Wake Forest Law Review

by: Hanna Monson and Sarah Spangenburg

Introduction

One recent issue circulating the legal world involves whether schools can discipline students for social media posts. In January 2018, the University of Alabama expelled a nineteen-year-old freshman after she posted two videos of her racist rantings to her Instagram account.[1] Another user recorded and posted the video on Twitter, which subsequently went viral and instilled anger both at the University of Alabama campus and across the country. As the University of Alabama is a public university, the student’s expulsion has raised questions surrounding the constitutionality of dismissing a student for using offensive speech. To further consider this constitutional issue, this post highlights some of the arguments made in a factually similar case Keefe v. Adams (8th Cir. 2016).[2] The Eighth Circuit concluded that a student who was removed from the Nursing Program of a college after he posted Facebook posts indicating frustration towards other students in the program did not have his First Amendment nor due process rights violated. While this Eighth Circuit case is the focus of our discussion, it is important to note that a case of this sort has also arisen in the Fifth Circuit, Bell v. Itawamba County School Board, where the Fifth Circuit also decided against the student and determined that his First Amendment free speech rights were not violated.[3]

Facts

Craig Keefe was a student in the Associate Degree Nursing Program at Central Lakes College.[4] Two students complained about posts the Keefe made on his Facebook account.[5] After a meeting with CLC Director of Nursing Connie Frisch during which “[Keefe] was defensive and did not seem to feel responsible or remorseful,” Frisch made the decision that Keefe should no longer be in the program.[6] In a letter sent to Keefe after the meeting, Frisch expressed concerns about Keefe’s professionalism and inability to represent the nursing profession because of his posts.[7] All students enrolled in this program had to follow the Nurses Association Code of Ethics, which included guidance on issues such as “relationships with colleagues and others,” “professional boundaries,” and “wholeness of character.”[8] Keefe appealed this decision to Vice President of Academic Affairs, Kelly McCalla, but the appeal was denied, prompting this lawsuit.[9]

First Amendment Claims

Keefe first contends that his First Amendment rights were violated because “a college student may not be punished for off-campus speech . . . unless it is speech that is unprotected by the First Amendment, such as obscenity.”[10] The Eighth Circuit addressed first the threshold question of whether a public university may even adopt this Code of Ethics.[11] The court held that the state has a large interest in the regulation the health profession, and “[b]ecause professional codes of ethics are broadly worded, they can be cited to restrict protected speech.”[12]

The court then considered Keefe’s contention that the university violated his First Amendment rights. The court held that “college administrators and educators in a professional school have discretion to require compliance with recognized standards of the profession, both on and off campus, ‘so long as their actions are reasonably related to legitimate pedagogical concerns.’”[13] Keefe’s words showed that he was acting contrary to the Code of Ethics, and “compliance with the Nurses Association Code of Ethics is a legitimate part of the Associate Degree Nursing Program’s curriculum . . . .”[14] The posts targeted and threatened his classmates and impacted their education, as one of the students stated she no longer wished to be in the same clinical as Keefe.[15] Keefe’s words also had the possibility of impacting patient care because adequate patient care requires the nurses to communicate and work together.[16] The court did not wish to interfere with Frisch’s discretion in deciding that Keefe’s actions showed that he was not fit for the profession, and the First Amendment did not prevent Frisch from making this decision.[17] Given that the district court had granted the defendant’s motion for summary judgment on the First Amendment claims, the Eighth Circuit affirmed.[18]

Due Process Claims

The second issue presented in this case was whether a violation of due process existed. Keefe argued that the Defendants violated his Fourteenth Amendment right to due process when he was removed from the Associate Degree Nursing Program.[19] Supreme Court precedent states that “federal courts can review an academic decision of a public educational institution under a substantive due process standard.”[20] One key inquiry is whether the removal was based on academic judgment that is not beyond the pale of reasoned academic decision making.[21] Even if a substantive due process claim is cognizable in these circumstances, there is no violation of substantive due process unless misconduct of government officials that violates a fundamental right is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience” of federal judges.[22] Here, the court determined that Keefe’s removal rested on academic judgment that was not beyond the pale of reasoned academic decision making.[23] Ultimately, the court determined that Keefe had no substantive due process claim.[24]

The court also analyzed the procedural due process claim that Keefe presented. Citing Goss v. Lopez[25], the Eighth Circuit highlighted that the Supreme Court has held that even a short disciplinary suspension requires the student “be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.”[26] The court believed that the Keefe’s removal after a disciplinary proceeding provided the kind of inquiry that involved effective notice and allowed Keefe to give his version of the events, thereby preventing erroneous action.[27] Ultimately, the court concluded that Keefe was given the due process he was required by the Fourteenth Amendment.

Conclusion

Ultimately, this issue presents free speech concerns for students. The decisions of the Eighth and Fifth Circuits seem to showcase that students’ free speech rights seem to stop at the door of the school, which contradicts much Supreme Court precedent. The prevalence of social media in today’s society ensures that this issue will continue to exist, and the Supreme Court one day might weigh in.

****

[1] Marwa Eltagouri, She was expelled from college after her racist chants went viral. Her mother thinks she deserves it.,Wash. Post (Jan. 19, 2018), https://www.washingtonpost.com/news/grade-point/wp/2018/01/19/she-was-expelled-from-college-after-her-racist-rants-went-viral-her-mother-thinks-she-deserves-it/?utm_term=.b0cd4c397d35.

[2] The full opinion can be found at: http://media.ca8.uscourts.gov/opndir/16/10/142988P.pdf.

[3] Mark Joseph Stern, Judges Have No Idea What to Do About Student Speech on the Internet, Slate (Feb. 18, 2016 5:15 PM), http://www.slate.com/articles/technology/future_tense/2016/02/in_bell_v_itawamba_county_school_board_scotus_may_rule_on_the_first_amendment.html.

[4] Keefe v. Adams, 840 F.3d 523, 525 (8th Cir. 2016).

[5] Id.at 526.

[6] Id. at 526–27.

[7] Id. at 527–28.

[8] Id. at 528–29.

[9] Id. at 526, 529.

[10] Id. at 529.

[11] Id. at 529–30.

[12] Id. at 530.

[13] Id. at 531 (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)).

[14] Id.

[15] Id. at 532.

[16] Id.

[17] Id. at 533.

[18] Id.

[19] Id. at 533.

[20] Regents of University of Michigan v. Ewing, 474 U.S. 214, 222 (1985).

[21] Keefe, 840 F.3d at 533-34.

[22] Cnty. of Sacremento v. Lewis, 523 U.S. 833, 847 n.8 (1998) (quotation omitted).

[23] Keefe, 840 F.3d at 534.

[24] Id.

[25] 419 U.S. 565, 581 (1975).

[26] Keefe, 840 F.3d at 535.

[27] Id.

