justice conference, the “person who caused the harm” might be most apropos.  When discussing the challenges faced when returning to a community after confinement in prison, on the other hand, the appropriate phraseology might be a “person formerly incarcerated,” “returning citizen,”[40] or some other term that does not, unlike the words “offender” or “ex-offender,” depreciate or abnegate someone’s humanness.  And when discussing the loss of voting and other rights triggered by a criminal conviction, the discussion might center on the curtailment of the rights of “people convicted of a crime.”

There remains, though, the anticipated objection that all these replacement terms are more cumbersome than the pat term “offender” or its derivative “ex-offender.”  One rejoinder, mentioned earlier, to this objection is that the lure of simplicity, while understandable, should not usurp more fundamental interests and needs, such as the need to avoid inflicting harm through one’s words. 

A second counterpoint to this objection is that the concern that replacement terms for “offender” are too long, unwieldy, and impractical is exaggerated.  One of the touted replacement terms, “person who caused harm,” has, for example, only two more syllables than the word “offender.”  Those two syllables are, in the words of a fellow law professor with expertise in restorative practices, “worth it.”[41] 

For me personally, though, the most persuasive refutation of the verity of the assertion that using a word other than “offender” will unduly cramp our writings and conversations has been my own experience.  After beginning to be dogged several years ago by concerns about the dissonance between, on the one hand, the objectives of, and values underlying, restorative practices and, on the other, adherence to the tradition of calling a person the “offender,” I decided to purge this word from my speeches, conversations, and writings, including the most recent edition of two of my books.[42]  What I discovered, as have others who have striven to desist from using the “o-word,”[43] is that using replacement terms for “offender” is quite doable.[44] 

IV.  LEADING THE WAY: EMERGING SUPPORT FOR ABANDONING THE LABEL “OFFENDER”

I am not the only one discomfited by the practice of alluding to someone as the or an “offender.”  In 2016, the U.S. Department of Justice’s Office of Justice Programs announced a new policy: to dispense with what Assistant Attorney General Karol Mason described as “useless and demeaning labels,” like “offender” and “felon,” that “freeze people in a single moment of time,” “drain their sense of self-worth,” and “perpetuate a cycle of crime.”[45]  Under this policy, phrases like “person who committed a crime” and “individual who was incarcerated” have supplanted the repudiated terminology.

The state of Washington’s Department of Corrections has followed suit, announcing its plan to phase out the word “offender” and instead refer to “individuals” or, depending on the context, “students,” “patients,” or other names that avoid shackling a person to a past misdeed.[46]  Secretary John Wetzel, the head of Pennsylvania’s Department of Corrections, has also issued a statewide directive to eliminate the word “offender” from agency discourse.[47]  In his view, the adoption of new vocabulary when referring to people convicted of crimes is a “value shift” without which “corrections reform will always come up short.”[48]  Secretary Wetzel explained:  “Words count. . .  They count when we say ‘You’re a failure’ or ‘I love you’ or ‘You are smart’ or ‘You are worthless.’  They also count when we say ‘I respect your humanity, and I believe in your capacity to change.’”[49]

When issuing the name-changing directive, Secretary Wetzel acknowledged that we need not, and should not, ignore the pain a crime has caused.  But he challenged those who are wedded to calling people “offenders” to deepen their perspective: “[M]ustn’t we also acknowledge the path to less communal pain is the transformation of these same individuals?  If labels don’t further THAT goal, then we have no business using them.”[50]

Other government officials and entities have joined in voicing their opposition to referring to a person as “offender.”  For example, the Board of Supervisors for the City and County of San Francisco recently adopted a resolution calling for a halt to this labeling practice.[51]  In lieu of what the Board termed “pejorative language” that has “harmful impacts,” the Board endorsed “person-first language,” such as “formerly incarcerated person” or person who was or is “justice involved.”[52]

V.  CONCLUSION

I remember puffing up my chest when I was a child after someone said something hurtful to me.  “Sticks and stones can hurt my bones, but words can never hurt me,” I resolutely announced.  This statement may have been a valiant effort to muster and display inner strength, but it was a canard, devoid of any truth.  Words can and do hurt.  Badly.

The label “offender” is one of these words, inflicting injury on those who are denominated, through this appellation, as incorrigible miscreants.  Using depreciating and derogatory terms when referring to another human being is also at odds with core values that are the foundation of restorative practices – values such as respect, interconnectedness, hope, and transformation.  These values are not the sole province of restorative practices but transcendent values that most people would likely say they endorse and hope to personify.

A third ill effect of the convention of typecasting people as “offenders” is that it helps thwart systemic and cultural change – an alteration in how people who have committed a crime are viewed and treated, both within the criminal-justice system and by society at large.  Referring to people in ways that denude them of their humanness makes it difficult, if not impossible, to fuel and foster widespread receptivity to restorative processes that, at their core, are founded on an unflagging commitment to accord respect to every human being.

So what do we do?  And who are “we”?

“We” are each of us.  Those of us who tout the value and benefits of restorative practices must commit to becoming better role models.  We must recognize and admit the incongruity between, on the one hand, being in a field whose raison d’être is, in part, to prevent and remedy harm and, on the other hand, blithely referring to people with a term that causes harm.  We must decide, individually (as I have done) as well as collectively, to abandon what has become the rote practice of labelling a person “offender.”  We must instead commit to using humanizing language when referring to people who have caused harm, such as opting to call them as much as possible what they are – “people.” 

Court and criminal-justice officials, members of the media, academics, and others, many of whom may not yet even be conversant with restorative practices, should likewise embark on a critical examination of the words they employ when describing people who are in, or once were in, the criminal-justice system.  A litmus test to apply when conducting this examination is whether a term “offers dignity, humanity as well as hope.”[53]  The label “offender” does not meet this test.  It never has.


*     Visiting Professor of Law, Saint Louis University School of Law.  B.A., University of Illinois; J.D., University of Chicago Law School; M.S., International Institute for Restorative Practices (IIRP).  I would like to thank Professor Molly Walker Wilson for her feedback on this Essay and IIRP faculty members, Dr. Craig Adamson, Dr. John Bailie, and Mary Jo Hebling, as well as fellow attorneys and IIRP students, Tina Murua and Professor Emily Scivoletto, for their comments on course-related papers that were the prelude to the Essay.  I would also like to extend my gratitude to the people from whom I obtained qualitative data, integrated into this Essay, about the term “offender” during an action-research project I conducted under IIRP’s auspices.  Finally, I am indebted to the students at the Wake Forest Law Review whose work has made it possible for me to share information and ideas that can impact how we think and talk about those who have committed crimes.

        [1].    For a synopsis of the history of restorative practices, the conceptual framework and research in which restorative practices are rooted, and examples of prototypical restorative processes, see Ted Wachtel, Defining Restorative, Int’l Institute for Restorative Practices (2016), https://www.iirp.edu/images/pdf/Defining-Restorative_Nov-2016.pdf.

        [2].    For a succinct overview of the theoretical underpinnings of restorative justice and its purposes, see Howard Zehr, The Little Book of Restorative Justice (rev. & updated ed. 2015).  For details on how to structure restorative-justice conferences, one of the mechanisms for implementing restorative justice, see Ted Wachtel et al., Restorative Justice Conferencing (2010).

        [3].    Wachtel, supra note 1, at 1.  For details about peacemaking circles, one of the classic means for effectuating the proactive aims of restorative practices, see Carolyn Boyes-Watson & Kay Pranis, Heart of Hope Resource Guide (2010); Kay Pranis, The Little Book of Circle Processes (2005).

        [4].    This outreach was part of an action-research project undertaken during one of my graduate courses on restorative practices.  The focus of action research is on the researcher’s own practices and how they can be improved.  For additional information about action research, see Jean McNiff & Jack Whitehead, All You Need to Know About Action Research (2d ed. 2011).

        [5].    Darcy Haag Granello & Todd A. Gibbs, The Power of Language and Labels: “The Mentally Ill” Versus “People with Mental Illnesses,” 94 J. Counseling & Dev. 31, 34–36 (2016).  When “the mentally ill” terminology was used, the survey respondents were also more likely to espouse the view that those with mental illnesses “need the same kind of control and discipline as a young child.”  Id. at 34.

