Wake Forest Law Review
9Nov

Fourth Circuit Rules Virginia’s Geriatric Release Program Violates Eighth Amendment Rights of Juveniles Serving Life Sentences for Non-Homicide Offenses

Categories: Civil Cases
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By John Van Swearingen

On Wednesday, November 9, 2016, the Fourth Circuit issued a published opinion in the civil case LeBlanc v. Mathena. This matter was a habeas corpus petition brought by a juvenile offender sentenced to life without parole for a non-homicide offense. The District Court of the Eastern District of Virginia had previously concluded that Virginia’s Geriatric Release program, which provides offenders sentenced to life without parole the opportunity to petition for conditional release after the age of sixty, violated the minimum standards of the incorporated Eighth Amendment as held in Graham v. Florida, 560 U.S. 48 (2010). In Graham, the Supreme Court of the United States held that the Eighth Amendment forbids the sentencing of juveniles convicted of non-homicide offenses to life without parole. Juvenile life sentences for non-homicide offenses must provide a meaningful and realistic opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Here, the circuit court affirmed the district court’s ruling, holding that Geriatric Release does not meet the requirements of Graham.

Facts and Procedural History

On January 1, 1995, Virginia enacted Va. Code Ann. § 53.1-165.1 (2015), abolishing parole for felonies convicted after that date. On July 6, 1999, the Petitioner committed the crimes of rape and abduction, and on July 15, 2002, he was convicted and sentenced to two life sentences.

After the Supreme Court decided Graham in 2010, the Petitioner filed a motion in Virginia state court to vacate his sentence of life without parole. In 2011, the state trial court denied Petitioner’s motion based on Angel v. Commonwealth, a contemporaneous Virginia Supreme Court decision holding that Virginia’s Geriatric Release program satisfied the requirements of Graham.

In June of 2012, the Petitioner filed a writ of habeas corpus in the District Court of the Eastern District of Virginia. The district court granted the habeas petition, holding that the Geriatric Release program did not meet the standards established in Graham. The Respondents in this case, the state, timely filed this appeal.

Virginia’s Geriatric Release Program

Virginia’s Geriatric Release program is a two-stage process by which convicted offenders with life sentences can apply for conditional release. Unlike Virginia’s abolished parole doctrine, the Geriatric Release program is not automatic. Offenders must initiate the process with a petition to the Parole Board – and again, they may only do so after their sixtieth birthday.

The first stage of the Geriatric Release process requires the offender’s petition demonstrate a “compelling” reason for the release of the offender. The term “compelling” is not defined in the relevant statute or administrative regulations. The Parole Board is able to deny the petition for Geriatric Release for any reason at this point.

Should the Parole Board permit the petition to go to the second stage, the offender will be provided the opportunity to make oral and written statements to the Parole Board to advocate for his or her release. If at least four out of five members of the Board agree, the offender’s petition for Geriatric Release will be granted.

Again, the process is distinguishable from the old parole system. Geriatric Release cannot be initiated until the offender turns sixty. Virginia’s parole process typically initiated after offenders had served about fifteen years. The Petitioner would likely have been eligible for parole, under the old system, after around twenty years. Under the Geriatric Release program, that length of time is approximately doubled. Further, only three out of five members of the Parole Board had to agree to grant parole. The Geriatric Release program requires one more member of the board for approval.

Standard of Review for Habeas Corpus Petitions

When a habeas petition is filed, the standard of review turns on whether the petition involves a question of law or fact. This case presents a question of law, meaning the standard of review is stated at 28 U.S.C. § 2254(d)(2) (2012). If the court’s decision was an “unreasonable determination” of how the law applies to the facts in this case, then the court’s decision was improper. If the decision was reasonable, it stands.

Habeas petitions in federal district courts must review the case at hand in addition to the most recent state case addressing the issue. In this case, the most recent state case was the Angel decision, which held that the Geriatric Release program met the requirements of Graham. Since the state decision is contrary to the district court’s decision, either Angel or the district court’s decision will be determined unreasonable, and one holding will be affirmed.

The Standard Established in Graham

The holding in Graham was based on the Supreme Court’s conclusion that juveniles are less culpable for crimes than adults. Juvenile brains, the Court noted, are still developing. Because of this, the Court stated, juvenile offenders are less likely to be “irretrievably depraved” than adults. With that in mind, the Court examined the prospect of life without parole for juveniles convicted of non-homicide offenses in the context of the Eighth Amendment.

The Court noted that life without parole is only second to the death penalty in its harshness and ability to deprive convicted persons of hope. Life without parole is, therefore, an ultimate judgment of the irrevocable nature of an offender’s character. Given those points, the Court held that life sentences for juveniles convicted of non-homicide offenses must meet three requirements.

First, the sentence must provide an opportunity to obtain release based on “demonstrated maturity and rehabilitation.” Second, this opportunity must be meaningful and realistic. Third, the state’s parole and release programs at large must account for the lesser culpability of juveniles.

The Geriatric Release Program Does Not Satisfy the Graham Requirements

The Fourth Circuit held that the Virginia Geriatric Release program does not meet any of the three requirements set out in the Graham decision, thus overturning Angel and affirming the district court’s holding.

First, the Geriatric Release program does not require the Parole Board to consider any factors relevant to the juvenile’s maturity or rehabilitation. Additionally, because of the two-stage review process, a petition can be denied at the first stage – before the presentation of oral and written arguments. Also, over 95% of the denials of Geriatric Release petitions were based on the nature of the underlying crimes, which, again, precludes consideration of maturity and rehabilitation. Therefore, the program does not meet the first requirement of Graham.

Second, the circuit court held the extended duration of time compared to parole, coupled with the lack of consideration for juvenile-specific factors, rendered the opportunity provided under the Geriatric Release program neither meaningful nor realistic for juvenile offenders facing life sentences. Therefore, the program does not meet the second requirement of Graham.

Finally, the Geriatric Release program fundamentally contravenes the concerns underlying the Court’s third requirement in Graham. Unlike the abolished parole program, which counted time served regardless of age, the Geriatric Release program requires juveniles serving life sentences to spend a longer percentage of their life incarcerated than an adult serving the same sentence. Essentially, the program ensures that juveniles, though deemed to be less culpable by the Supreme Court, will bear a harsher punishment than adults.

Disposition

The Fourth Circuit affirmed the district court’s order remanding the Petitioner’s case for resentencing. The Virginia Geriatric Release program permits the denial of offender’s petitions without requiring consideration of demonstrated maturity or rehabilitation. The program, in execution, results in more comparably harsh sentences for juvenile offenders than adult offenders. Therefore, the Geriatric Release program does not meet the requirements of the incorporated Eighth Amendment as enumerated in Graham.