By: Adam McCoy and Shawn Namet

Kenny v. Wilson

In this civil case, plaintiff-appellants, Kenny, argued the district court incorrectly dismissed their 42 U.S.C. § 1983 claim for lack of standing for failure to state an injury in fact.  The plaintiff-appellants challenge two South Carolina statutes as unconstitutionally vague that criminalize any person, including students, from disturbing any school or college.  The district court found fear of future arrest and prosecution under the vague statutes was not an injury sufficient to provide standing.  The Fourth Circuit overturned the district court decision and found the plaintiffs did have standing to challenge vagueness where they had been previously charged under the statute and did not know what future actions would be interpreted as violations.  The Fourth Circuit also found standing for claims that the statutes chill First Amendment speech because they were too vague to constitute what may be considered a violation.

Hodgin v. UTC Fire & Security Americas Corp., Inc.

In this civil case, the plaintiff-appellants, Hodgin, sued UTC Fire & Security Americas Corp., Inc., and Honeywell International, Inc., claiming they were vicariously liable for illegal calls made by telemarketers in violation of the Telephone Consumer Protection Act.  The district court granted summary judgment to UTC and Honeywell after denying plaintiffs’ motion to postpone the ruling on summary judgment until after the close of discovery.  The Fourth Circuit affirmed the district court’s denial of the motion to postpone because the plaintiffs failed to show the discovery allowed was not sufficient to allow them to find evidence to oppose summary judgment.  The plaintiffs had sufficient opportunity to depose the defendants and failed to identify what information they could have discovered to defeat summary judgment.

Sims v. Labowitz

In this civil case, the plaintiff-appellants, Sims, sued under 42 U.S.C. § 1983 alleging police detective Abbot’s search of his person violated the Fourth and Fourteenth Amendments by trying to force seventeen-year-old Sims to recreate a sexual explicit image he had sent a fifteen-year-old girl.  The district court dismissed the complaint based on Abbot’s qualified immunity.  The Fourth Circuit overturned the district court because a reasonable officer would have known that attempting to force a minor to recreate the sexually explicit image would invade the minor’s right to privacy.  Abbot would not be entitled to qualified immunity because a reasonable officer should have known the that action violated the constitution.

Sky Angel U.S., LLC v. Discovery Communications, LLC

This case involved a contract dispute between television distributor Sky Angel U.S. and media company Discovery Communications.  Discovery terminated its contract granting distribution rights to Sky Angel upon discovering that Sky Angel’s IPTV distribution system delivered content to consumers over the “public internet” without using a closed dedicated pathway.  The Fourth Circuit affirmed the District Court of Maryland’s finding that the contract was ambiguous on this point, and found that the District Court therefore properly considered extrinsic evidence.  The Fourth Circuit further agreed with the District Court that the extrinsic evidence established that Sky Angel had no reasonable expectation that it could distribute Discovery programming over the public internet because Discovery made its internal policy disallowing the distribution model clear to Sky Angel.

Int’l Brotherhood Local 639 v. Airgas, Inc.

In this labor dispute, the Fourth Circuit affirmed the District Court of Maryland’s issuance of a preliminary injunction preventing Airgas, Inc. from relocating some operations to nonunion facilities until the arbitrator in the case had issued a final decision regarding whether the relocation violated the collective bargaining agreement.  On appeal, however, the Fourth Circuit found the case to be moot because the arbitrator made a final decision in favor of the Union while Airgas’s appeal was pending.  The Fourth Circuit rejected Airgas’s argument that the case was still “live” because it would be entitled to damages in the event that the Fourth Circuit held the District Court had no jurisdiction to issue the injunction. Instead, the Fourth Circuit held that Airgas would not be entitled to damages because it had only been prevented from taking action it had no legal right to take under the collective bargaining agreement.  The Fourth Circuit added that while federal courts generally lack jurisdiction to issue injunctions in labor disputes, the case fell within the exception for cases in which the arbitrator would otherwise be unable to restore the status quo ante.

The dissent argued that the district court’s exercise of jurisdiction dangerously broadened a narrow exception.  According to the dissent, the case would set a precedent allowing courts to unduly interfere with labor disputes, noting that the extensive litigation surrounding the injunctive relief in this case was contrary to the purpose of the parties submitting to mandatory arbitration in the first place.  Further, the dissent argued that the case was not moot, as the district court’s lack of jurisdiction should have at least entitled Airgas to the $5,000 injunction bond paid by the Union.

U.S. v. Savage

In this criminal case, Defendant Savage appealed his convictions for banking fraud and identity theft on the basis that the district court did not conduct an in camera review of the prosecutor’s notes to determine whether information was being withheld that could impeach his accomplice’s testimony against him.  Savage enlisted an accomplice employed by the targeted bank to provide him with identifying information in customer’s accounts.  The accomplice agreed to testify against Savage.  Before the court is required to conduct in camera inspection under the Jencks Act, a defendant must establish a foundation for the request by stating with reasonable particularity a basis for his belief that material subject to required disclosure under the act exists.  Under the rule set forth in Brady v. Maryland, a defendant must show that “the non-disclosed evidence was favorable to the defendant, material, and that the prosecution had the evidence and failed to disclose it.”  373 U.S. 83 (1963).  The Fourth Circuit rejected Savage’s argument that the existence of some inconsistent statements properly disclosed by the prosecution required the district court to conduct in camera review of the prosecutor’s personal notes to determine if additional inconsistent statements were made.  Similarly, the existence of the disclosed inconsistent statements was insufficient to establish that the prosecution had additional material information it failed to disclose.

The Fourth Circuit rejected Savage’s argument that the district court erred in denying his requested jury instruction that would have instructed the jury to closely scrutinize accomplice testimony.  The jury found no error in refusing to distinguish accomplice witnesses from all witnesses and that the district court properly instructed the jury to closely scrutinize all witness testimony when determining credibility.

Savage also argued that the district court erred in permitting the jury to receive written jury instructions regarding aiding and abetting after declining to provide written copies of all jury instructions.  The Fourth Circuit rejected Savage’s argument, citing the strong deference afforded to trial courts in the use of jury instructions, finding no abuse of discretion.

U.S. v. Bell

This appeal arose from the district court’s order finding Respondent Kaylan Bell to be a “sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006, thereby civilly committing him to the custody of the Attorney General upon his release from prison.  Bell had a long history of numerous sexual offenses involving children, beginning in 1999, which were predominantly for repeatedly exposing himself to minors.  He challenged the district court’s finding that he would have serious difficulty refraining from child molestation upon release because it had been eighteen years since his last “hands-on” child molestation offense.  The Fourth Circuit affirmed the district court’s findings that, despite the time lapse, Bell’s repeated offenses established an inability to control his impulses.  The Fourth Circuit also found that the district court properly credited an expert who had twice prior declined to reach the conclusion that Bell was a sexually dangerous person as defined by the act because she had changed her position only after Bell reoffended just two weeks after his last release.