        [6].    Posting of Alan Mills, Exec. Dir., Uptown People’s Law Ctr., to prison-law-and@googlegroups.com (Feb. 26, 2016, 1:02 PM CST) (on file with author).

        [7].    Posting of Sarah Baumgartel, Senior Liman Fellow, Yale Law Sch., to prison-law-and@googlegroups.com (Feb. 26, 2016, 8:43 AM EST) (on file with author).

        [8].    Id.

        [9].    See Rebecca Gray, Shame, Labeling and Stigma: Challenges to Counseling Clients in Alcohol and Other Drug Settings, 37 Contemp. Drug Probs. 685, 686, 688 (2010); Stephanie Madon et al., The Accumulation of Stereotype-Based Self-Fulfilling Prophecies, 115 J. Personality & Soc. Psychol.: Interpersonal Rel. & Group Processes 825, 841 (2018).

      [10].    See, e.g., Madon et al., supra note 9, at 826 (referring to “good evidence” stereotypes can have “self-fulfilling effects” on those subject to them); see also id. at 843 (noting the abundant research on the “power of beliefs to create reality”).

      [11].    Belle Derks et al., The Neuroscience of Stigma and Stereotype Threat, 11 Group Processes & Intergroup Rels. 163, 165, 169 (2008); see also id. at 169 (discussing fMRI (functional magnetic resonance imaging) studies revealing differences in brain activity in women reminded, before taking math tests, of the stereotypical view that women have inferior math skills).

      [12].    Telephone Interview with Sheila Murphy, Co-Dir., Restorative Justice Project, John Marshall Law Sch. (Feb. 15, 2016).

      [13].    Gwenda M. Willis, Why Call Someone by What We Don’t Want Them to Be? The Ethics of Labeling in Forensic/Correctional Psychology, 24 Psychol., Crime & L. 727, 728 (2018).

      [14].    See, e.g., Ministry of Justice, Restorative Justice: Best Practice In New Zealand 30 (2011), , https://www.justice.govt.nz/assets/Documents/Publications/RJ-Best-practice.pdf (“It cannot be emphasized too strongly that process and values are inseparable in restorative justice.  For it is the values that determine the process, and the process that makes visible the values.”); Zehr, supra note 2, at 46 (“The principles of restorative justice are useful only if they are rooted in a number of underlying values. . . . [T]o apply restorative justice principles in a way that is true to their spirit and intent, we must be explicit about these values.”).

      [15].    Ministry of Justice, supra note 14, at 31.

      [16].    Id.

      [17].    See, e.g., Corr. Serv. Can., Restorative Justice Principles and Values (2012), https://www.csc-scc.gc.ca/restorative-justice/003005-0006-eng.shtml; Ministry of Justice, supra note 14, at 32; Office on Drugs & Crime, U.N., Handbook on Restorative Justice Programmes 8 (2006), https://www.unodc.org/pdf/criminal_justice/Handbook_on_Restorative_Justice_Programmes.pdf.

      [18].    Zehr, supra note 2, at 47 (“[O]ne basic value is supremely important:  respect.  If I had to put restorative justice into one word, I would choose respect: respect for all – even those who are different from us, even those who seem to be our enemies.”).

      [19].    Id.

      [20].    Charlie Ryder, Why Are the Labels “Offender” and “Ex-Offender” So Offensive?, Discovering Desistance (Stephen Farrall ed., Feb. 11, 2013) https://blogs.iriss.org.uk/discoveringdesistance/2013/02/11/820/ (reporting what it feels like to be the object of a “permanent label based purely on the worst thing you have ever done”).

      [21].    See, e.g., Ministry of Justice, supra note 14, at 33; Zehr, supra note 2, at 46.

      [22].    Zehr, supra note 2, at 46.

      [23].    Boyes-Watson & Pranis, supra note 3, at 17 (“[T]his principle reminds us that there are no throw-away kids or people.  We cannot drop out, kick out, or get rid of anything without literally throwing away a part of ourselves.”).

      [24].    Susan J. Stabile, Othering and the Law, U. St. Thomas L.J. 381, 382–83 (2016); see also Jonathan Todres, Law, Otherness, and Human Trafficking, 49 Santa Clara L. Rev. 605, 607 (2009) (describing the “Self/Other dichotomy” as fostering the “conception of a virtuous ‘Self’ and a lesser ‘Other’”).

      [25].    Bruce G. Link & Jo Phelan, Stigma Power, 103 Soc. Sci. & Med. 24, 24 (2014).

      [26].    See id. at 24–25 (describing two of the aims of stigma as “keeping people down” and “keeping people away”).

      [27].    See, e.g., Ministry of Justice, supra note 14, at 33.

      [28].    See, e.g., Corr. Serv. Can., supra note 17.

      [29].    See supra Subpart I.A.

      [30].    In addition to studies cited earlier in this essay, see Guillaume Thierry, Neurolinguistic Relativity: How Language Flexes Human Perception and Cognition, 66 Language Learning 690, 694 (2016).

      [31].    Adam Alter, Why It’s Dangerous to Label People, Psychol. Today (May 17, 2010), https://www.psychologytoday.com/us/blog/alternative-truths/201005/why-its-dangerous-label-people.

      [32].    Words Can Hurt, Global Down Syndrome Found., https://www.globaldownsyndrome.org/about-down-syndrome/words-can-hurt (last visited Aug. 14, 2019).

      [33].    See Ted Wachtel, Dreaming of a New Reality 3–5 (2013).

      [34].    Int’l Institute for Restorative Practices, IIRP Training Script: 2-Day Facilitating Restorative Conferences, Day 1, at 15 (Mar. 4, 2019) (on file with author).

       [35].    See, e.g.,Zehr, supra note 2, at 12 (describing the label as “simple” to use).

      [36].    See, e.g., Int’l Institute for Restorative Practices, supra note 34, at 15 (cautioning that the word “offender” should not be used when meeting with people who may participate in a restorative-justice conference and should only be used “to identify,” “not label.”).

       [37].    See Lynn S. Branham, Changing My Vocabulary: The Word “Offender” and Its Infliction of Harm 7 (Mar. 28, 2016) (unpublished M.S. course paper, International Institute for Restorative Practices) (on file with author).

      [38].    Marian Liebmann, Restorative Justice: How It Works 326 (2007).

      [39].    McGregor Smyth, Holistic is Not a Bad Word: A Criminal Defense Attorney’s Guide to Using Invisible Punishments as an Advocacy Strategy, 36 U. Toledo L. Rev. 479, 479 n.1 (2005) (quoting Eddie Ellis).

      [40].    Michael J. Newman & Matthew C. Moschella, The Benefits and Operations of Federal Reentry Courts, 64 Fed. Law., Dec. 2017, at 26, 27.  Judge Newman is a magistrate judge in the Southern District of Ohio.

      [41].    See Branham, supra note 37, at 18 (quoting Prof. Emily Scivoletto).  Professor Scivoletto is also Senior Assistant Dean for Student Affairs at UC-Davis School of Law.

      [42].    See Lynn S. Branham, The Law and Policy of Sentencing (10th ed. 2018); Lynn S. Branham, The Law and Policy of Sentencing and Corrections in a Nutshell (10th ed. 2017).

      [43].    Nancy G. La Vigne, People First: Changing the Way We Talk About Those Touched by the Criminal Justice System, Urban Wire: Crime and Just. (Apr. 4, 2016), https://www.urban.org/urban-wire/people-first-changing-way-we-talk-about-those-touched-criminal-justice-system.

      [44].    See id. (reporting that writing a research brief for the Urban Institute’s Justice Policy Center and the report of the Charles Colson Task Force on Federal Corrections revealed that eliminating the word “offender” from discourse is feasible); Willis, supra note 13, at 736 (reporting that writing and talking without using denigrating labels like “offender” has become “habitual and effortless”).