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7Nov

Fourth Circuit Deems Deprivation of Prisoner’s Medical Care Unconstitutional

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By Kelsey Mellan

On November 4, 2016, the Fourth Circuit issued a published opinion in Scinto v. Stansberry, a civil case involving a prisoner who was allegedly denied medical attention while in a North Carolina prison (“Prison”). Plaintiff Paul Scinto, Sr. suffers from diabetes and claims that while he was incarcerated, he was denied medical care that resulted in permanent injury. Plaintiff alleged this denial of medical care violated his Eighth Amendment right, which prohibits the infliction of “cruel and unusual punishment.” The current issue before the Fourth Circuit is whether the district court erred in dismissing Plaintiff’s constitutional claims against Dr. Derick Phillip, Administrator Susan McClintock, and Warden Patricia Stansberry for denying him medical care while under their supervision at the Prison. In response, Dr. Phillip and Administrator McClintock claimed that because of qualified immunity, they were shielded from civil liability. The Fourth Circuit affirmed the district court’s decision regarding Warden Stansberry and vacated its decision in terms of Dr. Phillip and Administrator McClintock as the court determined their actions violated Plaintiff’s Eighth Amendment rights. Furthermore, the Fourth Circuit rejected the Defendants’ invocations of qualified immunity.

Facts & Procedural History

Plaintiff entered custody at the Prison in June 2005 after serving multiple years at different federal prisons. While incarcerated, Plaintiff suffered from numerous medical conditions, including high blood pressure, hepatitis C, and insulin-dependent diabetes. There were multiple incidents that occurred at the Prison giving rise to these claims. When Plaintiff first arrived at the Prison in June 2005, Dr. Phillip, his primary prison doctor, prescribed him daily insulin injections to control his diabetes. On June 14, 2005, Plaintiff alleged that he requested an insulin injection from Dr. Phillip because his blood sugar was abnormally high. Plaintiff then claimed Dr. Phillip denied him an insulin injection, opting to create a diet plan for Plaintiff instead. According to evidence presented by Plaintiff, Dr. Phillip never followed through on this meal plan Dr. Phillip claimed the only reason he did not give insulin to Plaintiff on June 14 was because of his “angry” attitude and threatening behavior. Dr. Phillip routinely failed to provide insulin to Plaintiff. Plaintiff alleged that inadequate treatment of his diabetes resulted in damage to his nervous system, kidneys, and eyesight.

An additional incident took place on August 24, 2005 when Plaintiff suffered from a medical emergency causing him to experience extreme stomach pain, vomit blood, and become incontinent. Plaintiff claims that despite his multiple attempts to render assistance from Dr. Phillip and Administrator McClintock, he was not provided proper medical attention until two days later, at which time he was diagnosed with gallstones. Both Dr. Phillip and Administrator McClintock interacted with Plaintiff during this medical emergency and took no action to provide medical care for him.

Finally, Plaintiff alleged he was denied a proper diabetic diet during his stay at the Prison. He claimed that every meal served at the Prison was high in sugar and was accompanied by a sugary drink. When he expressed these concerns to both Warden Stansberry and his congressman who forward the concerns to the Warden, Plaintiff stated he was told that inmates were educated about how to select foods appropriate for their medical conditions. Because of the lack of diabetes-friendly food, Plaintiff claimed he suffered from high blood sugar levels, the treatment of which caused him to experience loss of diabetic control and severe destructive episodes of diabetic hypoglycemia and hyperglycemia.

Plaintiff originally brought multiple constitutional claims against numerous Prison officials in the District Court for the District of Columbia. The D.C. District Court dismissed most of these claims against officials and transferred the remaining claims to the District Court for the Eastern District of North Carolina. Cross-motions for summary judgment followed and the district court denied Plaintiff’s motion for summary judgment and granted summary judgment to the defendants on each of Plaintiff’s claims. This appeal only concerns three claims dismissed on summary judgment, each arising under the Eighth Amendment against Dr. Phillip, Administrator McClintock, and Warden Stansberry. Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate, “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Eighth Amendment and Denial of Medical Care

The Eighth Amendment prohibits the infliction of “cruel and unusual punishment.” In Helling v. McKinney, the Supreme Court determined that this amendment pertains to not only physically cruel punishment, but that it also includes “the treatment a prisoner receives in prison and the conditions under which he is confined.” The Supreme Court further defined this right in Farmer v. Brennan, in which the court established that prison officials are required to provide humane conditions of confinement and that inmates receive adequate food, clothing, shelter, and medical care.

To succeed on this constitutional claim pertaining to denial of medical treatment, a plaintiff must demonstrate a prison official’s “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” In Farmer, the Supreme Court crafted a 2-pronged test that plaintiffs must fulfill to prove an Eighth Amendment violation. First, plaintiffs must demonstrate that the alleged deprivation was, objectively, “sufficiently serious.” In order to be considered sufficiently serious, the medical need being deprived should be either diagnosed by a physician or so obvious that even a layperson would realize medical attention is necessary. Second, plaintiffs must show that, subjectively, prison officials acted with a “sufficiently culpable state of mind,” in that the official knew of and disregarded an excessive risk to the inmate’s health. This prong requires proof of the official’s actual knowledge of both the inmate’s serious medical condition and excessive risk posed by the official’s action or inaction.

Plaintiff’s Eighth Amendment Claims against Defendants

Plaintiff claims that Dr. Phillip violated his Eighth Amendment right when he refused to give Plaintiff insulin to combat his high blood sugar. The Fourth Circuit determined that Plaintiff demonstrated a genuine dispute of material fact as to both Farmer’s objective and subjective prongs. First, Plaintiff sufficiently proved he suffered from a serious medical condition, insulin-dependent diabetes. The issue of fact concerns whether the serious medical condition of diabetes actually led to the more serious kidney and eyesight problems. Moreover, Dr. Phillip actually treated Plaintiff for his diabetes and it is obvious to even a layperson that insulin-dependent diabetics require insulin injections. In terms of the second subjective prong, Plaintiff adequately demonstrated that not only did Dr. Phillip know about his medical condition, but that the doctor was fully aware of the potential ramifications of mistreatment of the disease. The Fourth Circuit decided that the combination of these facts was enough for Plaintiff’s claim against Dr. Phillip to survive summary judgment.

In terms of Plaintiff’s August 24 medical emergency, he again established genuine issues of material fact as to both Farmer prongs. In terms of the objective prong, Plaintiff’s evidence establishes that there is genuine dispute as to whether as to whether the denial of medical attention during this emergency resulted in serious injury or a substantial risk of serious injury. Subjectively, Plaintiff proved that it was likely both Dr. Phillip and Administrator McClintock were aware of his need for medical assistance. Their failure to take action could give rise to an inference of deliberate indifference, and therefore should survive summary judgment and be presented to a jury.