By Hailey Cleek & Raquel Macgregor

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

The Fourth Circuit Struck Down the Previous Executive Order

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

The New Presidential Proclamation

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

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

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

Arguments for Upholding the Presidential Proclamation

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

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

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

Arguments against the Presidential Proclamation

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

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

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

Conclusion

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

_______________

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

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

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

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

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

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

[7] See Proclamation, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

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

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

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

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

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

[17] Id. at 34-35.

[18] Id. at 35.

[19] Id. at 1.

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

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

[22] 8 U.S.C. § 1152(a) (2012).

[23] 8 U.S.C. § 1152(a)(1)(A) (2012).

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

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

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

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

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

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

[30] Id. at 612–13.

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

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

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

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

[35] Proclamation, supra note 1.

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

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

WE, THE CITIZENS OF MARYLAND, TRUSTING IN GOD, THE SUPREME RULER OF THE UNIVERSE, PLEDGE FAITH IN OUR BROTHERS WHO GAVE THEIR ALL IN THE WORLD WAR TO MAKE THE WORLD SAFE FOR DEMOCRACY. THEIR MORTAL BODIES HAVE TURNED TO DUST. BUT THEIR SPIRIT LIVES TO GUIDE US THROUGH LIFE IN THE WAY OF GODLINESS, JUSTICE, AND LIBERTY.
WITH OUR MOTTO, “ONE GOD, ONE COUNTRY AND ONE FLAG,” WE CONTRIBUTE TO THIS MEMORIAL CROSS COMMEMORATING THE MEMORY OF THOSE WHO HAVE NOT DIED IN VAIN.

By: Robert Tucci

On Wednesday, October 18, 2017, the Fourth Circuit issued a published opinion in American Humanist Association v. Maryland-National Capital Park & Planning Commission. Several residents of Prince George’s County, Maryland, along with the American Humanist Association (“AHA”) – a non-profit organization dedicated to upholding the founding principle of separation of church and state – brought suit against a Maryland government agency, claiming that the government’s maintenance of a 40-foot tall World War I Latin Cross monument violated the Establishment Clause. The district court granted summary judgment for the government, and the plaintiffs appealed. The Fourth Circuit reversed and remanded the decision of the lower court, finding that the Cross violated the second and third prongs of the Lemon test.

Facts and Procedural History

On September 28, 1919, several private organizers held a groundbreaking ceremony on land owned by the city of Bladensburg, Maryland, to begin erecting a giant 40-foot Latin Cross memorial. The Cross was built next to a pre-existing plaque which was placed to honor 49 World War I United States soldiers. To fund the construction of the Cross, the private organizers obtained funding from private donors. The donors were required to sign a pledge sheet, which recognized the existence of “one god” (text of pledge sheet above).

The private organizers ran out of money in 1922 to continue funding the project. As a result, a local post of the American Legion stepped in to continue fundraising and construction of the Cross. Several of the Legion’s fundraising and memorial services concerning the Cross, both before and after construction was completed, contained exclusively sectarian Christian activities. Such activities included prayers at invocations and benedictions, Sunday worship service, speaker-led prayers, and singing Christian hymns. The Legion completed construction in 1925, and placed the four-story tall Latin Cross in the median of a three-way highway intersection in Bladensburg.

On March 1, 1961, the Maryland-National Capital Park and Planning Commission (“Commission”), a Maryland government agency, obtained title to the Cross and the land beneath it. The Commission claimed it acquired the Cross for safety reasons due to the proximity of the Cross to a busy highway. Since 1961, the Commission has spent $117,000 to maintain and repair the Cross, with an additional $100,000 set aside in 2008 for future repairs.

The Cross is part of the Bladensburg Veterans Memorial Park. All other monuments in the park are ten feet tall or shorter, devoid of religious iconography, and located at least 200 feet from the Cross. The Legion’s symbol (a small star inscribed with “U.S.”) is attached near the top of the Cross, and an American flag resides near the Cross. The plaque honoring the 49 soldiers sits on an obscured corner on the Cross’s rectangular base, and has been weathered to the point of being illegible.

The AHA and several non-Christian residents of Prince George’s County, who faced multiple instances of unwelcome contact with the Cross while driving, filed suit against the Commission, claiming that the Cross amounts to government affiliation with Christianity. The AHA and residents sought a declaratory judgment that the Commission’s conduct violates the Establishment Clause and the plaintiffs’ constitutional rights, an injunction enjoining the Commission from displaying the Cross on public property, nominal damages, and attorney’s fees and costs.

Both sides filed cross-motions for summary judgment, with the district court granting summary judgment to the Commission. The district court found that the Commission and Cross satisfied the three prong test set out in Lemon v. Kurtzman. The plaintiffs subsequently appealed to the Fourth Circuit.

Do Plaintiffs Have Standing to Sue?

The Court first analyzed the Commission’s argument that the plaintiffs lack standing to bring suit. The Commission contended that the plaintiffs had not “forgone any legal rights” as a result of the Commission’s conduct. The Court rejected this argument, stating that “[a]n Establishment Clause claim is justiciable even when plaintiffs claim noneconomic or intangible injury.” Specifically, the Court found that the non-AHA plaintiffs have standing due to their alleged unwelcome direct contact with the Cross, and that the AHA has standing to sue because an association can sue on behalf of its members if the members would also have standing to sue on their own.

Does Van Orden Control?

The Court then turned to the Commission’s argument that the holding in Van Orden v. Perry, rather than the Lemon test, should control. Van Orden dealt with a similar issue of whether a monument displaying the Ten Commandments on government property violated the Establishment Clause. The Court acknowledged that the plurality opinion in Van Orden is favorable to the Commission, but declined to follow it due to Justice Breyer’s controlling (and limiting) concurrence.

In his concurrence, Justice Breyer lays out several non-exhaustive factors for evaluating monuments eliciting both a secular and non-secular purpose, including: (1) the circumstances surrounding the monument’s placement; (2) its physical setting; and (3) the length of time it remains unchallenged. However, the Court noted that Justice Breyer reaffirmed Lemon by saying that it is a “useful guidepost[],” and remains a “more formal Establishment Clause test[].” Thus, the Court chose to apply the Lemon test, while giving due consideration to the Van Orden factors.

Does the Bladensburg Cross Satisfy the Lemon Test?

Next, the Court analyzed whether the Bladensburg Cross is constitutional under the Lemon test. A government display is constitutional under the Lemon test if it satisfies three prongs: (1) the display has a secular purpose; (2) the display does not have a “principle or primary effect” that advances, inhibits, or endorses religion; and (3) the display does not foster “an excessive entanglement between government and religion.” If the display violates even one prong, it is unconstitutional.

Secular Purpose

The Court held that the Cross satisfied the first prong of the Lemon test. The Court acknowledged that it is a fairly low burden to establish a secular purpose for a government display, because even if the display has “dual legitimate purposes” (one secular and one sectarian), it still satisfies the first prong of the Lemon test. The Commission articulated several secular reasons for displaying and maintaining the Cross, including ensuring safety near a busy highway, and the preservation of a significant war memorial. The Court found these to be legitimate secular reasons, thus finding that the Cross satisfied the first prong of the Lemon test.