      [45].    Karol Mason, Guest Post: Justice Dept. Agency to Alter Its Terminology for Released Convicts, to Ease Reentry, Wash. Post (May 4, 2016), https://www.washingtonpost.com/news/true-crime/wp/2016/05/04/guest-post-justice-dept-to-alter-its-terminology-for-released-convicts-to-ease-reentry/.

      [46].    Loretta Rafay, Washington’s DOC Ends the Use of the Word “Offender,” Prison Voice Wash. (Nov. 3, 2016), https://prisonvoicewa.org/washingtons-doc-ends-the-use-of-the-word-offender.

      [47].    John E. Wetzel, Pennsylvania Dept. of Corrections to Discard Terms “Offender,” “Felon” in Describing Ex-Prisoners, Wash. Post (May 25, 2016), https://www.washingtonpost.com/news/true-crime/wp/2016/05/25/pennsylvania-dept-of-corrections-to-discard-terms-offender-felon-in-describing-ex-prisoners/.

      [48].    Id.

      [49].    Id.

      [50].    Id.

       [51].    S.F., Cal., Res. 336-19 (July 26, 2019), https://sfbos.org/sites/default/files/r0336-19.pdf.

       [52].    Id. at 1, 3.

      [53].    This test emanates from feedback I received during my action-research project from a law-enforcement official regarding my decision to abandon use of the term “offender,” supplanting it as much as possible with references to a “person” (such as “person with a criminal conviction”) or “people” (such as “people confined in jail”).  This official commented that the replacement terms “offer dignity, humanity as well as hope.”

By: Sophia Pappalardo & Kenya Parrish

United States v. James Michael Farrell

In this criminal case, Appellant was convicted after a jury trial for ten offenses of money laundering conspiracy, substantive money laundering, and obstruction of justice. Appellant was prosecuted for his role in an elaborate multi-state marijuana trafficking organization. On appeal, Appellant contested several rulings made by the district court regarding evidence admissibility and sufficiency, and jury instructions. The Fourth Circuit rejected Appellant’s contentions of error and affirmed the judgment of the district court. 

United States v. Joshua Wayne Riley

In this criminal case, Appellant was convicted on federal drug-related charges in 2013. Appellant was released from prison in 2016 and began serving his five-year supervised release term. The district court determined Appellant violated the conditions of his supervised release and sentenced Appellant to twelve months’ imprisonment. Appellant appealed, arguing that the court erred in finding Appellant’s statements sufficient to establish the violation of his supervised release. The Fourth Circuit affirmed the judgment of the district court. 

Thomas Franklin Bowling v. Director, VA Dept. of Corrections

In this habeus corpuscase, Appellant was sentenced to life with the possibility of parole when he was seventeen years old and was first eligible for parole in April 2005. Thereafter, Appellant was annually denied parole by the Virginia Parole Board. Appellant alleged that the Parole Board’s repeated denials violated Appellant’s Eighth and Fourteenth Amendment rights. The district court granted the Appellee’s motion to dismiss. Regarding the Eighth Amendment claim, the district court held that juvenile-specific Eighth Amendment protections did not apply to Appellant because he was sentenced to life with the possibility of parole. Additionally, the district court held that the Parole Board’s procedures satisfied the Fourteenth Amendment’s procedural due process requirements. The Fourth Circuit affirmed the judgment of the district court.

R.F. v. Cecil County Public Schools

This case is a civil case where the parents of a child with disabilities challenged an administrative law judge’s determination that Cecil County Public Schools (“CCPS”) had fulfilled its obligation to provide the child with a free appropriate public education under the Individuals with Disabilities Education Act (“IDEA”). There were four issues on appeal: (1) whether CCPS failed to educate the “least restrictive environment” (usually, alongside children who are not disabled); (2) whether CCPS failed to sufficiently implement classroom placement in the child’s Individualized Education Program (“IEP”); (3) whether CCPS denied the child’s parents the right to participate in her education; and (4) whether CCPS provided an appropriate IEP for the child. The administrative law judge and the district court both found that any procedural violations CCPS committed did not substantively deny the child from a free appropriate public education. The Fourth Circuit held that CCPS did violate some procedural requirements of the IDEA, but that overall CCPS did not deny the child a free appropriate public education under the IDEA. Thus, the Fourth Circuit affirmed the district court’s decision. 

Lance Belville v. Ford Motor Company

Ford Motor Company (“Ford”) was sued by a group of individuals and corporations (“Plaintiffs”) for an alleged defect in Ford vehicles manufactured between 2002 and 2010. In total there are twenty-seven individual and two corporate Plaintiffs who had purchased or leased Ford vehicles with these alleged defects. The district court excluded the opinions of the Plaintiffs’ experts, dismissed various claims of certain Plaintiffs and ultimately granted summary judgment to Ford on all remaining claims. The Fourth Circuit affirmed the district court judgment. The district court excluded the opinions of Plaintiff’s three experts based on their lack of relevance and reliability. The Fourth Circuit held that the district court provided a well-reasoned analysis of the experts’ theories and testing based on consideration of the appropriate Daubertfactors for the case. Those appropriate Daubertfactors included general acceptance of a theory within a relevant field, peer review, and the scientific valid of underlying methodologies used. Therefore, the Fourth Circuit held that the district court did not abuse its discretion when they excluded the experts from the proceeding. Ultimately, the Plaintiffs could not prove their theory of defect when their experts were excluded and thus the Plaintiffs could not meet the essential element of causation. Therefore, the district court’s grant of summary judgment on all claims to Ford was appropriate.

United States v. Justin Hawley

            In this criminal case, Defendant Justin Hawley (“Hawley”) pleaded guilty to two counts of distributing heroin and to two counts of being a felon in possession of a firearm. Hawley was sentenced to fifty-seven months in prison, in part because Hawley’s prior criminal history included a sentence of thirty days imprisonment for an uncounseled misdemeanor offense. The uncounseled misdemeanor offense that Hawley was imprisoned for thirty days for was for providing false information to a police officer and for failure to wear a seatbelt. Hawley argued “that the district court contravened the Sentencing Guidelines in calculating his criminal history by counting the prior uncounseled misdemeanor that resulted in imprisonment.” The Fourth Circuit affirmed Hawley’s fifty-seven month sentence. The Sentencing Guidelines (“Guidelines”), under U.S.S.G. § 4A1.2(c)(1), require the district court to count certain prior offenses when computing a defendant’s criminal history for sentencing, “only if (A) the sentence was a term or probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense.” Therefore, under the plain language of Guidelines, Hawley’s offense should be counted in calculating his prior criminal history. Based on this information, the Fourth Circuit held that the district court did not err in counting Hawley’s prior voluntarily uncounseled misdemeanor offense for which he was sentenced to 30 days imprisonment in calculating his criminal history and therefore the Fourth Circuit affirmed the imprisonment term for Hawley in this case.

United States v. Michael Smith

            In this criminal case, defendants Mark Bazemore, Michael Smith, Jr., and Timothy Hurtt all participated in the illegal activities of a Baltimore street and prison gang named the Black Guerilla Family. All three defendants were convicted because of their involvement in the gang’s drug dealing and violent acts they committed as members of the gang. The district court sentenced Bazemore to life, Hurtt to 324 months and Smith to 210 months. Bazemore and Hurtt were convicted for, among other things, first-degree murder and attempted murder. Smith was convicted of extortion and drug distribution under a racketeering conspiracy. Defendants sought to reverse their convictions for two main reasons. First, Defendants argued that “the district court improperly handled the fears some jurors expressed to the court after learning of this gang’s predilection for violence and retaliation.” Second, Defendants claimed that the district court should have excluded the expert testimony of an FBI agent regarding the decoding of intercepted phone calls. The Fourth Circuit rejected the challenges of the Defendants. The district court had excused three different jurors that were scared because of the nature of the case and the potential for violence against them or their families after the trial if Defendants were convicted. During the trial, the Government called an Agent James to provide expert interpretations of phone calls of gang members that had been recorded as part of an FBI investigation. Agent James was qualified as an expert in drug and gang terminology in Maryland and at trial he explained the meanings of several coded gang terms used in the recorded conversations. The Fourth Circuit found that the district court in questioning each juror individually after learning that Juror No. 5, one of the juror’s ultimately excused, was experiencing great fear from being on the jury. It is the job of the trial judge to determine if affected jurors can remain fair and impartial. In the opinion of the Fourth Circuit, the trial judge acted well within his discretion in denying the request for a mistrial after excusing the three jurors he believed could not be fair and impartial and keeping those jurors that assured him of their continued impartiality. The Fourth Circuit rejected the argument that the district court abused its discretion in admitting portions of Agent James’s expert testimony and that even if any improper opinion testimony from Agent James was heard by the jury it was harmless.