Despite the aforementioned actions by prison officials, the Fourth Circuit decided the district court correctly determined that Warden Stansberry did not violate Plaintiff’s Eighth Amendment rights. Objectively, Plaintiff failed to raise a genuine dispute of material fact regarding whether, in this case, the lack of a diabetic diet was a sufficiently serious deprivation to be actionable under the Eighth Amendment. Subjectively, the Warden provided adequate evidence to prove that on at least two occasions, inmates were educated on how to choose foods appropriate for their medical conditions. Moreover, several sister circuits have decided that as long as a prison provides some foods that are appropriate for different medical conditions, they have fulfilled their constitutional duties under the Eighth Amendment. Likewise, courts have found that inmates who are denied special diets suffer no constitutional harm so long as they are instead given instruction on how to eat the available meals in a way that satisfies their medical needs. Therefore, the district court was correct in awarding Warden Stansberry summary judgment.

Also, the Fourth Circuit determined that Defendants in this case were not protected by qualified immunity, which shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. This is because there is sufficient evidence that Plaintiff’s Eighth Amendment right to adequate medical care and freedom from officials’ deliberate indifference to his medical needs was violated. This right was clearly established, so Dr. Phillip and Administrator McClintock are not entitled to qualified immunity.

Disposition

Therefore, the Fourth Circuit affirmed the district court’s grant of summary judgment in favor of Warden Stansberry and reversed the grant of summary judgment to both Dr. Phillip and Administrator McClintock.

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23Oct

Fourth Circuit Affirms Conviction in Unlawful Receipt of Government Benefits Case

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By: Kristina Wilson

On Friday, October 21, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Wharton. The Fourth Circuit affirmed the District Court’s conviction of the defendant for conspiracy, making a false statement, theft, and embezzlement, all in connection with her unlawful receipt of government benefits. On appeal, the defendant argued that the affidavit upon which the search warrant was based was materially false and thus violated her Fourth Amendment rights. The Fourth Circuit affirmed the District Court’s decision that there was no Fourth Amendment violation because the affidavit’s omitted facts were not material.

Facts and Procedural History

After the death of the defendant’s daughter in 2002, the defendant took her two granddaughters into her home. She began receiving Social Security survivors’ benefits on her granddaughters’ behalf. In 2012, the Government discovered that the defendant’s granddaughters had not lived with the defendant since 2009 and were not receiving their benefits. The Government then launched an investigation into the defendant’s use of the Social Security funds.

Following the investigation, a grand jury indicted the defendant on two counts of theft of government property in violation of 18 USC § 641 and 42 USC § 1381a(a)(3) on January 31, 2013. The grand jury issued a sealed superseding indictment on June 26, 2013, which was unsealed on July 10, 2013. The indictment charged both the defendant and her husband with conspiracy to embezzle, embezzlement, and making false statements. While the indictment remained sealed, on July 1, 2013, a special agent from the Social Security Administrator’s office executed an affidavit in which he asserted that the defendant and her husband lived together in the defendant’s home. The magistrate issued a search warrant based on the agent’s affidavit, and the Social Security Administrator’s office searched the defendant’s home, discovering a number of documents relevant to the criminal charges.

Prior to trial, the defendant moved to suppress all evidence uncovered in the search of her home. The District Court denied her motion to suppress for all evidence except that which was obtained from her second-floor bedroom. Ultimately, the District Court convicted the defendant and her husband for conspiracy to embezzle money in violation of 18 U.S.C. § 371, making false statements in violation of 42 U.S.C. § 1383a(a)(2), and embezzlement in violation of 18 USC § 641.

The Information Was Recklessly Omitted but Not Material

The defendant asserted that special agent’s affidavit was materially false in violation of the Fourth Amendment because it omitted the fact that she and her husband did not live together.

In the affidavit, the special agent asserted that the defendant and her husband lived together on the basis of interviews he conducted with the defendant, her husband, and their children. Both the defendant and her husband stated that they had been married continuously for 43 years and lived together in the defendant’s home. The special agent also discovered that the defendant’s husband’s electricity account provided power to the entire home, not just his basement living space. Additionally, the special agent discovered that Dish Network provided cable television to the entire home with the defendant and her husband both listed as authorized users.

The District Court held that the defendant and her husband did live separately in that the defendant’s husband only occupied the common areas of the home upon invitation and kept the door to his basement living area locked. However, the omission was not material and did not violate the Fourth Amendment.

The Omission Did Not Violate the Fourth Amendment

On appeal, the Fourth Circuit applied a de novo standard of review to the denial of the defendant’s motion to suppress.

According to the Fourth Circuit, the District Court properly addressed the defendant’s claim as a Franks v. Delaware question. Franks v. Delaware, 438 U.S. 154 (1978). Although a Franks analysis usually begins with the threshold question of whether a district court improperly denied an evidentiary hearing, the Fourth Circuit eschewed that preliminary question because the District Court granted the defendant an evidentiary hearing before denying the motion to suppress.

When a defendant asserts that an affiant has omitted material facts in the affidavit, the defendant must prove that the affiant intentionally or recklessly made a materially false statement or omitted material information.

While Franks requires proof of both intentionality and materiality, only materiality was at issue on appeal. An omission is material if it is necessary to the magistrate’s finding of probable cause to support the warrant. When evaluating materiality, a court inserts the omitted facts and then determines whether the corrected affidavit supports probable cause. If it does, there is no Franks violation.

In recent cases United States v. Lull, 824 F.3d 109 (4th Cir. 2016) and United States v. Tate, 524 F.3d 449 (4th Cir. 2008), the Fourth Circuit reversed the defendants’ convictions after concluding that the omitted information in question undermined the entire foundation of the affidavits. In Lull, an officer omitted facts that undermined the reliability of a confidential informant who supplied many of the facts in the affidavit. In Tate, an officer omitted the fact that much of the evidence supporting his affidavit originated from a questionable search of the defendant’s trash. The Fourth Circuit reasoned that if the trash search was illegal, that evidence would have to be suppressed. Without the trash search evidence, the officer’s warrant lacked probable cause.

In contrast, the fact that the defendant and her husband did not live together did not change the fair probability that evidence relating to the defendant’s crimes would be discovered in the common areas of the house. The magistrate was reasonable in concluding that the defendant and her husband lived together because they stated that they lived together, and they shared utilities and cable services, creating a reasonable inference that both individuals used those services throughout the home. Finally, the omitted fact did not call into question the inherent reliability or validity of the affidavit supporting the warrant, unlike in Lull and Tate.

Disposition

Therefore, the Fourth Circuit affirmed the District Court’s conviction of the plaintiff on all counts.

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13Mar

North Carolina Free to Reject Specialty Plate Designs it Disagrees With

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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.