Primary Effect

Next, the Court held the Cross violated the second prong of the Lemon test. The Court found the relevant question under the second prong to be “does the practice under review in fact convey a message of endorsement or disapproval of religion?” The Court stated that this question must be answered from the perspective of a “reasonable observer” – someone who “must be deemed aware of the history and context of the community and forum in which the religious speech takes place.” Therefore, the Court found that a detailed factual analysis of the Cross’ meaning, history, and secularizing elements was required to determine its primary effect.

Under the “meaning” inquiry, the Court concluded that the Latin cross is the “preeminent symbol of Christianity,” one that is not a symbol of any other religion. The court went on to say that even the Latin cross’ supposed secular symbology of death and memorialization is tied to the Christian sectarian teaching of Jesus Christ’s death and resurrection. Further, the Court found the Latin cross differed from other religious monuments, like the Ten Commandments, as it is not tied to the United States’ history and government.

Turning to the “history” inquiry, the Court found that, while the history of Latin Cross’ in general favors the plaintiffs, the history of the Bladensburg cross does not favor either party over the other. The Court centered its analysis around the fact that the Cross has a “semisecular” history, as it has been the object of both sectarian Christian activities – including Christian prayers, Sunday services, and fundraising using the donor’s pledge above – and secular Veterans-focused ceremonies.

Finally, the Court determined that, while the Cross does contain a few secular elements, they are easily overshadowed by the sectarian ones. In coming to its conclusion, the Court cited the fact that the Cross is much larger than the rest of the monuments in the Bladensburg Veterans Memorial Park, is 200 feet or more from any of the other monument, and that the “immense size and prominence of the Cross necessarily ‘evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones'” (referencing the Latin crosses in Arlington Cemetery).  Additionally, the Court emphasized the fact that the Christian iconography of the Cross was clearly visible to observers, while the secular symbols were hidden or obscured.

Ultimately, the Court concluded that a reasonable observer would “fairly understand the Cross to have the primary effect of endorsing religion,” as the factors above “collectively weigh in favor of concluding that the Cross endorses Christianity – not only above all other faiths, but also to their exclusion.” Thus, the Court held that the Cross violated the second prong of the Lemon test.

Excessive Entanglement

Lastly, the Court held that the Cross violated the third prong of the Lemon test. In coming to this determination, the Court said that excessive entanglement with religion “is a question of kind and degree,” and may include “pervasive monitoring or other maintenance by public authorities.” The Court found the Cross excessively entangles the government with religion for two reasons: (1) the Commission owns and maintains the Cross and the property it is displayed on, and (2) the Commission is displaying the “hallmark symbol of Christianity” in a very dominant and visible fashion that excludes all other religious iconography and tenants.

Conclusion

The Forth Circuit held that the Commission’s ownership and maintenance of the Bladensburg Cross violates the second and third prong of the Lemon test, and is an unconstitutional government endorsement of religion under the Establishment Clause. The Court reversed the decision of the district court and remanded the case for further proceedings.

By Chase Stevens

Overview

On October 17, 2017, the Fourth Circuit published its decision in Borzilleri v. Mosby. This case dealt with the issue of First Amendment rights for prosecutors engaging in political activity as private citizens.

Since around 2006, Plaintiff (Borzilleri) had been an Assistant State Attorney, which required her to make plea deals and try serious cases. In 2014, while serving as an Assistant District Attorney in Baltimore City, Borzilleri chose to support the losing candidate, Gregg Bernstein, in the Democratic primary for State Attorney. Defendant (Mosby), who won that Democratic primary, was later elected as the new State Attorney. Four days after Defendant took office on January 5, 2015, Defendant fired Plaintiff without explanation.

Plaintiff filed suit against Defendant in the District of Maryland on December 9, 2015, alleging that Defendant violated her First Amendment rights to free association and speech. Defendant filed a motion to dismiss for failure to state a claim. The district court granted Defendant’s motion to dismiss, holding that Plaintiff’s First Amendment rights were not violated because assistant state attorneys are “policymakers” and that political loyalty to the State’s head attorney was an appropriate requirement. The district court also held that Plaintiff’s free speech rights were not violated because, as a policymaker, the balance of free speech interests tipped in favor of the government.

Freedoms of Association and Speech Not Violated

The Fourth Circuit affirmed the district court’s dismissal of Plaintiff’s complaint.

First, the Fourth Circuit held that the firing of Plaintiff did not violate her First Amendment right to free association. In Elrod v. Burns, the Supreme Court held that under the First Amendment, “policymakers” could be discharged for their political beliefs. 427 U.S. 347, 375 (1976) (Stewart, J., concurring). The Fourth Circuit reasoned that because Assistant State Attorneys exercise discretion on matters of political concern in carrying out their function and have a special role in implementing the State’s Attorney’s policies, they are policymakers. Here, the Fourth Circuit held that Assistant State Attorneys are policymakers under the First Amendment, and therefore there was no First Amendment association violation.

Second, the Fourth Circuit held that Plaintiff’s firing did not violate her First Amendment right to free speech. Initially, the Court found that Plaintiff spoke as a private citizen in endorsing a candidate and was not speaking within her duties as a prosecutor. Relying upon their policymaking determination in the first issue, however, the Fourth Circuit found that policymakers enjoy “substantially less” free speech protection, even when acting as private citizens. The Court found that the government’s overriding interest in “ensuring an elected official’s ability to implement his policies through his subordinates” outweighed Plaintiff’s right to remain an Assistant State Attorney after engaging in her political speech. Therefore, Plaintiff had no First Amendment claims against Defendant.

Plaintiff’s Arguments

While Plaintiff ultimately lost her case, she raised several important considerations in her appellant’s brief.

First, in regard to the First Amendment free association claim, Plaintiff argued that political loyalty should not be an appropriate job requirement for prosecutors. Plaintiff argued, though, that even if loyalty to Defendant was an appropriate requirement for the job of Assistant State Attorney, there was no evidence that Plaintiff was ever disloyal to Defendant prior to her termination. Moreover, Plaintiff argued that because an Assistant State Attorney’s job does not involve creating policy, that role should not count as a “policymaker” falling outside of First Amendment protection. The Fourth Circuit, however, rejected this argument.

Second, in regard to the First Amendment free speech claim, Plaintiff argued that her rights to free speech were violated because Defendant terminated her in retaliation for the exercise of her political speech. Plaintiff argued that Defendant overly relied upon Plaintiff’s role as a “policymaker” to negate any First Amendment claims, when prior courts only looked at the “policymaker” status of a job as one of many factors to consider in assessing a free speech claim. Applying a free speech balancing test, Plaintiff argued that her speech should be protected because it never actually disrupted, and would never reasonably disrupt, governmental efficiency.  Once again, the Fourth Circuit rejected this argument.