U.S. v. Jose Guzman-Velasquez

            This case is a criminal case in which Jose Benjamin Guzman-Velasquez (“Defendant”) was charged with the crime of illegal reentry when he returned to the United States after being deported. Defendant was removed from the United States in 2007, but sometime after returned and was convicted of three crimes. Subsequently, in 2016, a grand jury indicted Defendant for illegal reentry in violation of 8 U.S.C. § 1326(a). Guzman made a motion to dismiss the indicted, but the district court denied the motion. Guzman plead guilty and appealed. The issue was whether United States Citizenship and Immigration Services’ (“USCIS”) denial of Defendant’s Temporary Protected Status (“TPS”) application violated his Due Process rights, and whether under the Supreme Court case United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the due process principle extends beyond removal orders to TPS denials. The Fourth Circuit did not reach the question regarding the Mendoza-Lopezcase because they determined Defendant had not asserted a due process violation that resulted in fundamental unfairness. The Fourth Circuit held that USCIS did not error in denying Defendant’s TPS application and therefore affirmed the district court’s judgment. 

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By Tristan Meagher & Nick McCauslin

United States v. Mills

In this criminal case, the Fourth Circuit affirmed the sentencing of Darryl Mills for possession of a firearm by a felon, a violation of 18 U.S.C. § 922(g)(1). After pleading guilty to the violation, Mills was sentenced to 70 months in prison based on a finding that his prior conviction of assault with a deadly weapon was a “crime of violence.” Mills argued that his prior conviction was not for a crime of violence, and thus his sentence should be reduced to 37 to 46 months, consistent with sentencing guidelines. The Fourth Circuit held because the district court noted that it would have imposed the 70 month prison sentence regardless of whether the prior conviction was a crime of violence and that the sentencing was substantively reasonable.

Williams v. Strickland

In this civil case, the Fourth Circuit affirmed the district court’s denial of summary judgment in favor of the defendants. Williams brought suit against police officers in the United States District Court for the District of South Carolina for using deadly force when arresting him, in violation of his Fourth Amendment Rights. As the officers attempted a traffic stop, Williams drove his car in the direction of one of the officers, prompting them to shoot Williams. The officers filed a motion for summary judgment on the basis of qualified immunity. The district court denied the motion finding that a reasonable jury could have determined that the car was not going to pass or had already passed the officer, in which case the use of deadly force would have been excessive. The Fourth Circuit agreed.

United States v. Simmons

In this criminal case, the district court revoked the defendant’s supervised release and sentenced him to 36 months in prison after he was found to have committed assault with a deadly weapon on a government official in violation of his release. The district court held that because assault with a deadly weapon on a government official is categorically a “crime of violence,” they were free to revoke his supervised release and implement the 36 month prison sentence. The Fourth Circuit vacated the revocation holding that assault with a deadly weapon on a government official is not categorically a crime of violence, because the offense can be committed without the requisitemens rea to qualify as a crime of violence. Accordingly, the case was remanded to the district court for resentencing. 

Robinson v. United States Department of Education

In this civil case, plaintiff Anthony Robinson appealed the dismissal of his case against the Department of Education. The district court dismissed his case because it lacked jurisdiction over the claim due to the lack of waiver of sovereign immunity for suits under the Fair Credit Reporting Act (FCRA). The issue on appeal was whether Congress waived sovereign immunity for suits under the FCRA. The Fourth Circuit ultimately focused on the term “person” in 15 U.S.C. § 1681(n) and § 1681(o). The Fourth Circuit ultimately refuses to read the word “sovereign” into the word “person, and thus affirmed the dismissal by the district court for lack of subject matter jurisdiction. 

Equinor USA Onshore Properties v. Pine Resources, LLC

The issue this civil case was what exactly the contractual requirements are in a Purchase and Sale Agreement (PSA). Specifically, what the clause that required Equinor USA to “spud” three wells meant. The district court finding, that the term “spud” required Equinor to drill, but not complete, the wells, was appealed by Pine Resources. Pine Resources contended that the parties clearly intended “spud” to mean complete the wells such that they can be used. The Fourth Circuit decided that the district court was correct in their finding. To come to that decision, the Fourth Circuit considered the record as a whole and whether or not it supported the district court’s conclusion as to the intent of the parties. They found that while there was some evidence that Pine Resources believed the PSA required product, the record—considered as a whole—showed that the PSA merely contemplated, but did not require, the completion of the wells. Thus, the decision by the district court was affirmed. 

Hately v. Watts

In this civil case, plaintiff David Watts appealed the dismissal of his suit that Watts violated the Virginia Computer Crimes Act and  the Federal Stored Communications Act. There were two issues on appeal.  The first was whether the district court’s finding that Hately failed to show necessary injury under his state law claim. The second was the district court’s finding that emails stored by a web-based email service were not considered “electronic storage” under federal law.  Regarding the first issue, the Fourth Circuit found both that the district court improperly applied the doctrine of collateral estoppel and that Watts had adequately alleged injury to his person or property. Regarding the second issue, the Fourth Circuit found that “previously opened and delivered emails” stored “in a web-based email client” were considered “electronic storage” under the federal Stored Communications Act. Therefore, they reversed the district court on both the state and federal claims and remanded it for trial. 

By Ryan C Dibilio and Robert M. Padget III

Hannah P. v. Daniel Coats

In this case, Appellant Hannah P. (“Hannah”) asserted that her former employer, the Office of the Director of National Intelligence (“Appellee”), discriminated against her pursuant to the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701, et seq., and violated the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et. seq., by not hiring her for a permanent position.  The district court granted summary judgment for Appellee as to all claims.  The Fourth Circuit affirmed the district court’s judgment as to the Rehabilitation Act and FMLA retaliation claims; however, the Fourth Circuit vacated the judgment as to Hannah’s FMLA interference claim.  The Court determined a genuine issue of material fact remains as to whether Hannah provided notice of her disability and interest in FMLA leave sufficient to trigger Appellee’s duty to inquire.  The Fourth Circuit held that a reasonable jury could find that Hannah’s disclosure of her depression and her April 9, 2015 request for psychiatrist-recommended leave was indeed sufficient to trigger Appellee’s duty to inquire further as to whether she was seeking FMLA leave.  Disclosure of a potentially FMLA-qualifying circumstance, such as depression, and an inquiry into leave options has been held by the Fourth Circuit as sufficient to create a material question of fact regarded whether the employer’s FMLA inquiry obligations have been triggered.  Thus, the case was remanded for consideration of Hannah’s FMLA interference claim.

United States v. Gregory Kyle Seerden

In January 2017, George Kyle Seeden (“Appellant”) was accused of sexual assault on a woman he met in Virginia Beach, Virginia, while visiting for training.  Subsequently, the Naval Criminal Investigation Service (“NCIS”) obtained a military search warrant and found child pornography on Appellant’s phone.  NCIS used this to obtain a federal search warrant and discovered more child pornography.  Appellant sought to suppress the evidence because it violated the Military Rules of Evidence and because it was fruit of the poisonous tree.  While the district court agreed the evidence violated the Military Rules of Evidence “authorization” requirement in Rule 315, the Court admitted the child pornography found in the second search under the good faith exception.  Appellant entered a conditional guilty plea in violation of 18 U.S.C. §§ 2251(a) and (e), production of child pornography.  He then appealed.  The Fourth Circuit reviews a district court’s decision to deny a motion to suppress under two standards of review: (1) findings of fact are reviewed for clear error; and (2) legal conclusions are reviewed de novo.  The Court held that the evidence should not be suppressed under the Military Rules of Evidence because the Federal Rules of Evidence govern admissibility in federal criminal proceedings.  The Court stated, “just as states ‘lack the power to impose on federal courts requirements stricter than those mandated by the federal Constitution . . . so too does the military.’”  Consequently, the Fourth Amendment provides the standard for whether evidence seized pursuant to a non-federal warrant is admissible in federal court.  Further, even if the initial search violated the Fourth Amendment, the good faith exception to the exclusionary rule precludes the evidence obtained in the first and second searches.  The good faith exception admits evidence obtained in unlawful searches on reasonable reliance on a defective warrant.  As Appellant’s commanding officers authorized the search of his phone believing it to be a valid authorization, the good faith exception applies and the evidence is admissible.  For these reasons, the Fourth Circuit affirmed the district court’s judgment.