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5Mar

Fourth Circuit Mandates Strict Scrutiny for Maryland Gun Control Laws

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By Blake Stafford

On February 4, 2016, the Fourth Circuit issued its published opinion in Kolbe v. Hogan, a civil case challenging the constitutionality of Maryland’s Firearm Safety Act (“FSA”).  The FSA criminalizes the possession, sale, and transport of certain semi-automatic guns and narrows the scope of detachable magazines that may be manufactured or sold.  Using intermediate scrutiny in its evaluation of the FSA, the district court held that the FSA restrictions were valid under the Second Amendment.  In a 2–1 decision, the Fourth Circuit vacated the judgment and remanded the case back to the district court, holding that strict scrutiny is the appropriate standard for the Second Amendment challenges.

Facts & Procedural History

In April 2013, Maryland passed the FSA, which bans certain firearms effective October 1, 2013.  The first challenged provision criminalizes the possession, sale, purchase, transfer, or transport of any firearm designated as an “assault weapon,” including the popular AR-15 and AK-47 semi-automatic rifles.  Md. Code, Crim. Law § 4–303(a).  The second challenged provision criminalizes the manufacture, sale, purchase, or transfer of detachable magazines with a capacity of more than ten rounds of ammunition for a firearm.  Md. Code, Crim. Law § 4–305(b).  The FSA contains a grandfather clause allowing those in lawful possession of prohibited firearms or magazines prior to October 1, 2013, to continue such possession.  Md. Code, Crim. Law § 4–303(b)(3)(i).  The FSA also contains exceptions for several classes of individuals, including active law enforcement officers, licensed firearms dealers, and retired state or local law enforcement agents who received the prohibited firearm or magazine prior to or upon retirement.  Md. Code, Crim. Law § 4–302(7)(i), (ii).

Just before the FSA bans became effective, the FSA was challenged on several constitutional grounds by two individual residents in Maryland; two businesses that operate in the firearms, hunting, and sport shooting industries; and several trade, hunting and gun-owners’ rights organizations (collectively “Plaintiffs”).  Plaintiffs sought declaratory and injunctive relief, arguing (1) that the firearm and magazine abridged their rights under the Second Amendment; (2) that the exemption for retired law enforcement officers violated the Equal Protection Clause of the Fourteenth Amendment; and (3) that certain provisions were unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment.

The district court granted summary judgment to the State on all three grounds.  First, the district court determined that intermediate scrutiny applied to the Second Amendment claims, and concluded that Maryland’s firearm and magazine bans met the applicable standards and were thus valid under the Second Amendment.  Second, the district court held that retired officers “are differently situated” than ordinary citizens who wish to obtain assault rifles; thus, there is no Equal Protection violation.  Third, the district court concluded that the bans set forth “an identifiable core of prohibited conduct” and were thus not unconstitutionally vague.

Second Amendment

The Fourth Circuit applies a two-part approach to Second Amendment claims.  The first step is to determine whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.  That is, the challenged law must implicate some degree of Second Amendment protection.  If it does not, the challenged law is valid.  If it does, then the second step is to apply the appropriate form of ends-means scrutiny.

Second Amendment Applies.  The first inquiry—whether the Second Amendment is implicated by the law—requires a determination of whether the prohibited firearms are “commonly possessed by law-abiding citizens for lawful purposes.”  First, the Court found that law-abiding citizens commonly possess the prohibited firearms.  Between 1990 and 2012, more than 8 million AR- and AK-platform semi-automatic rifles alone were manufactured in or imported into the United States.  Likewise, the Court found that the prohibited magazines are commonly kept by American citizens, as there are more than 75 million such magazines in circulation in the United States.  Second, the Court found that the common possession by law-abiding citizens was for a lawful purpose.  The record evidence showed that self-defense was a primary reason for the purchase of weapons banned under the FSA and that self-defense was a suitable purpose for semi-automatic rifles.  Moreover, the Court found nothing in the record demonstrating that law-abiding citizens have been historically prohibited from possessing the prohibited firearms and magazines.  Thus, the Court held that the prohibited weapons are commonly used for lawful purposes as required for Second Amendment protection.

Strict Scrutiny Applies.  Next, the Court determined the appropriate level of scrutiny by considering “the nature of the conduct being regulated and the degree to which the challenged law burdens the right.”  First, the Court found that the challenged provisions of the FSA implicate the core of the Second Amendment: the right of law-abiding, responsible citizens to use arms in defense of hearth and home.  Second, the Court found that the challenged provisions substantially burden this right by imposing a complete ban on the possession of these weapons.  The Court noted that the availability of other, legal weapons did not mitigate this finding.  Thus, the Court held that strict scrutiny is the appropriate level of scrutiny to apply to the bans of semi-automatic rifles and magazines holding more than 10 rounds.

Equal Protection Clause

A different majority of the 3-judge panel held that retired police officers are not similarly situated with the public at large for purposes of the FSA; thus, granting those officers certain rights under the FSA does not violate the Equal Protection Clause.  To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated.  In this case, the Court provided a number of dissimilarities between retired police officers and the public at large.  First, retired police officers possess a unique combination of training and experience related to firearms.  Second, because they are granted a special degree of trust, police officers are instilled with an unusual ethos of public service.  Third, retired police officers face special threats that private citizens do not, with the most obvious being criminals whom they have arrested.  Fourth, retired police officers would also be more likely use their firearms in ways consistent with the public’s interests, not simply private ones.  Thus, the Court held that retired police officers and the public are not similarly situated, and dissimilar treatment of these dissimilar groups does not violate the Equal Protection Clause.

Vagueness: Due Process Clause

The final challenge by Plaintiffs was a vagueness claim under the Due Process Clause of the Fourteenth Amendment.  The FSA prohibits possession of “assault long guns,” which are defined by reference to the list of specific “assault weapons or their copies.”  The statute does not define the term “copies,” and there is no state regulatory definition.  The Court found that the plain meaning of the word—“something that is or looks exactly or almost exactly like something else: a version of something that is identical or almost identical to the original”—is not beyond the grasp of an ordinary citizen.  A statute need only have a “legitimate sweep,” that identifies a “core” of prohibited conduct to avoid unconstitutional vagueness, and the Court held that the challenged provisions sufficiently demarcated a core of prohibited conduct to survive vagueness review.

Disposition

In sum, the Fourth Circuit (1) vacated the district court’s summary judgment order on Plaintiffs’ Second Amendment claims and remands for the district court to apply strict scrutiny; (2) affirmed the district court’s order on Plaintiffs’ Equal Protection claim with respect to the FSA’s exception permitting retired law enforcement officers to possess semi-automatic rifles; and (3) affirmed the district court’s conclusion that the FSA is not unconstitutionally vague.

Dissents

Two dissents were written, the first regarding the Second Amendment claim and the second regarding the Equal Protection claim.  For the Second Amendment claim, the dissent would hold that the FSA is subject to nothing more than intermediate scrutiny.  The dissent noted that no precedent of the Supreme Court or the Fourth Circuit compelled strict scrutiny, and found that intermediate scrutiny was appropriate in light of decisions of other courts of appeals.  For the Equal Protection claim, the dissent would remand for further analysis under rational basis review rather than solely focusing on whether the officers and the public are similarly situated.