Conclusion

This case lays out the general rule that assistant prosecutorial attorneys, working under the direction of elected head prosecutors, are policymakers for the purposes of First Amendment rights. Therefore, assistant prosecutorial attorneys are entitled to less protection of First Amendment rights when engaged in political speech, even as private citizens. When openly supporting a political candidate for the head prosecutor in their office, an assistant prosecutorial attorney should be aware that he might not have a legal claim of action should the opposing candidate win and he is subsequently fired.

American Humanist Association v. Maryland-National Capital Park

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

Borzilleri v. Mosby

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

Weekly Roundup 10/9-10/13
By: Evan Reid & Ashley Collette

United States v. Salmons
In this criminal case, the defendant appealed the district court’s decision, which found his prior crime of aggravated robbery was a predicate crime under the force clause of U.S.S.G.§ 4B1.2, thus requiring a longer minimum sentence. The Fourth Circuit affirmed the judgment of the district court, holding that aggravated robbery was categorically violent.

Fawzy v. Wauquiez Boats SNC
In this admiralty and maritime case, the plaintiff appealed the district court’s decision dismissing the case for lack of jurisdiction. The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction, finding that the district court’s decision was not final because the plaintiff had filed an amended complaint prior to the court’s dismissal of the case.

Lucero v. Early
In this First Amendment case, the plaintiff appealed the district court’s decision dismissing his claim challenging the constitutionality of a protocol that he was arrested for violating. The Fourth Circuit vacated the judgment of the district court and remanded the case, finding the district court did not consider all relevant facts and law in determining whether the protocol was content neutral.

Siena Corporation v. Mayor and City Council of Rockville, Maryland
In this civil case, the plaintiff appealed the district court’s dismissal of its claim that the City Council violated its constitutional rights when it passed a zoning amendment prohibiting the construction of a self-storage facility based on its proximity to a school. The Fourth Circuit affirmed the dismissal, holding that the plaintiff did not have a constitutionally-protected property right.

By: Kristina Wilson

On Monday, March 20, 2017, the Fourth Circuit issued a published opinion in the civil case Grutzmacher v. Howard County. The Fourth Circuit affirmed the District Court for the District of Maryland’s grant of summary judgment in favor of the defendant, holding that the defendant’s termination of plaintiffs did not violate the plaintiffs’ First Amendment Free Speech rights. The plaintiff raises two arguments on appeal.

Facts and Procedural History

Prior to initiating this action, plaintiffs worked for the defendant, the Howard County, Maryland Department of Fire and Rescue Services. In 2011, the defendant started drafting a Social Media Policy (“the Policy”) in response to a volunteer firefighter’s inflammatory and racially discriminatory social media posts that attracted negative media attention. The Policy prevented employees from posting any statements that may be perceived as discriminatory, harassing, or defamatory or that would impugn the defendant’s credibility. Additionally, in 2012, the defendant promulgated a Code of Conduct (“the Code”) that prohibited disrespectful conduct toward authority figures or the chain of command established by the defendant. Finally, the Code required employees to conduct themselves in a manner that reflected favorably on the defendant.

On January 20, 2013, one of the plaintiffs advocated killing “liberals” on his Facebook page while on duty for defendant. The defendant asked the plaintiff to review the Policy and remove any postings that did not conform. Although the plaintiff maintained that he was in compliance with the Policy, he removed the January 20th posting. On January 23, 2013, the plaintiff posted a series of statements that accused the defendant of stifling his First Amendment rights. On February 17, 2013, the plaintiff also “liked” a Facebook post by a coworker was captioned “For you, chief” and displayed a photo of an obscene gesture. Shortly thereafter, the defendant served the plaintiff with charges of dismissal and afforded the plaintiff an opportunity for a preliminary hearing on March 8, 2013. On March 14, 2013, the defendant terminated the plaintiff.

At the district court, the plaintiff argued that the defendant fired him in retaliation for his use of his First Amendment Free Speech rights and that the Policy and Code were facially unconstitutional for restricting employees’ Free Speech. The district court granted the defendant’s motion for summary judgment regarding the retaliation claims, holding that the plaintiff’s January 20th posts and “likes” were capable of disrupting the defendant’s ability to perform its duties and thus did not constitute protected speech. Similarly, the January 23rd post and February 17th “like” were not protected speech because they did not implicate a matter of public concern. In June of 2015, the defendant revised its Policy and Code to eliminate all the challenged provisions. As a result, the district court dismissed the plaintiff’s facial challenge as moot.

The Plaintiff’s Free Speech Rights Did Not Outweigh the Defendant’s Interest

In evaluating the plaintiff’s First Amendment retaliation claim, the Fourth Circuit applied the Mcvey v. Stacy three-prong test. 157 F.3d 271 (4th Cir. 1998). Under Mcvey, a plaintiff must show the following three conditions: i) that he was a public employee speaking on a matter of public concern, ii) that his interest in speaking about a matter of public concern outweighed the government’s interest in providing effective and efficient services to the public, and iii) that such speech was a “substantial factor” in the plaintiff’s termination. Id. at 277–78.

The first prong is satisfied when a plaintiff demonstrates that his speech involved an issue of social, political, or other interest to a community. Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc). To determine whether the issue was social, political, or of interest to a community, courts examine the speech’s content, context, and form in view of the entire record. Id. The Fourth Circuit concluded that at least some of the content of plaintiff’s posts and “likes” were matters of public concern because the public has an interest in the opinions of public employees. Although not all of the postings were of public concern, the Fourth Circuit advocated examining the entirety of the speech in context and therefore proceeded to the second prong of the Mcvey analysis.

The Mcvey Factors Weighed More Heavily in Favor of the Defendant

The Fourth Circuit next balanced the plaintiff’s interest in speaking about matters of public concern with the government’s interest in providing efficient and effective public services. The Fourth Circuit used the Mcvey multifactor test to weigh the following considerations: whether a public employee’s speech (1) impaired the maintenance of discipline by supervisors; (2) impaired harmony among coworkers; (3) damaged close personal relationships; (4) impeded the performance of the public employee’s duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee’s role entailed. McVey, 157 F.3d at 278.

The Fourth Circuit held that all of the factors weighed in favor of the defendant. The first factor was satisfied because plaintiff was a chief battalion, a leadership position, and allowing plaintiff to violate the Policy and Code without repercussions would encourage others to engage in similar violations. The second and third factors weighed in the defendant’s favor because several minority firefighters issued complaints and refused to work with the plaintiff after the posts. Similarly, the fourth factor weighed in the government’s favor because of the plaintiff’s responsibilities as a leader. The plaintiff’s leadership duties depended on his subordinates taking him seriously and looking to him as an example. By violating the policies he was supposed to uphold, the plaintiff failed to act as a leader and carry out his duties as chief battalion. Finally, plaintiff’s actions also “undermined community trust” by advocating violence against certain groups of people. Community trust and preventing violence are central to the defendant’s mission because the defendant’s function is to protect the community. Therefore, although plaintiff’s speech did involve some matters of public concern, the matters were not of sufficient gravity to outweigh all nine factors of the Mcvey multifactor test. Thus, the government’s interest in effectively providing public services outweighed the plaintiff’s interest in speech about public concerns.