United States v. Nicholas Young

This was a criminal case in the Eastern District of Virginia where a jury convicted Nicholas Young (“Young”) on one count of attempting to provide material support to the Islamic State of Iraq and the Levant and two counts of attempting to obstruct justice.  Young asserted five sets of errors on appeal.  The first pertained to the district court admitting Nazi and White Supremacist paraphernalia that the FBI discovered in a search of his home and whether the seizure of the items exceeded the search warrant’s scope.  The Fourth Circuit affirmed the district court’s ruling and concluded the seizure did not exceed the warrant’s scope.  The second alleged error was the district court’s admission of an expert witness.  However, determining a witness is an expert is a highly deferential standard, and the Fourth Circuit concluded the district court did not abuse its discretion by admitting the expert.  The next error that Young alleged was that the district court erred when it allowed admission of evidence of Young owning weapons and of evidence of comments Young made about attacking federal buildings. Young also argued that the district court erred in excluding certain comments made by Young and several FBI agents that Young believed to be exculpatory. However, the Fourth Circuit again concluded the district court did not abuse its discretion in its evidentiary rulings.  The fourth alleged error is that the government did not provide sufficient evidence to prove the attempted obstruction of justice charges.  Here, the Fourth Circuit concluded that the evidence presented at trial was insufficient to convict Young on the attempted obstruction of justice counts.  Thus, the Fourth Circuit affirmed the material support conviction, vacated the obstruction convictions, and remanded for resentencing.

ACA Financial Guaranty v. City of Buena Vista, Virginia

In this case, bonds were issued to refinance debt on a municipal golf course in the City of Buena Vista, Virginia (the “City”).  The repayment of the bonds depended on the City making lease payments of the golf course and the City failed to make these payments.  After the City did not make the lease payments, this litigation ensued.  The district court dismissed the complaint.  The Fourth Circuit affirmed the dismissal of the complaint, holding the City’s obligation to make rent payments is not legally enforceable when the obligation to make the payments is expressly subject to the City’s annual decision to appropriate funds.  The Court reasoned that the language of the lease agreement was unambiguous in that if the City did not appropriate funds, the City had no obligation to make the rent payments.  The City decided not to appropriate funds for the rent payments and therefore had no obligation to make the rent payments.  The Fourth Circuit opined that there can be no suit against a party for breaching an obligation if the party never had the obligation in the first place.  Thus, the district court’s judgment was affirmed.

Nikki T. Thomas v. Nancy A. Berryhill

This was a civil case in which the Commissioner of Social Security denied Nikki Thomas’s (“Thomas”) application for supplemental security income (“SSI”).  Thomas obtained review in the district court, which affirmed the denial.  She then appealed to the Fourth Circuit, which found that the Administrative Law Judge (“ALJ”) made two errors, vacated the ruling, and remanded the case.  The issues on appeal were, first, whether the ALJ erred by failing to provide a logical explanation about how the judge weighed the evidence and made the ultimate conclusion regarding Thomas’s residual functional capacity (“RFC”).  The second issue was whether there was an apparent conflict between the dictionary of occupational titles and the vocational expert’s testimony.  The Fourth Circuit determined that when evaluating Thomas’s RFC, the ALJ did not adequately explain the conclusions pertaining to Thomas’s mental impairments because the analysis contained too little explanation for the Court to be able to conduct a meaningful review. Additionally, the Fourth Circuit concluded that there was a conflict between the dictionary of occupational titles and the testimony of the vocational expert, but the ALJ did not identify or resolve it.  For these reasons, the Fourth Circuit vacated the district court’s grant of summary judgment and remanded to the district court with instructions to remand to remand to the Commissioner of Social Security for further administrative proceedings.

Mitra Rangarajan v. Johns Hopkins University

In this civil case, Mitra Rangarajan (“Rangarajan”) was constructively discharged from her job as a nurse practitioner at the School of Medicine of Johns Hopkins University (“Johns Hopkins”).  Rangarajan contended that she was discharged because of discrimination and retaliation, while Johns Hopkins contended that she was discharged because of her performance.  Rangarajan commenced four separate actions against Johns Hopkins arising out of her discharge, alleging state torts of defamation and interference with prospective advantage, as well as violations of the False Claims Act, the Maryland False Health Claims Act, Title VII, and 42 U.S.C. § 1981.  The district court dismissed all four of the actions.  Three of the actions were dismissed by the district court as a sanction for “flagrant and unremitting” violations of the Federal Rules of Civil Procedure by Rangarajan.  The Fourth Circuit held that the district court did not abuse its discretion by dismissing those actions as a sanction.  The Fourth Circuit noted that Rangarajan received notice that dismissal of her actions was a potential sanction that the district court would take.  There was a full opportunity for Rangarajan to respond, and she did in fact respond before any decision on sanctions was actually made.  Rangarajan also rendered the entire discovery process virtually useless by her actions, and the parties had invested substantial time and money in the discovery process.  The Court finally opined that Rangarajan’s abuse of the proceeding would have likely continued into the future.  Thus, the district court did not abuse its discretion and the judgment of the district court was affirmed.

By Cole Tipton

SummitBridge National v. Faison

In this bankruptcy action, SummitBridge National (“National”) appeals the district court’s holding that it is barred from claiming attorney’s fees incurred after a bankruptcy petition was filed.  The contract between National and Ollie Faison (“Faison”) stated that Faison would pay “all costs of collection, including but not limited to reasonable attorneys’ fees.”  The Fourth Circuit reversed the district court’s holding and stated that the Bankruptcy Code does not preclude contractual claims to attorney’s fees that were guaranteed by a pre-bankruptcy contract.  The determination of the district court was reversed and remanded for further proceedings.

US v. Pratt

In this criminal action, Samual Pratt (“Pratt”) appeals his conviction of various counts of sex trafficking and child pornography due to evidentiary errors.  Pratt contends the district court should have suppressed evidence from his cellphone and should not have admitted certain hearsay statements.  First, the Fourth Circuit held that it was reversible error to admit evidence from Pratt’s cellphone because the phone was seized without consent and the government waited thirty-one days before obtaining a search warrant.  The Court stated that such a delay was unreasonable.  Second, the Fourth Circuit held that an unavailable witness’s hearsay statements were admissible because Pratt had procured the witness’s unavailability through phone calls and threats.  Accordingly, the Fourth Circuit vacated Pratt’s convictions on the two counts prejudiced by the cell phone evidence, vacated his sentence, and remanded.

Parker v. Reema Consulting Services, Inc 

In this civil action, Evangeline Parker (“Parker”) appeals the district court’s dismissal of her complaint against her employer, Reema Consulting Services, Inc. (“Reema”).  The central issue of the appeal was whether a false rumor circulated by Reema that Parker slept with her boss for a raise could give rise to liability under Title VII for discrimination “because of sex.”  The Fourth Circuit held that because the complaint alleged Reema spread the rumor and acted on it by penalizing the employee, a cognizable claim for discrimination “because of sex” was alleged.  The district court’s dismissal was reversed.