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29Sep

Claim Alleging Unconstitutional Redistricting for Wake County School Board Elections was Improperly Dismissed

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By Elizabeth DeFrance

On May 27, 2015, the Fourth Circuit issued a published opinion in the civil case Wright v. North Carolina. The Court considered whether the District Court for the Eastern District of North Carolina erred in ruling Senate President Pro Tem Philip Berger and General Assembly Speaker Thom Tillis could not be properly enjoined to a suit claiming the redrawing of Wake County Board of Education electoral districts violated the “one person, one vote” guarantees of the Fourteenth Amendment and the North Carolina Constitution. The Court also considered whether the district court erred in granting the defendants’ Federal Rules of Civil Procedure 12(b)(6) motion to dismiss when the plaintiffs’ complaint alleged “facts sounding in arbitrariness” without explicitly stating the element.

After Elections Resulted in a Democratic Majority on the Board of Education, the Republican-led General Assembly Passed a Bill to Redraw Electoral Districts

The Wake County Board of Education redrew electoral districts after the 2010 census, as required by the General Assembly. The resulting districts were geographically compact and had a maximum population deviation of 1.66%. The first election under the new plan resulted in a Democratic majority on the Board of Education. In spite of objections from the majority of the School Board, the Republican-led General Assembly passed Session Law 2013-110 (“Session Law”), redrawing the electoral districts. The changes resulted in seven less geographically compact districts and two “super districts.” One super district is an outer ring of rural areas and the other a central urban area. The maximum population deviation between the super districts is 9.8%. The Session Law also prohibits the Board of Education from making any changes to its election procedures until 2021.

Calla Wright along with twelve other individual Wake County citizens and two citizen associations brought a claim against the State of North Carolina and the Wake County Board of Elections alleging the redistricting violates the Fourteenth Amendment of the United States Constitution and the Equal Protection Clause of the North Carolina Constitution because the votes of Plaintiffs living in overpopulated districts weigh less than the votes of people living in underpopulated districts.

Defendants filed a 12(b)(6) motion to dismiss. Plaintiffs moved to amend to substitute Governor Pat McCrory, Senate President Pro Tem Philip Berger, and General Assembly Speaker Thom Tillis for the State of North Carolina. The district court granted Defendants’ motion to dismiss and denied Plaintiffs’ motion to amend.

State Officials May be Enjoined for the Use of State Power in Violation of the Constitution Only if they Have a Connection with Enforcement of the Act

The Court noted that although the Eleventh Amendment provides some immunity for state officials from private suits brought in federal court, an official may properly be enjoined if he has “some connection with the enforcement of an unconstitutional act.” The North Carolina Constitution does not provide the General Assembly with power to enforce laws, and both Berger and Tillis are members of the General Assembly. Thus, because neither Proposed Defendant has authority to enforce the redistricting plan, the Court held that they could not be properly enjoined and Plaintiffs’ motion to amend was properly denied. The Plaintiffs, in their reply brief to the Court, had conceded that McCrory was not a proper defendant.

To Survive Summary Judgment Where the Population Deviation is Below 10%, a Plaintiff Must Produce Evidence that the Apportionment was Arbitrary or Discriminatory

On the issue of whether summary judgment was properly granted for the defendants, the Court looked to the “one person, one vote” principle inherent in the Equal Protection Clause. When constructing districts, governments must “make an honest and good faith effort” to make the population in each as close to equal as is practicable. When a plaintiff brings a claim related to a redistricting plan with a population deviation below 10%, he has the burden to provide additional evidence showing the redistricting process had a “taint of arbitrariness or discrimination.”

Plaintiffs’ Factual Allegations “Sounding in Arbitrariness” Were Sufficient to Provide Defendants Fair Notice of Their Claims

The Court noted that Plaintiffs’ complaint alleged the redistricting discriminated between urban and rule voters because the rural districts were “unjustifiably underpopulated” and the urban districts were “overpopulated without justification.” The Plaintiffs also pointed out that the Board of Education was opposed to the Session Law, and that no African-American or Democratic members of the General Assembly voted for it. The Court reasoned that this suggested the law was “neither racially or otherwise neutral.”

The Court reasoned that although Plaintiffs did not expressly plead that the Session Law was arbitrary or discriminatory, their factual allegations sounded in arbitrariness and provided defendants fair notice of their claims.

The Court also rejected the district court’s justification for dismissal based on its view that plaintiffs had a political gerrymandering claim rather than a “one person, one vote” claim. The Court concluded that Plaintiffs clearly pled an equal protection claim.

Plaintiffs’ Federal Constitution and North Carolina Constitution Equal Protection Claims Were Improperly Dismissed

The Court held that because Plaintiffs’ complaint clearly pled facts supporting arbitrariness and discrimination, their Federal Constitution equal protection claim was improperly dismissed under 12(b)(6). For the same reasons, Plaintiffs’ North Carolina equal protection claim was also improperly dismissed. Additionally, because the Proposed Defendants did not have authority to enforce the Session Law, they could not be enjoined and Plaintiffs’ request to amend was properly denied. Accordingly, the case was affirmed in part, reversed in part, and remanded.

Circuit Judge Diana Gribbon Motz dissented. She reasoned that the Plaintiffs’ pleadings did not overcome the presumption of constitutionality for a redistricting plan with a maximum population deviation under 10% because the complaint did not use the words “arbitrariness” or “invidious discrimination” and failed to allege facts supporting such claims.

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9Jul

Fourth Circuit Reverses District Court’s Dismissal of Free Exercise Claims

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By Cate Berenato

Da Bishop

On July 9, 2015, in the civil, published case Jehovah v. Clarke, the Fourth Circuit reversed the Eastern District of Virginia’s dismissal of inmate Jesus Emmanuel Jehovah’s free exercise and deliberate indifference claims against the Virginia Department of Corrections (“VDOC”).

First Amendment, RLUIPA, and Eighth Amendment Claims 

The issue in this case was whether VDOC violated the First Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) when it a) prohibited Mr. Jehovah from drinking wine during communion; b) required him to work on Sabbath days; and c) assigned him non-Christian cellmates. An additional issue is whether, under the Eighth Amendment, VDOC was deliberately indifferent to Mr. Jehovah’s medical needs.

Mr. Jehovah’s Experience with VDOC

Mr. Jehovah’s religion required him to take communion by drinking wine and consuming bread dipped in honey, olive oil, sugar, cinnamon, and water. While at Nottoway Correction Center (“NCC”), Mr. Jehovah was not allowed to take communion. When he was transferred to Sussex I Prison (“SIP”), Mr. Jehovah filed grievances, which went unanswered, and VDOC issued a policy prohibiting wine consumption during communion.