The District Court’s Dismissal of the Facial Challenge on Mootness Grounds Was Proper

While defendant repealed all the challenged sections of the Policy and Code, a party’s voluntary repeal of provisions can only moot an action if the wrongful behavior can be reasonably expected not to recur. The Fourth Circuit affirmed the district court’s dismissal of the facial challenge for mootness because the current Fire Chief issued a sworn affidavit asserting that the defendant will not revert to the former Policy or Code. Additionally, the defendant’s counsel at oral argument declared that the defendant has no hint of an intent to return to the former guidelines. The Fourth Circuit held that these formal declarations were sufficient to meet the defendant’s mootness burden.

Conclusion

The Fourth Circuit affirmed both the district court’s grant of summary judgment and its grant of a motion to dismiss on mootness grounds.

 

By Mike Stephens

On Thursday, February 23, 2017, the Fourth Circuit issued a published opinion in Heyer v. U.S. Bureau of Prisons. Appellant, Thomas Heyer, brought several claims against the United States Bureau of Prisons (BOP) for failing to accommodate his deafness. After reviewing the district court’s grant of summary judgment in favor of BOP, the Fourth Circuit vacated and remanded the order.

Facts and Procedural History

After Heyer’s initial sentence expired, he remained in civil custody after being deemed “sexually dangerous to others.” He was born deaf and his native language is American Sign Language (ASL) . Given the dramatic differences between ASL and English, Heyer is unable to communicate effectively in English. Since his arrival at the prison, Heyer has repeatedly requested ASL interpreters. His inability to communicate with others has created several problems. Heyer is unable to communicate with the mental health officials responsible for determining the duration of his stay in prison. Heyer has suffered several strokes at the prison and has not been provided a way to communicate with medical personnel. He has also does not attend religious services and is unable to access goods sold because there are no translators. Additionally, Heyer has repeatedly been late or missed scheduled activities because he cannot hear announcements and does not have a vibrating watch or bed.

In 2011, Heyer filed suit against BOP asserting multiple violations of his First and Fifth Amendment rights. His Fifth Amendment claims were based on BOP’s failure to provide translators that would allow him to communicate with the medical and mental health professionals. Furthermore, the complaint alleged Heyer’s First Amendment rights had been violated by BOP’s refusal to provide a videophone and its failure to have translators present at the religious services. The district court granted summary judgment in favor of BOP.

Heyer’s Fifth Amendment Claims

Heyer alleges that BOP’s repeated failure to accommodate his deafness violates his Fifth Amendment rights because it rises to the level of “deliberate indifference.” While this standard is most often used in claims arising under the Eighth Amendment, the Fourth Circuit applied it to Heyer’s Fifth Amendment claims. The standard has two components: the plaintiff must show that he has serious medical needs, an objective standard, and that the defendant acted with deliberate indifference to those needs, a subjective standard. Heyer did not claim his deafness constituted a “serious medical need.” Rather, Heyer’s complaint alleged that BOP’s failure to provide interpreters for his interaction with medical professionals has resulted in inadequate treatment for his medical needs. BOP argued that because Heyer had suffered any actual injury, the standard had not been violated.

The Fourth Circuit agreed and held that Heyer had presented enough evidence to satisfy the deliberate indifference standard. The Court rejected the BOP’s argument, holding that BOP’s actions had exposed Heyer to a substantial risk of serious harm. The Fourth Circuit reasoned that Heyer’s continued seizures, coupled with his inability to communicate with the medical staff, was sufficient to satisfy the object prong.

The Fourth Circuit held that Heyer satisfied the subjective prong as well. BOP argued that Heyer presented no evidence showing BOP knew that the failure to provide translators created a serious risk to his health. Additionally, BOP argued that providing Heyer with assistance from other inmates constituted constitutionally adequate treatment. Again, the Fourth Circuit rejected BOP’s argument. Given BOP’s awareness of Heyer’s deafness, the Court reasoned that BOP was well aware that the failure to provide translators would create for ineffective medical treatment. This awareness, the Court reasoned, was sufficient for a factfinder to conclude the BOP was deliberately indifferent.

First Amendment Claims

Heyer’s alleged that the refusal to provide a videophone violated his First Amendment right to communicate with others outside of the prison. BOP countered that the refusal was merely an unwillingness to provide Heyer with his preferred method of communication. As such, BOP argued that it did not “impinge” on Heyer’s constitutional rights because Heyer could use the TTY devices at the prison.

The Fourth Circuit rejected BOP’s argument. TTY devices require the users to be proficient in English. Given that Heyer could not communicate in English, the Court reasoned that requiring Heyer to use TTY devices to communicate impinged on his First Amendment rights. The Court then proceeded to determine whether requiring Heyer to use the TTY devices was reasonably related to the penological interests of the prison. The Court applied the four factor test as required by Turner v. Safley. Ultimately, the Court found that the factors created issues of fact to be decided at trial. First, there was a factual dispute as to whether the TTY devices provided Heyer an effective means of communication. Second, a question of fact arose as to whether BOP would have to install new IT infrastructure to maintain prison safety. Lastly, the Court found a factual dispute as to whether there were alternative communicative devices available for use by Heyer. Ultimately, given the disputed facts, the Fourth Circuit found the district court erred in granting BOP’s motion for summary judgment. The Fourth Circuit also found a dispute of fact existed as to whether BOP had unreasonably restricted Heyer’s access to the TTY devices.

Lastly, Heyer alleged that the refusal to provide interpreters at the religious services violated his First Amendment rights. The district court dismissed these claims, finding that they were moot given BOP had provided interpreters to Heyer for other occasions. The BOP argued that a 2014 affidavit from the prison chaplain showed that BOP would provide an interpreter if necessary.

The Fourth Circuit also rejected this argument. The Court found that the affidavit was merely a “mid-litigation change of course” given the BOP had failed to provide an interpreter to Heyer for a religious service. The Court reasoned that an assurance to provide an interpreter in the future did not make Heyer’s claim moot.

Conclusion

The Fourth Circuit vacated the district court’s grant of summary judgment on Heyer’s First and Fifth Amendment claims. The case was remanded to the district court for further proceedings.

By M. Allie Clayton

On February 15, 2017, in the civil case of Crouse v. Town of Moncks Corner, the Fourth Circuit held that the police chief in Moncks Corner had qualified immunity against a claim by two police officers that they had been fired in retaliation for the exercise of their First Amendment rights.