US Dep’t of Labor v. Fire & Safety Investigation

In this civil action, Fire & Safety Investigation Consulting Services, LLC (“Fire & Safety”) appealed the district court’s determination that they violated the Fair Labor Standards Act (“FLSA”) for failing to pay overtime compensation.  Fire & Safety uses an alternative work schedule for its employees in which an employee works 12 hours per day for 14 days and then receives 14 days off.  Because employees under this plan will work 88 hours in one work week, Fire & Safety pays its employees a blended rate for all 88 hours that is supposed to account for the 48 hours of overtime worked, rather than paying 40 hours of standard pay plus 48 hours of overtime.  The Fourth Circuit held that this blended rate fails to observe the formalities required by the FLSA which requires all overtime hours be recorded and paid at one and one-half times the standard rate of pay for all hours worked over 40.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, including over $1.5 million in back wages and liquidated damages.

Trana Discovery, Inc. v. S. Research Inst.

In this civil action, Trana Discovery, Inc. (“Trana”) brought a fraud and negligent misrepresentation action against Southern Research Institute (“Southern”).  Trana alleged that Southern had provided false data in research reports of a new HIV medication it was researching.  The district court granted summary judgment for Southern on both claims.  The Fourth Circuit upheld the grant of summary judgement, stating that there was no genuine dispute of material fact due to an insufficiency of evidence regarding damages and the standard of care Southern was exacted to.  Accordingly, summary judgement was affirmed.

Jesus Christ is the Answer v. Baltimore County, Maryland

In this civil action, Jesus Christ is the Answer Church (“Church”) brought an action alleging violation of the First Amendment’s Free Exercise Clause, the Fourteenth Amendment’s Equal Protection Clause, the Maryland Declaration of Rights, and the Religious Land Use and Institutionalized Person Act.  Church alleged that Baltimore County, Maryland (“Baltimore”) had infringed upon their State and Federal rights by denying their modified petition for zoning variances to establish a church.  Several neighbors, who had expressed open hostility towards Church, opposed the petition.  After the petition was denied, Church filed an action in district court which was dismissed for failure to state a claim.  On appeal, the Fourth Circuit reversed and remanded because Church’s complaint contained facts sufficient to state a claim that was “plausible on its face.”  The Fourth Circuit held that the neighbors apparent religious bias towards Church was sufficient to plead a plausible Constitutional claim and violation of the Religious Land Use Act. 

Curtis v. Propel Property Tax Funding

In this civil action, Garry Curtis (“Curtis”) brought a suit on behalf of himself and similarly situated individuals against Propel Property Tax Funding (“Propel”), alleging violations of the Truth in Lending Act, the Electronic Funds Transfer Act, and the Virginia Consumer Protection Act.  Propel was engaged in the practice of lending to third parties to finance payment of local taxes.  The district court denied Propel’s motion to dismiss and certified two interlocutory questions.  Propel appealed, asserting that Curtis did not have standing and that he failed to state a claim for relief.  The Fourth Circuit upheld the district court’s ruling, finding that: 1) Curtis had standing because he was personally subject to the harms these consumer protection statutes were designed to protect against; and 2) Curtis had sufficiently pled violations of the lending acts because Propel was conducting consumer credit transactions.

US v. Charboneau

In this civil action, Blake Charboneau (“Charboneau”) challenges the determination that he is a “sexually dangerous person” under the civil commitment provisions of the Adam Walsh Child Protection and Safety Act of 2006.  The district court held that Charboneau was a “sexually dangerous person” within the meaning of the act and committed him to the custody of the Attorney General.  On appeal, Charboneau raised two issues: 1) whether he must be diagnosed with a paraphilic disorder to be committed under the act; and 2) if the record supported the district court’s findings.  The Fourth Circuit affirmed the district court’s judgment, holding that an actual diagnosis was not necessary under the act and the record was sufficient under a clear error standard of review.

US v. Johnson

In this criminal action, Willie Johnson (“Johnson”) appealed a district court’s order to resentence him for bank robbery under the sentencing recommendation in his original plea agreement.  Johnson argued that the government’s original agreement not to seek a mandatory life sentence under the federal three-strikes law was not beneficial because his prior state crimes should not be counted for federal three-strikes treatment.  The Fourth Circuit held that state crimes are encompassed by the three-strikes program and the district court’s decision to honor the original sentencing recommendation was affirmed.

Mountain Valley Pipeline, LLC v. 6.56 Acres of Land

In this civil action, owners of 6.56 acres of land appealed a district court judgement granted Mountain Valley Pipeline, LLC (“Pipeline”) a preliminary injunction for access and possession of property it was acquiring through eminent domain.  The Fourth Circuit reviewed the district court’s application of the test set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) for preliminary injunctions.  In doing so, the Court found that Pipeline had established it was likely to succeed on the merits, would suffer irreparable harm, the balance of equities was in its favor, and that an injunction served the public interest.  Accordingly, the district court was affirmed.

Booking.com B.V. v. US Patent & Trademark

In this civil action, Booking.com and the U.S. Patent and Trademark Office (“USPTO”) appeal the district court’s grant of summary judgment protecting the trademark BOOKING.COM.  Booking.com appeals the district court’s grant of attorney’s fees to the USPTO, and the USPTO appeals the court’s decision that BOOKING.COM is protectable.  The Fourth Circuit held that BOOKING.COM is not generic and can be registered as a descriptive mark with secondary meaning.  Moreover, the Court upheld the grant of USPTO’s expenses because the Lanham Act requires a party to pay “all the expenses of the proceeding” when a USPTO decision is appealed to the district court.  Thus, the district court’s judgment was affirmed.

US v. Jones

In this criminal action, James Eric Jones (“Jones”) appeals the district court’s denial of a motion to vacate, set aside, or correct his sentence.  Jones was originally sentenced under the Armed Career Criminal Act (“ACCA”) which requires a mandatory fifteen-year minimum sentence for defendants with at least three prior violent felony convictions.  However, Jones claims that he does not qualify for sentencing under the act because his South Carolina conviction for assaulting, beating, or wounding a police officer is not a violent conviction as defined by the ACCA.  The Fourth Circuit held that assaulting, beating, or wounding a police officer does not qualify under the ACCA because it includes conduct that does not involve violent physical force. Therefore, the district court’s judgment was vacated and remanded.

By Kayla West and Jim Twiddy

Mark Lawlor v. David Zook

In this criminal case, the Appellant sought a review of his death sentence. A Virginia state court sentenced the Appellant to death after his conviction for capital murder. During his sentencing, the sentencing jury found that the Appellant would likely continue to commit criminal acts of violence, making him a continuous threat to society. The state court had excluded relevant testimony of a qualified witness who would have explained that the Appellant represented a low risk for committing acts of violence while incarcerated. The Appellant filed the instant federal petition for review of his death sentence which was dismissed by the district court. The Fourth Circuit granted certificate of appealability on three issues, including whether it was a constitutional error for the trial court to exclude expert testimony about the Appellant’s risk of future violence in prison. The Fourth Circuit concluded that the state court’s exclusion of the expert testimony was an unreasonable application of the established federal law because the evidence was potentially mitigating, and such evidence may not be excluded from the sentencer’s consideration. The Fourth Circuit relied on the Supreme Court’s long recognized principle that a capital sentencing body must be permitted to consider any admissible and relevant mitigating information in determining whether to assign the defendant a sentence less than death. Thus, the district court’s decision was reversed and remanded.

 

Sierra Club v. U.S. Army Corps of Engineers

In this civil case, petitioners asked for the Court to set aside respondent’s verification and reinstated verification that construction of the Mountain Valley Pipeline can proceed under the terms and conditions of Clean Water Act Nationwide Permit 12 (“NWP 12”), rather than an individual permit. The 42-inch diameter natural gas Pipeline proposes to run 304 miles through parts of Virginia and West Virginia, crossing several federal water bodies. Because the construction of the Pipeline will involve the discharge of fill material into federal waters, the Clean Water Act requires that Mountain Valley Pipeline, LLC (certified to construct and operate the Pipeline) obtain clearance from the U.S. Army Corps of Engineers’ before beginning construction. Mountain Valley elected to pursue the general permit approach to obtain Corps clearance under NWP 12 which requires that all terms and conditions are satisfied before valid authorization occurs. Additionally, Mountain Valley must provide the Corps with a certification from the state in which the discharge originates. Under NWP 12, West Virginia’s certification imposes additional “special conditions” which the Corps must make regional conditions. However, the Corps decided to substitute its Special Condition 6 “in lieu of” NWP 12’s Special Condition C (imposed by West Virginia). The Fourth Circuit held that the Corps lacked the statutory authority to substitute its own special conditions “in lieu of” West Virginia’s special conditions. Further, the State Department for West Virginia waived Special Condition A, imposed as part of its certification of NWP 12. However, the Fourth Circuit held that a state cannot waive a special condition previously imposed as part of a nationwide permit absent completion of the notice-and-comment procedures required by the Clean Water Act under Section 1341(a)(1). Accordingly, the Fourth Circuit vacated, in their entirety, the verification and reinstated verification authorizing the Pipeline’s compliance with NWP 12.