Mr. Jehovah’s religion also did not allow him to work from Friday at sundown until Sunday at sundown, but VDOC required inmates to work a certain number of hours per week to attain good conduct allowances and sentence credits. VDOC refused to accommodate Mr. Jehovah after he was assigned to work seven days a week. VDOC also did not approve Mr. Jehovah for jobs that would accommodate his beliefs, despite previously approving him for such jobs.

Additionally, though Mr. Jehovah’s religion did not allow him to be housed with non-Christians, several of his cellmates were not Christian and VDOC did not respond to his requests to be reassigned. Finally, Mr. Jehovah displayed various symptoms of medical illnesses, but doctors associated with VDOC failed to provide care for many of the symptoms and improperly treated others.

Procedural Posture

The District Court dismissed Mr. Jehovah’s Sabbath, cell assignment, and deliberate indifference claims. It granted summary judgment in favor of VDOC on Mr. Jehovah’s communion claims.

The District Court Should Not Have Dismissed Mr. Jehovah’s Claims or Granted Summary Judgment in Favor of VDOC

The Fourth Circuit reviewed the district court’s dismissals and grant of summary judgment de novo. Dismissal is proper only if Mr. Jehovah did not allege facts that state a claim for which relief can be granted. In assessing the grant of summary judgment, the Fourth Circuit looked at the facts and inferences in the light most favorable to Mr. Jehovah. Summary judgment is only proper if a reasonable jury could not have returned a verdict in Mr. Jehovah’s favor.

The First Amendment protects the free exercise of religion. If a prison regulation impinges an inmate’s First Amendment right, the regulation is valid if it is reasonably related to a legitimate interest of the prison. The Fourth Circuit considered a four-pronged test to determine the validity of the prison policies: a) “is there a valid, rational connection between the prison regulation and the legitimate government interest put forward to justify it?”; b) “are there alternative means of exercising the right that remain open to prison inmates?”; c) “what is the impact accommodation of the asserted constitutional right will have” on the prison?; d) Do there exist obvious, easy alternatives, to suggesting that the regulation is an exaggerated response to prison concerns?” The prisoner must prove the regulations invalid.

RLUIPA “prohibits any government entity from imposing a substantial burden on an inmate’s religious exercise unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.” While an inmate proves a substantial burden on religious exercise, the government must “establish that the burden is the least restrictive way to further a compelling governmental interest.”

The district court’s grant of summary judgment regarding the wine ban was improper because Mr. Jehovah did not have an opportunity to brief whether the wine ban substantially burdened his exercise of religion. Additionally, the wine ban was not the least restrictive means to address the government’s interest in security. The Fourth Circuit found that an interest in restricting inmate wine consumption was valid, but the wine consumption ban could have provided alternatives like dipping bread into wine during communion. The Fourth Circuit stated that the prison population would not have been endangered by one inmate consuming a small amount of wine, and VDOC did not offer any alternatives or accommodations for Mr. Jehovah. Thus, the Fourth Circuit reversed the district court’s grant of summary judgment.

The district court’s dismissal of Mr. Jehovah’s Sabbath claims was improper. VDOC’s refusal accommodate Mr. Jehovah’s Sabbath observances by allowing him to transfer jobs may have violated RLUIPA because it burdened his ability to freely exercise his religion. VDOC may have violated the First Amendment because its refusal to accommodate was not rationally related to any prison interest that the court could discern.

Mr. Jehovah’s religious practices were chilled Under RLUIPA when VDOC placed him with a cellmate who subjected him to “anti-Christian” rhetoric. VDOC’s refusal to assign Mr. Jehovah to a different cellmate was again not related to a legitimate interest of the prison’s that the Fourth Circuit could detect. In fact, the placements with non-Christians may have been deliberate on the part of VDOC.

Finally, the District Court should not have dismissed Mr. Jehovah’s deliberate indifference claims under the Eighth Amendment. To establish deliberate indifference, an inmate must prove: a) an objectively serious deprivation of a basic human need, and b) a subjectively culpable state of mind on behalf of the officials. Here, VDOC did not claim that Mr. Jehovah’s alleged symptoms were not serious health issues. Additionally, Mr. Jehovah’s doctors only treated some of his ailments, often improperly, and ignored others. Thus, the district court should not have dismissed Mr. Jehovah’s Eighth Amendment claim.

Disposition

The Fourth Circuit reversed the district court’s dismissals of Mr. Jehovah’s claims and reversed its grant of summary judgment in favor of VDOC.

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20Mar

No Qualified Immunity for Officers in Their Use of Excessive Force

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By Joshua P. Bussen

On March 18, 2015, in a published opinion of the civil case Smith v. Ray, the Fourth Circuit affirmed the district court’s denial of summary judgement to two police officers who were accused of using of excessive force.  The circuit court found no error in the Eastern District of Virginia’s decision to deny the police officers qualified immunity.

The Use of Excessive Force

On September 21, 2006, a uniformed Virginia police officer was looking for a missing juvenile.  The officer heard that the juvenile might be at a house in Virginia Beach, VA.  When the officer arrived at the house and knocked on the door, the plaintiff Amanda Smith answered.  The officer and Amanda spoke for a little while before she turned to go back inside.  As she opened the door the officer slammed it shut and grabbed Amanda by her arm.  The officer then slammed her to the ground and pressed his knee into her back—resting his full weight on her.  The officer also punched her several times in the ribs and yanked on her ponytail.  Throughout the entire incident, Amanda never resisted.  She did, however, receive multiple visible bruises, a broken rib, shoulder pains, as well as other emotional injuries.

Assault, Battery, and Qualified Immunity

Amanda, the plaintiff, sued the officers for state law assault and battery.  The officers asserted that they were immune from the suit under the qualified immunity doctrine.  Qualified immunity bars suits against officers unless (1) the facts, taken in the light most favorable to the plaintiff, show that the officer violated a federal right, and (2) the right was clearly established at the time the violation occurred, such that a reasonable person would have known his conduct was unconstitutional.

Was the Force Required?

The Fourth Circuit stated that “when a plaintiff has alleged that an officer employed excessive force in making an arrest, the federal right is the Fourth Amendment right against unreasonable seizures.” In determining if the right was “clearly established,” it articulated that evaluating the reasonableness of an officer’s actions under Fourth Circuit precedent requires a balancing of the individual’s rights against the countervailing governmental interest—a “totality of the circumstances” evaluation.  In this case, the Fourth Circuit found that the officer grabbed Amanda with no provocation and threw her to the ground despite the fact that he only, at the most, suspected her of aiding in the delinquency of a minor—a misdemeanor.  The circuit judges also found that nothing in the record suggested that Amanda resisted arrest or presented any threat to the officers.

The District Court’s Decision Is Affirmed

The Fourth Circuit found that the officer had acted in a completely unreasonable manner in his use of force against Amanda Smith on September 21, 2006.  He threw her to the ground with no provocation or present risk of harm, and continued to treat her violently despite her passive reaction.  Therefore, the circuit court held that the district court was correct to deny the officers’ motion for summary judgement under the qualified immunity doctrine.