Initial Facts

Appellants are two detectives, Richard Crouse and George Winningham, who were forced to resign from the Moncks Corner Police Department in October 2013.  The officers were forced to resign due to an interaction they had with Mr. Berkeley regarding Mr. Berkeley’s treatment at the hands of their supervising officer, Lieutenant Michael Roach.  Mr. Berkeley was arrested by Lt. Roach on October 4th. Prior to this incident, the relationship between Lt. Roach and the two detectives, Crouse and Winningham, had been deteriorating, with at least one of the detectives complaining to Captain Murray and Chief Caldwell. Prior to the incident with Mr. Berkeley, the complaints dealt with his management style, treatment of criminal suspects, and showing the officers inappropriate pictures, but did not include accusations of excessive use of force.

The Incident(s) with Mr. Berkeley

On October 4, 2013, James Berkeley was arrested by Lt. Roach. Reports of the arrest conflicted, even by those who were present. The actual facts of the arrest are inconsequential, however, because, on Monday, October 7, 2013, Crouse and Winningham heard a version of what happened. Another officer told Crouse and Winningham that he had heard that Lt. Roach had “kneed Mr. Berkeley in the groin.” Crouse and Winningham further investigated the arrest incident by reading the incident report and viewing pictures of the incident. Crouse talked to Capt. Murray about his concern.

The next day, October 8, 2013, Crouse and Winningham decided to speak to Berkeley. During lunch, the two officers went to Berkeley’s house. Although the two were wearing plain clothes and driving in an unmarked car, the officers’ badges and guns were visible. The two were sitting outside Berkeley’s home for a few minutes when they saw Berkeley and initiated a conversation with him. Crouse and Willingham encouraged Berkeley to file a complaint against Roach, telling him that other officers supported his version of the story. Winningham suggested Berkeley get an attorney. Crouse handed Berkeley a form that the police department had created for citizens to submit complaints about police officers. That form was freely available in the police station and had been handed out upon request by clerical staff and police officers.

Crouse and Winningham attempted to conceal the fact that they had met with Berkeley. Crouse made sure that his fingers never touched the form that was given to Berkeley. Crouse also instructed Berkeley to pretend that he did not recognize the officers if they saw each other later. The two originally agreed to tell anyone who asked that Berkeley had flagged them down, but later decided that they would tell the truth if they were questioned.

All of the countermeasures that the two men used to try to conceal their interaction with Berkeley were in vain, as Mr. Berkeley called Officer Winder that same day. Berkeley told Officer Winder that a Moncks Corner police officer had encouraged him to sue Roach and the Moncks Corner police department. Officer Winder informed Chief Caldwell, who responded by assigning Lieutenant Mark Fields to investigate both Berkeley’s claim of excessive use of force and Berkeley’s visit by the mystery officers.

The Investigation by Lt. Fields

The investigation by Lt. Fields did not require much in order to discover who the mysterious officers were. On October 15, 2013, Lt. Fields interviewed Mr. Berkeley, both about the arrest and about the mysterious officers. Based on the physical description of the two men, Fields immediately suspected Winningham and Crouse. Fields told Chief Caldwell of his suspicions and then proceeded to interview Crouse and Winningham separately. Both Crouse and Winningham admitted what they had done, both orally and in written statements. Fields told Chief Caldwell of the confession. Chief Caldwell then instructed Captain Murry to offer Crouse and Winningham an ultimatum: either the two could voluntarily resign or they would be terminated.

Procedural History

On February 19, 2014, Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner. They raised three claims, two about their wages and a claim under 42 U.S.C. §1983. Regarding their §1983 claim, the detectives argued that their forced resignations were unconstitutional because they were in retaliation for the detective’s exercise of their First Amendment rights. The district court held that Chief Caldwell was entitled to qualified immunity regarding the First Amendment claim and granted summary judgment in favor of Chief Caldwell. The district court reasoned that the Chief was entitled to qualified immunity because, under Garcetti v. Ceballos, acting as a private citizen was a required element of a First Amendment retaliation claim, and the plaintiffs did not clearly establish that element. The two other claims were dismissed without prejudice, and the plaintiffs re-filed those claims as a separate action.

The Issue

The issue in this case is whether the chief of police had qualified immunity on the 42 U.S.C. The §1983 claim, and, if the chief did not have qualified immunity, whether the plaintiffs’ First Amendment rights were violated.

The Law

Employees do not surrender their First Amendment rights, even if they are employed by the government. The interests underlying the rule are both the employee’s interest in commenting upon matters of public concern and the community’s interest in hearing the opinion of the employees’ informed opinions. (See Pickering v. Bd. of Educ. & City of San Diego v. Roe). While the government employer might impose certain restraints on the employees’ speech.

Under McVey v. Stacy, the Fourth Circuit has established a three-prong test to determine whether an employee’s First Amendment rights were violated. The first two prongs of which are questions of law. The first prong involves two inquiries: (1) whether the speech was made as a citizen or pursuant to the employee’s duty & (2) whether the speech addressed a matter of the community’s interest or complaints regarding internal office affairs. If the speech was made as a private citizen about a matter of public concern, the inquiry can proceed to the second prong. The second prong requires the court to balance the interest of the employee in speaking and the interest of the government in providing efficient services, which requires a “particularized inquiry into the facts of a specific case.” Only if the employee’s interest outweighed the government employer’s interest, does the court proceed to the third prong—a determination whether the speech caused the disciplinary action.

Qualified Immunity

An employer is entitled to qualified immunity from those claims if either of the first two prongs cannot be resolved under clearly established law. Under Ashcroft v. al-Kidd, to defeat a claim for qualified immunity, a plaintiff must show two things: (1) that the official violated a constitutional or statutory right & (2) that the right was “clearly established at the time of the challenged conduct.” In order to demonstrate that the right was clearly established, there must be existing precedent that places the statutory or constitutional question beyond debate. The inquiry depends on the official’s perceptions when the incident occurred.

Holding and Reasoning

Chief Caldwell is entitled to qualified immunity because he reasonably could have viewed the actions of Crouse and Winningham as “surreptitious conduct designed to foment complaints and litigation against a supervisor with whom they did not get along. The Fourth Circuit further stated that the right is not clearly established in this case, and thus the Fourth Circuit did not even address whether or not the constitutional violation occurred.

The Fourth Circuit affirmed the district court which stated that Caldwell was entitled to qualified immunity because it was unclear whether Crouse and Winningham were speaking as citizens or as government employees.  The inquiry of whether Crouse and Winningham were speaking as citizens involves a practical inquiry into the employee’s daily professional activities to determine whether the task was within the scope of the employee’s duties.  The Court reasoned that under the facts to his case, Chief Caldwell was reasonably able to believe that Crouse and Winningham were speaking as employees of the police department.  Crouse and Winningham were identified as police officers and their speech resembled their daily duties as detectives.  According to the court, Chief Caldwell “is not liable for bad guesses in gray areas.” Because Chief Caldwell’s belief was reasonable, he is thus entitled to qualified immunity

Disposition

The Fourth Circuit affirmed the District Court of South Carolina’s decision that Chief Caldwell was entitled to qualified immunity. The Court affirmed that Chief Caldwell had a reasonable belief that Crouse and Winningham were acting as police officers and thus, have viewed his interest in maintaining discipline within the department as paramount, leading to a proper exercise of his discretion.