 

US v. Terry

In this criminal case, Terry appealed his conviction of possessing methamphetamine with the intent to distribute. The key issue in this appeal was whether the district court erred in denying Terry’s motion to suppress evidence seized during a traffic stop. The stop was conducted through the illegal use of a GPS search. The district court asserted that because Terry relinquished control over the car, he lacked standing to challenge the GPS search. The Fourth Circuit concluded that the government agents committed a flagrant constitutional violation when they secretly placed a GPS on Terry’s car without a warrant, and that the discovery of the evidence seized during the traffic stop was not sufficiently attenuated from the unlawful GPS search to purge the effect of the unlawful search because the GPS and discovery of evidence were so closely tied. Additionally, the Fourth Circuit concluded that Terry did not lose his standing to assert a constitutional violation because when the tracker was placed, he was legitimately in possession of the vehicle. The Fourth Circuit reversed the holding of the district court, and vacated Terry’s conviction.

 

US v. Brown

In this criminal case, Brown asserted that a district court erred in calculating his criminal history category because the court added two points to Brown’s criminal history score based on a prior Virginia state conviction for which Brown received a suspended sentence. Brown’s suspended sentence was conditioned on a period of good behavior for ten years upon release from the prior Virginia State conviction. He was released in July of 2009, meaning that at the time of the present case, Brown had not completed his period of ten years good behavior. The district court concluded that a period of good behavior constitutes a criminal justice sentence, making it relevant to a defendant’s criminal history score. Brown asserted that a period of good behavior is not a criminal justice sentence because it lacks a custodial or supervisory component. The Fourth Circuit concluded that during a period of good behavior, Brown was still subject to the authority of the state. This operated as a supervisory component significant enough to constitute a criminal justice sentence. Because Brown committed the present offense while under a criminal justice sentence, the additional two points to his criminal history score were correctly added. The Fourth Circuit affirmed.

By Jim Twiddy and Kayla West

United States v. Miguel Zelaya

In this criminal case, the Fourth Circuit affirmed the trial court’s convictions of Miguel Zelaya, Luis Ordonez-Vega, Jorge Sosa, and William Gavidia. Each were convicted of participating in a racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Some of the defendants were also convicted of committing violent crimes in related and unrelated events. Appellants were members in the gang, MS-13. Each of the defendants were charged with violent action associated with their racketeering activity. Sosa and Gavidia moved for severance because they had not been charged with murder, unlike the other defendants. Ordonez-Vega moved to exclude testimony from New York police officers who had knowledge about his previous gang affiliation in New York. Sosa moved for mistrial based on a witness’ reference to an uncharged MS-13 murder during her testimony to establish Sosa as a gang member. Gavidia moved for a new trial following the verdict. All four Appellants moved for a judgment of acquittal based on insufficient evidence. All of these motions were denied. Appellants raised multiple issues on appeal including the denial of their motion for acquittal. Sosa and Gavidia challenged the denial of their motions for severance and new trials, Ordonez-Vega challenged the admission of certain evidence, Sosa challenged the jury instructions, and Gavidia challenged his sentence. The Fourth Circuit addressed each of these challenges in turn, articulating the relevant standard for each conviction and applying that standard for the facts relevant to each challenge. Essentially, all of these claims turned on whether there was sufficient evidence for a reasonable jury to come to the conclusions from the trial court. In each of these challenges, the Fourth Circuit found that there was sufficient evidence to support all of the jury’s findings. All of challenged trial court holdings were affirmed. Judge Floyd, dissenting in part, argued that, with respect to some of these convictions, the government lacked sufficient evidence to show that the violence was connected to membership in a gang.

 

Catherine D. Netter v. Sheriff BJ Barnes

In this civil case, Appellant argued that her unauthorized review and disclosure of confidential personnel files to support her racial and religious discrimination claims constituted protected activity under Title VII. Appellant filed a complaint with her employer and the EEOC. Appellant reviewed, copied, and supplied the confidential personnel files to support her claims. After she was discharged by her employer, she filed a new charge with the EEOC. The EEOC dismissed the charged but allowed her to supplement her existing Title VII discrimination complaint with a new retaliation claim. After discovery, the district court granted summary judgment to Appellant’s employer on all claims. Appellant filed an appeal, challenging only the portion of the district court’s order that concerns her retaliation claim. The Fourth Circuit held that Appellants actions were in violation of N.C. Gen. Stat. § 153A–98(f) which establishes a Class 3 misdemeanor for “knowingly and willfully examin[ing] . . . , remov[ing] or copy[ing] any portion of a confidential personnel file” without authorized access. Further, illegal actions do not constitute a protected activity for participation clause claims under Title VII. Thus, the Fourth Circuit affirmed the decision of the district court.

By Samuel D. Gilleran and Nicholas T. Pappayliou

Background

On August 22, 2018, the Fourth Circuit decided United States v. Hodge,[1] clarifying whether the government may ask a district court to designate a conviction as an Armed Career Criminal Act (“ACCA”) predicate conviction, when that conviction was not so designated during the initial sentencing.  In 2011, Garnett Hodge pleaded guilty to possession of crack cocaine with intent to distribute and possession of a firearm as a felon.[2]  Because of his prior convictions, Mr. Hodge was eligible for a “sentence enhancement” under the ACCA.[3]  The ACCA states that a person convicted of possession of a firearm as a felon, who also has three prior “violent felony” or “serious drug offense” convictions, must receive a mandatory minimum of fifteen years in prison.[4]  Mr. Hodge’s Presentence Investigation Report (“PSR”) designated exactly three qualifying, or ACCA predicate, convictions: a July 1992 felony drug possession with intent to distribute, a July 1998 felony drug possession with intent to distribute, and three counts of misdemeanor reckless endangerment in 1998.[5]  The drug possession felonies qualified as “serious drug offense[s],” and – at the time – the misdemeanor reckless endangerment qualified as a “violent felony.”[6]  But another section of Mr. Hodge’s PSR, labeled “criminal history,” enumerated seven additional convictions.[7]  One of those convictions, a March 1992 felony cocaine possession with attempt to distribute, could have been designated in the PSR as an ACCA predicate conviction, as it was identical to the other cocaine possession charges that were so designated.[8]  But, for some reason, the Probation Office that prepared the PSR failed to designate the March 1992 felony as a qualifying predicate conviction, and the Government did not object to the Probation Office’s failure to so designate that conviction.[9]

After his plea, Mr. Hodge was sentenced to 188 months of imprisonment on the cocaine charge and 204 months of imprisonment on the firearm charge, running concurrently.[10]  In 2014, Mr. Hodge filed his first motion to vacate his sentence in district court, but it was dismissed as untimely.[11]  In 2015, however, the United States Supreme Court “substantially narrowed” the ACCA’s definition of a “violent felony” in Johnson v. United States[12] (referred to as Johnson II).[13]  Specifically, Johnson II struck down the ACCA’s “residual clause,” which classified “conduct that presents a serious potential risk of physical injury to another” as a “violent felony” for purposes of sentence enhancement.[14]  The Supreme Court then declared in Welch v. United States[15] that Johnson II would apply “retroactively on collateral review.”[16]  Pursuant to those rulings, the Fourth Circuit gave Mr. Hodge permission to file another motion to vacate his sentence.[17]