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2Mar

Child’s Statement Secures Qualified Immunity for Police Officer

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By Marcus Fields

Today, in Pleasants v. Rigsby, an unpublished decision, the Fourth Circuit affirmed the District Court for the Western District of Virginia’s grant of summary judgment in favor or Officer Robert Rigsby and the Town of Louisa on Sloan Pleasants’ claim that Rigsby falsely arrested her.

Officer Rigsby’s Arrest of Sloan Pleasants

On December 13, 2009, at the request of Sloan Pleasants’ ex-husband Kevin, Officer Rigsby went to the house of Sloan Pleasants in order to perform a “welfare check” on Kevin’s eleven-year-old daughter. During the visit the child was visibly frightened and Sloan Pleasants initially refused to let the child speak with either Kevin or Officer Rigsby. Upon questioning, the child told Officer Rigsby that Sloan had slapped her on her thigh and pulled her by her wrists. Officer Rigsby could see no visible marks or bruises. Officer Rigsby then proceeded to arrest Sloan Pleasants for assault and battery against a family member, a charge that was later dropped.

Pleasants’ Claims on Appeal

Pursuant to 42 U.S.C. § 1983, Pleasants originally claimed unlawful entry, false arrest, malicious prosecution, and failure to train on the part of the Town of Louisa, as well as other related state law claims. These claims were dismissed by the district court, and all but one of these dismissals were affirmed by the Fourth Circuit in an earlier appeal. The false arrest claim was remanded to the District Court for further proceedings. After further developing the factual record the District Court granted summary judgment for Officer Rigsby after finding that he was entitled to qualified immunity. Pleasants appealed, claiming the District Court erroneously based this finding on “disputed facts and inferences drawn in favor of Officer Rigsby.”

Officer Rigsby Entitled to Qualified Immunity

The Fourth Circuit, reviewing the district court’s grant of summary judgment de novo, determined that the district court was correct in granting Rigsby qualified immunity. Government officials are protected by the doctrine of qualified immunity “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In order to find that qualified immunity is not present, a court must conclude that “a constitutional violation occurred and … the right violated was clearly established.” Both the district court and the Fourth Circuit focused analysis on the second prong. The Fourth Circuit ultimately concluded that based on the frightened state of the eleven-year-old girl, the girl’s statements to Officer Rigsby, and Sloan Pleasants’ demeanor towards Officer Rigsby, “a reasonable officer could have believed that Officer Rigsby’s arrest of Pleasants was lawful.”

Grant of Summary Judgment Affirmed

For the above reasons, the Fourth Circuit affirmed the grant of summary judgment to Officer Rigsby on the false-arrest claim.

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9Feb

No Due Process Violation in Employment Termination Case

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By Dan Menken

Today, in Skinner v. Loudoun County, an unpublished opinion, the Fourth Circuit affirmed the district court’s order granting summary judgment to Loudon County on Skinner’s 42 U.S.C. § 1983 (2012) complaint. The complaint alleged federal and state due process claims as well as a related state claim of defamation.

Skinner Argues that Due Process Rights were Violated by Job Termination

Skinner’s claims arose from his termination from his position as an emergency medical services training officer with the Loudon County Department of Fire Rescue and Emergency Management. He was terminated for striking a student in the head.

As a public employee, Skinner had a constitutionally protected property interest in his continued employment and could not be fired without due process. Although Skinner did have an opportunity to present his side of the story, he argued that Defendants failed to provide him with the evidence used to support his termination, including names of eyewitnesses, names and details of corroborating witnesses, and corroborating documents. The Fourth Circuit noted, however, that “[d]ue process does not mandate that all evidence on a charge or even the documentary evidence be provided, only that such descriptive explanation be afforded as to permit [the employee] to identify the conduct giving rise to the dismissal and thereby to enable him to make a response.” Linton v. Frederick County. Here, Skinner was informed that he was charged, on a specific date, with harassing, hitting, and kicking the student. He was also told that there was another witness to the altercation. The Fourth Circuit held that Skinner understood the charges sufficiently to prepare a detailed response, and therefore there was no due process violation.

Skinner further argued that he was deprived of his right to confront the student under the Fifth and Fourteenth Amendment. The Court held that there is no absolute due process right to confront and cross-examine an accuser in this type of situation and instead used the balancing test laid out in Mathews v. Eldridge. The test looks at (1) the private interest affected; (2) the risk of an erroneous deprivation and the probable value of additional procedural safeguards; and (3) the Government’s interest. Here, Skinner was informed of the charges against him. He was able to testify on his behalf and call corroborating witnesses. The Court reasoned that the remaining procedural safeguards, the lack of any evidence of prejudice, and the fact that the student was deployed in Afghanistan, warranted a conclusion that Skinner was not unconstitutionally deprived of an opportunity to challenge his termination.

Defamation Claim Not Preserved

Finally, Skinner agued that his defamation claims were improperly dismissed for failure to produce evidence of malice. However, Skinner did not address the defamation claim in his response to the Defendants’ summary judgment motion. He objected, for the first time, in his motion for reconsideration. Thus, his arguments against dismissal were waived.

District Court Ruling Affirmed

Thus, the Fourth Circuit affirmed the district court’s ruling granting summary judgment in favor of the Defendants.

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26Jan

Fourth Amendment Protects Curtilage of Home From Unreasonable Search

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By Dan Menken

Today, in the civil case of Covey v. Assessor of Ohio County, a published opinion, the Fourth Circuit reversed the district court’s dismissal of Christopher and Lela Covey’s suit against government officials for entering the curtilage of their house without a search warrant.

Question of Fourth Amendment Protection From Unreasonable Government Intrusion

The Court was asked to decide whether government officials violated the Coveys’ Fourth Amendment right to protection from unreasonable government intrusion when the government officials entered the curtilage of the Covey’s home in search of marijuana without a warrant.

Government Tax Assessor Relayed Information to Police Regarding Marijuana Plants

On October 21, 2009, a field deputy for the tax assessor of Ohio County, West Virginia, entered the Covey’s property to collect data to assess the value of the property for tax purposes. The tax assessor entered the Covey’s property despite seeing “No Trespassing” signs, which is against West Virginia law. When searching the property, the tax assessor found marijuana in the Covey’s walk-out basement patio. The tax assessor then contacted the police.

When the police arrived, they entered the curtilage of the Covey’s residence and proceeded to the area where the marijuana was located. As they were searching the property they encountered Mr. Covey. The officers detained Mr. Covey and continued their search. The officers then waited several hours to obtain a warrant to search the house. During that time, Mrs. Covey returned home and was warned that she would be arrested if she entered the house, after which she left the premises. Upon returning an hour later, Mrs. Covey was seized and interrogated. After the police received the search warrant, the Coveys were arrested and jailed overnight.