By Elizabeth DeFrance

On March 10, 2016 the Fourth Circuit Court of Appeals issued a published opinion in the civil case, American Civil Liberties Union of North Carolina v. Tennyson. The ACLU of North Carolina and several vehicle owners filed suit against Nicholas J. Tennyson, in his official capacity as Secretary of the North Carolina Department of transportation; and Kelly J. Thomas, in his official capacity as Commissioner of the North Carolina Division of Motor Vehicles alleging that North Carolina’s specialty license plate program violated the First and Fourteenth Amendments. The State offers a “Choose Life” license plate, but has repeatedly rejected requests for a pro-choice license plate option.

Earlier Opinion Vacated and Remanded Based on Walker Holding 

In the Fourth Circuit’s previous opinion in this case, the Court held that North Carolina’s specialty license plate program violated the First Amendment. In its appeal of the district court’s decision, the State argued that the message conveyed by the specialty license plates constituted government speech, and as such, the State was permitted to discriminate based on viewpoint. The Court rejected the State’s argument, reasoning that specialty license plates implicated private speech rights, and that the State’s offering a “Choose Life” plate without also providing a pro-choice option was viewpoint discrimination in violation of the First Amendment.

The Supreme Court granted certiorari and vacated the Fourth Circuit’s decision. The case was remanded for reconsideration in light of the Supreme Court’s decision in Walker v. Texas Division of the Sons of Confederate Veterans.

Specialty License Plates are a form of Government Speech

In Walker, the Supreme Court held that specialty license plate designs constitute government speech, and thus States are permitted to discriminate based on viewpoint within these programs.

North Carolina’s Specialty Plate Program was Indistinguishable from that in Walker

The Fourth Circuit reasoned that North Carolina’s specialty license plate program was “substantively indistinguishable from that in Walker, and the Walker Court’s analysis is dispositive of the issues in this case.”

North Carolina is Free to Reject Messages it Disagrees With

The Court held that North Carolina’s specialty license plates amount to government speech, and as such, the State is free to reject any proposed design whose message it disagrees with. Accordingly, the Court reversed the district court’s decision in favor of the plaintiffs, and remanded with instructions to enter judgment for the State.

Circuit Judge Wynn issued a dissenting opinion in which he determined that Walker’s holding did not require the Court to conclude that North Carolina’s specialty plates constituted purely government speech. He reasoned that the specialty plates constituted “mixed” speech with elements of both government and private speech. Because private speech rights were implicated, the State’s refusal to offer a pro-choice plate in addition to its “Choose Life” plate constituted viewpoint discrimination in violation of the First Amendment.

By Sarah Walton

On January 29, 2016, the Fourth Circuit issued a published opinion in the civil case of Central Radio Company Inc v. City of Norfolk. The Fourth Circuit dismissed the appeal in part, affirmed in part, reversed in part, and remanded the case to the district court for a determination regarding damages.

The Origins of the Dispute

Central Radio Company (“CRC”) is a radio manufacturing and repair business located in Norfolk, Virginia. In April 2010, the Norfolk Regional Housing Authority (“NRHA”) initiated a condemnation proceeding against CRC and other adjacent landowners. The NRHA initiated the proceeding so that it could transfer the land to Old Dominion University. The action was initially dismissed, but the NRHA appealed. While the appeal was pending, CRC put up a sign on the side of their building that said, “50 YEARS ON THIS STREET / 78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT DOMAIN!” An employee of Old Dominion University complained about the sign and a local zoning official for the City of Norfolk (“the City”) informed CRC that the banner violated Norfolk’s former sign code. The official cited CRC for displaying a sign that was too large and for failing to obtain a certificate before installing the sign. CRC subsequently filed an action to enjoin the city from enforcing the sign code.

The City’s Former Sign Code

The former sign code, which has since been amended, applied to “any sign within the city which is visible from any street, sidewalk or public or private common open space,” but did not include any “flag or emblem of any nation, organization of nations, state, city, or any religious organization,” or any “works of art which in no way identify or specifically relate to a product or service.” The code also mandated that individuals who wished to display a sign that fell within the aforementioned definition limit their sign to a certain size. The size of the sign depended on whether it was classified as “temporary” or “freestanding.”

Further, a sign that fell within the code’s definition had to be approved before being displayed. The individual seeking to display the sign had to apply for a certificate from the city, which in turn would review the application for compliance with the code. If the city determined that the sign complied with the code, it would issue a certificate to the individual seeking to display the sign.

The Supreme Court Vacates the Fourth Circuit’s Holding and Remands for Further Consideration

CRC alleged that the sign code was unconstitutional, arguing that it exempted certain flags or emblems, but not others. CRC also argued that the former sign code was a content-based regulation that warranted strict scrutiny. The district court disagreed. It held that the sign was content-neutral and applied intermediate scrutiny. In doing so, the district court concluded that the City’s justification for the regulation, which was to ensure that drivers and pedestrians would not be distracted when they viewed the signs from the road, satisfied intermediate scrutiny. CRC appealed and the Fourth Circuit affirmed the district court’s holding. CRC appealed to the Supreme Court, which vacated the Fourth Circuit’s ruling in light of its decision in Reed v. Town of Gilbert and remanded the case.

The Fourth Circuit Holds that the Sign was Content-Based and Applies Strict Scrutiny

On remand, CRC argued that the sign code was a content-based restriction on speech and the Fourth Circuit agreed. The court reasoned that the regulation applied to secular flags and banners, but did not apply to religious flags and banners, thereby making it a content-based restriction. Next, the court applied strict scrutiny and tested whether the City’s justification was compelling enough to restrict CRC’s speech. The court pointed out that neither it nor the Supreme Court had ever held that traffic safety was compelling enough to restrict speech. As a result, the Fourth Circuit reversed the district court on this issue.

The Fourth Circuit Dismisses CRC’s Claim for Prospective Relief and Affirms The District Court’s Holding Regarding CRC’s Discrimination Claim

CRC raised two other issues on appeal. First, CRC requested prospective relief based upon allegations of unconstitutional restrictions on speech. The court recognized that because the legislature amended the sign code and was unlikely to change it back to its prior form, the claim was moot and should be dismissed.

Second, CRC argued that the City applied the sign code in a discriminatory manner. The Fourth Circuit disagreed, holding that there was not enough evidence to show that the City acted with a discriminatory intent. As a result, the Fourth Circuit affirmed the district court’s holding on this issue.

The Fourth Circuit Dismisses in Part, Affirms in Part, Reverses in Part, and Remands for Further Proceedings

As a result, the Fourth Circuit dismissed CRC’s claim for prospective relief, affirmed the district court’s ruling on CRC’s discrimination claim, reversed the district court on the content-based versus content-neutral issue, and remanded the case for a determination of damages.

 

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