The Parties’ Arguments and the District Court’s Ruling

Mr. Hodge asserted that his reckless endangerment conviction was only an ACCA predicate conviction because of the now-unconstitutional residual clause.[18]  Because the reckless endangerment conviction no longer qualified as an ACCA predicate conviction, he only had two predicate convictions and the mandatory minimum of fifteen years did not apply.[19]

The Government agreed with Mr. Hodge that the reckless endangerment conviction no longer qualified as an ACCA predicate conviction, and it initially recommended to the district court that Mr. Hodge be resentenced.[20]  But ten days after filing papers agreeing with Mr. Hodge, the Government evidently discovered the March 1992 drug conviction could have served as a predicate conviction, if it had been so designated.[21] The Government therefore chose to argue that Mr. Hodge had four predicate convictions, and that the failure to designate the March 1992 conviction on the PSR notwithstanding, that conviction could be substituted for the reckless endangerment conviction that no longer qualified as an ACCA predicate.[22]  In order to excuse its failure to object to the Probation Office’s non-designation of the March 1992 conviction, the Government claimed that it would have been superfluous to designate more than three convictions.[23]

The district court sided with the Government and denied Mr. Hodge’s motion, ruling that courts “should ordinarily examine the defendant’s entire criminal record” when evaluating eligibility for ACCA sentence enhancement.[24]  The district court pointed to Mr. Hodge’s three convictions that could have been listed as ACCA predicates, although only two were so listed.[25]  In the district court’s view, because Mr. Hodge had the requisite three predicate convictions, it was of no consequence that the Government had failed to designate one of them in the PSR.[26]  Mr. Hodge then appealed to the Fourth Circuit, asking whether the Government would indeed be permitted to substitute the “potential ACCA predicate conviction that was listed in [Mr. Hodge’s] PSR but never designated nor relied upon as an ACCA predicate.”[27]

The Fourth Circuit’s Holding

Chief Judge Gregory, writing for the court, held that the Government was not permitted to substitute the undesignated potential ACCA predicate conviction for the conviction that no longer qualified.[28]  The Government could not substitute the undesignated conviction because it “failed to provide Hodge with sufficient notice of its intent to use this conviction to support an ACCA enhancement.”[29]  Defendants are entitled to “adequate notice of . . . the convictions that may support [an ACCA] enhancement,”[30] so that they may “contest the validity or applicability of the prior convictions upon which [the] statutory sentencing enhancement is based.”[31]  Applying the canon of expressio unius est exlusio alterius, the Government had indicated “an intentional exclusion” of the March 1992 conviction because the PSR expressly identified the three other convictions as ACCA predicates.[32]  And because the Probation Office did not designate the March 1992 conviction as an ACCA predicate and the Government did not object to that failure, if Mr. Hodge had wanted to challenge “the validity or applicability” of that conviction, he himself would have had to draw attention to it, an anomaly that the court said “would undermine the adversarial process.”[33]

The court rejected the Government’s contention that designating more than three predicate convictions would have been superfluous by noting that “the U.S. Probation Office often designates more than three convictions as ACCA predicates,”[34] and the Government’s inclusion of two convictions for felony possession of cocaine with intent to distribute but exclusion of the third conviction for the same crime militated the conclusion that the “exclusion was deliberate.”[35]

The court also noted that when a defendant fails to timely contest the designation of a crime as an ACCA predicate, the issue is waived on collateral review.[36]  In the court’s view, it is only fair to require the Government to meet the same standard.[37]  Citing a recent case in the First Circuit, the court recognized that “it is unfair to allow parties to surprise one another with new argument that they did not make at the appropriate procedural juncture.”[38]  In Mr. Hodge’s case, “the appropriate procedural juncture” was at sentencing.[39]  If the Government ever wanted to rely on the March 1992 conviction, it should have objected to the PSR “during the sentencing proceedings.”[40]  Because of the unfairness that the opposite rule would work on the defendant, the court held “that the Government must identify all convictions it wishes to use to support a defendant’s ACCA sentence enhancement at the time of sentencing.”[41]

This decision comports with the Eleventh Circuit’s holding in Bryant v. Warden, FCC Coleman–Medium.[42]  In that similar situation, a defendant had three designated ACCA predicate convictions, but a change in the law left one of those designations invalid; meanwhile, the Government urged that court to substitute a previously undesignated burglary conviction as the necessary third ACCA predicate conviction.[43]  The Eleventh Circuit refused to do so, relying on the Government’s failure to object to the district court’s non-designation of that conviction as a predicate conviction.[44]  Similarly, in United States v. Petite,[45] the Eleventh Circuit flatly stated, “The government cannot offer for the first time on appeal a new predicate conviction in support of an enhanced ACCA sentence.  The argument should have been made prior to or during sentencing. . . .”[46]

Conclusion

When the Government fails to designate a potential ACCA predicate conviction as such, it may not then seek it so designated in later proceedings to support an ACCA enhancement.[47]  The Fourth Circuit therefore reversed the district court’s denial of Mr. Hodge’s motion to vacate his sentence and remanded for resentencing.[48]  As of this writing, the resentencing hearing has not yet been scheduled.

[1] 902 F.3d 420 (4th Cir. 2018).

[2] Id. at 423.

[3] Id.

[4] Id. at 423–24.

[5] Id. at 424.

[6] Id.

[7] Id.

[8] Id. at 424–25.

[9] Id. at 426.

[10] Id. at 424.

[11] Id.

[12] 135 S. Ct. 2551 (2015).

[13] Hodge, 902 F.3d at 424–25.

[14] Id. at 425.

[15] 136 S. Ct. 1257 (2016).

[16] Hodge, 902 F.3d at 425.

[17] Id. at 424.

[18] Id. at 425.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id. at 428 n.4.

[24] Hodge v. United States, No. 1:16-CV-781, 2016 WL 7480397, at *3 (M.D.N.C. Dec. 29, 2016).

[25] Id. at *2.

[26] Id.

[27] Hodge, 902 F.3d at 426.

[28] Id. at 427.

[29] Id.

[30] Id. (quoting United States v. O’Neal, 180 F.3d 115, 125–26 (4th Cir. 1999)).

[31] Id. (quoting United States v. Moore, 208 F.3d 411, 414 (2d Cir. 2000)).

[32] Id. at 427–28.

[33] Id. at 428.

[34] Id. at 428 n.4.

[35] Id. at 428.

[36] Id. at 429.

[37] Id.

[38] Id. (quoting United States v. Fernandez-Jorge, 894 F.3d 36, 54 n.16 (1st Cir. 2018)).

[39] Id.

[40] Id.

[41] Id. at 430.

[42] 738 F.3d 1253, 1256–57 (11th Cir. 2013), overruled on other grounds by McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017).

[43] Id. at 1279.

[44] Id.

[45] 703 F.3d 1290 (11th Cir. 2013), abrogated on other grounds by Johnson II, 135 S. Ct. 2551.

[46] Id. at 1292 n.2.

[47] Hodge, 902 F.3d at 430.

[48] Id. at 432.

By: Nick McCauslin & Tristan Meagher

Sierra Club v. United States Army Corps of Engineers

In this civil case, the Sierra Club asked the Court to set aside the Army Corps of Engineers’ (“Corps”) verification which allowed for construction of the Mountain Valley Pipeline through West Virginia using the “dry cut” method for the construction of river crossings which would take four to six weeks to complete. West Virginia regulates the construction of river crossings, requiring them to be completed within 72 hours. The Fourth Circuit vacated the Corps’ verification, finding that the Corps did not have the authority to require the use of the “dry cut” method in lieu of West Virginia’s restriction. A more thorough analysis as to why the Corps lacked the authority is expected in a future opinion.

United States v. Gibbs

In this criminal case, Erik Gibbs sought an en banc rehearing of his case after a divided panel of the Court affirmed his twenty-four-month sentence violating the terms of his supervised release. The Court denied the petition. In voting to deny the petition and vacate the panel’s order, Judge Wynn noted that since Gibbs was now released from prison, his case is moot. The court elected to deny the petition prior to the filing of concurring, separate, and dissenting opinions, even though this practice is atypical, in order to avoid unnecessary delay or prejudice to the defendant.