On March 30, 2010, Mr. Covey pleaded guilty in state court to manufacturing marijuana in exchange for the government’s promise that they would not initiate prosecution against Mrs. Covey. He was sentenced to home confinement for a period of not less than one year and not more than five years. On October 20, 2011, the Coveys brought this suit pro se. The claims, brought under 42 U.S.C. § 1983 and Bivens, alleged that several defendants violated the Coveys’ Fourth Amendment rights by conducting an unreasonable search. The district court dismissed the Coveys’ claim concluding that none of the defendants violated the Fourth Amendment. This appeal followed.

Fourth Amendment Protects Curtilage of Home

The Court reviewed the district court’s grant of a motion to dismiss de novo. To prevail on a motion to dismiss, a plaintiff must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal. A claim is plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

According to Oliver v. United States (1984), the Fourth Amendment protects homes and the “land immediately surrounding and associated” with homes, known as curtilage, from unreasonable government intrusions. Probable cause is the appropriate standard for searches of the curtilage and warrantless searches of curtilage is unreasonable.   The knock-and-talk exception to the Fourth Amendment’s warrant requirement allows an officer, without a warrant, to approach a home and knock on the door, just as any ordinary citizen could do. An officer may bypass the front door when circumstances reasonably indicate the officer might find the homeowner elsewhere on the property. The right to knock and talk does not entail a right to conduct a general investigation on a home’s curtilage.

The Complaint Presented Plausible Claims For Violations of the Fourth Amendment

Properly construed in the Coveys’ favor, the complaint alleges that the officers saw Mr. Covey only after they entered the curtilage. Thus, applying the Rule 12(b)(6) standard, the Court found that the Coveys plausibly alleged that the officers violated their Fourth Amendment rights by entering and searching the curtilage of their home without warrant. The district court erred by accepting the officers account of events, in which they stated that they saw Mr. Covey prior to entering the curtilage.

Turning to the tax assessor, the Court believed that his entering of the property, although illegal, was not a per se violation of the Fourth Amendment. In this case, the Court believed that the governmental interest in the search for tax purposes was minimal, while the Covey’s privacy interest is significant. Therefore, the Fourth Circuit held that the Coveys pleaded a plausible claim that the tax assessor conducted an unreasonable search of their home and curtilage.

Defendants’ Affirmative Defenses

According to Ashcroft v. al-Kidd (2011) qualified immunity “shields federal and state officials form money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct. As to the police officers, the Court stated that they should be aware that a warrantless search of the home, absent consent or exigency, is presumptively unconstitutional. Additionally, the Court noted that Fourth Circuit has, for over a decade, recognized that the curtilage of the home is entitled to Fourth Amendment protection. The Court felt that the tax assessor presented a closer case. Because there was no case law that spoke to a similar set of facts, and the tax assessor should have been aware that he was violating a Constitutional right by searching the property, the Court ruled that the tax assessor was not entitled to qualified immunity.

Finally, the defendants claimed that the Coveys’ § 1983 and Bivens claims are barred by Heck v. Humphrey (1994). There are two requirements for Heck to bar the Coveys’ claims. First, “a judgment in favor of the plaintiff [must] necessarily imply the invalidity of [a plaintiff’s] conviction or sentence.” Second, the claim must be brought by a claimant who is either (i) currently in custody or (ii) no longer in custody because the sentence has been served, but nevertheless could have practicably sought habeas relief while in custody. The court concluded that Mr. Covey’s claims did not necessarily imply the invalidity of his conviction and thus are not necessarily barred by Heck. The Court remanded the district court for further analysis under Heck.

Reversed and Remanded

Thus, the Fourth Circuit reversed the district court’s grant of dismissal and remanded the case for further proceedings.

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14Nov

Legality of Strip Searches for Defendants In Holding Cells

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By: Kaitlin Price

In Cantley v. West Virginia Regional Jail and Correctional Facility Authority, the Fourth Circuit affirmed the district court’s ruling granting Defendants summary judgment, but on alternate grounds. Plaintiffs Michael Cantely and Floyd Teter sued the West Virginia Regional Jail and Correctional Facility Authority under 42 U.S.C. § 1983 for damages and equitable relief related to the strip search each Plaintiff endured. The district court granted summary judgment for Defendants’ holding that the strip searches did not violate the Fourth Amendment or any clearly established laws.

The Fourth Circuit affirmed the district court’s grant of Defendants’ summary judgment motion regarding Plaintiff Cantley’s strip search. The court explained that in 2012 the Supreme Court in Florence v. Board of Chosen Freeholders of County of Burlington, held that “every detainee who will be admitted to the general population [of a jail] may be required to undergo a close visual inspection while undressed.” Here, Mr. Cantley had been arraigned before a magistrate who committed him to the general population of Western Regional Jail, thus a strip search was necessary. The officer did not use force or touch Mr. Cantely at all. The Supreme Court’s holding in Florence covers Mr. Cantley’s strip search; therefore, the Fourth Circuit affirmed the district courts grant of summary judgment for the Defendants.

The Fourth Circuit affirmed the district court’s ruling that granted Defendants summary judgment against Plaintiff Teter’s strip search claim, although based on different reasoning. The facts of Plaintiff Teter’s search are distinguishable from those of Plaintiff Cantley because Plaintiff Teter had not appeared before a magistrate and been committed to the general population of the jail, but instead was being held in a holding cell.

Even though the Florence case did not provide a reason for the strip search in Mr. Teter’s case, the Fourth Circuit still held summary judgment was appropriate under the doctrine of qualified immunity. The Court explained that qualified immunity entitles a defendant to summary judgment if there is no constitutional right violations or if the law was not “‘clearly establish’” at the time of defendant’s alleged misconduct.” The Court explained the law was not “clearly established” law regarding Defendants actions. Plaintiff relied on Logan v. Shealy,660 F.2d 1007 (4th Cir. 1981),  to show the law was “clearly established” the law, however the facts in Logan are extremely distinguishable from the facts here. In Logan the plaintiff was strip searched soon before she was set to leave the facility, did not interact with other prisoners, was only at the facility for two hours, and was strip searched in a room with a transparent window. However, here Plaintiff Teter was strip searched prior to being placed in a holding cell where he might interact with other prisoners, spent a total of eleven hours at the facility, and the strip search was conducted in a private room.

Both Plaintiffs also brought claims against Defendants for delousing them. The Fourth Circuit affirmed the district court’s ruling that granted summary judgment for Defendants on these claims, however for different reasoning than the district court. The Court held that the Defendants were entitled to summary judgment against the delousing claim because the law did not clearly establish that the delousing policy was unconstitutional. The Court explained because at the time of the delousing, existing precedent did not clearly indicate the practice was unconstitutional the defendants are entitled to qualified immunity against the claims.

The Court also affirmed the district court’s denial of Plaintiffs’ pray for injunctive and declaratory relief because such relief is premature.

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