Wake Forest Law Review
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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13Nov

Enhanced Child Pornography Sentence Survives Constitutional Challenge

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By Michael Mitchell

Does Increased Sentencing for Crime Against “Vulnerable Victims” Violate the Eighth Amendment’s Prohibition of Cruel and Unusual Punishment?

Today, in United States v. Dowell, the Fourth Circuit considered whether the district court’s increased sentence for the Defendant under the “vulnerable victim” standard was appropriate when an upward adjustment was already made based on his victim’s young age.

Child Pornography Conviction Results in “Upward Adjustment” Sentencing

Defendant John Dowell pled guilty to twelve counts of production of child pornography and one count of transportation of child pornography after he recorded himself in various stages of sexual contact with two girls under five.  Dowell stored more than 70,000 pornographic images and videos on his computer, three-fourths of which involved children, and posted many of them to the Internet through various websites.

After a lengthy sentencing hearing, the district court sentenced Dowell to 960 months in prison.  The court heard expert testimony from a psychologist, who testified that Dowell was a pedophile, “sexually attracted to females, nonexclusive type” (adults and children).  Although the psychologist testified that Dowell is unlikely to be a repeat offender, he acknowledged that pedophilia is a chronic condition “that is unlikely to go away as [he] ages.

Based on Dowell’s Pre-Sentence Report, the district court allowed enhanced sentencing for “engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor” and “engag[ing] in a pattern of activity involving prohibited sexual conduct.”  The court relied on “the well established principle that double counting is authorized” unless specifically prohibited in applying the harsher sentencing.  Dowell has challenged the district court’s use of this “vulnerable victim” enhancement.

Eighth Amendment Challenge over Proportionality of Sentencing

 The court considered the constitutionality of the Defendant’s enhanced sentencing in light of the Eighth Amendment’s prohibition of cruel and unusual punishment.  Specifically, the court reviewed whether the sentencing was proportional under the Eighth Amendment.  Defendants bringing a constitutional claim must assert either an “applied-as” challenge, arguing that the sentence is disproportionate for the particular case, or a “categorical” challenge, asserting that “an entire class of sentences is disproportionate.”  Dowell has only raised an applied-as challenge to his sentence.

Defendant Fails to Substantiate As-Applied Constitutional Challenge

In a published opinion under de novo review, the Fourth Circuit relied on the “narrow proportionality principle,” adopted by the Supreme Court for as-applied challenges to the Eighth Amendment.   Strict proportionality is not required between the crime and the sentence.  Only “grossly disproportionate” sentences are forbidden by the Eighth Amendment, which is evaluated using a two-part test.  First, the court must determine “that a ‘threshold comparison’ of the gravity of the offense and the severity of the sentence “leads to an inference of gross proportionality.”  If this high burden is met, the court will then compare the challenger’s sentence with other offenses in that jurisdiction and sentences of similar offenses in other jurisdictions to establish that it constitutes cruel and unusual punishment.

Recently, the Fourth Circuit rejected a similar Eighth Amendment challenge of a lengthy sentence stemming from a child pornography conviction.  In United States v. Cobler, 748 F.3d 570, the court found that the defendant’s crime was “sufficiently egregious” to justify heightened sentencing based on the large quantity of child pornography and the risk that he posed to his victim.  Here, the court draws parallels to this 2008 case and rejects Dowell’s claims that the crime was nonviolent.  As a result, the court found that the Defendant’s sentence was not cruel and unusual punishment under the Eighth Amendment.

Fourth Circuit Affirms Harsher Sentencing In Spite of Harmless Error

The Fourth Circuit affirmed the Defendant’s 960-month sentence, finding that his sentence was proportional under the Eighth Amendment’s prohibition of cruel and unusual punishment and rejecting his claim that “double counting” is not permitted by the Sentencing Guidelines as a harmless error.

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24Oct

Fourth Circuit Affirms that Subjective Recklessness is Required for an Eighth Amendment Claim

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By: David Darr

Today, in Bradford v. Clem, the Fourth Circuit affirmed the District Court for the District of Maryland’s decision to order summary judgment in favor of the defendants on the plaintiff’s Eighth Amendment claims.

Eighth Amendment Violation?

At issue in this case was whether an Eighth Amendment claim for “unnecessary and wanton infliction of pain” can proceed when a prison doctor does not renew the plaintiff’s pain medication prescriptions for two weeks due to changes in the prison medical staff.

Defendant Not Renewing Prescriptions

The plaintiff, Steven Karl Edward Bradford, suffered from severe damage to his left intraorbital nerve and, as a result, developed severe chronic pain on the left side of his face, migraines, and double vision. This greatly impaired Bradford’s abilities to do normal activities.  In 2010, after some unsuccessful attempts to treat these symptoms, Bradford was put on regimen of Tramadol, Depakote, and Lyrica. This regimen proved to be relatively successful and Bradford was able to engage in regular activities for two years on this regimen. Bradford had to be reevaluated every ninety days for prescription renewals. In 2012, the prison that Bradford was incarcerated in a prison that switched health care providers and, as a result, the doctor who regularly treated Bradford no longer worked at the prison. Bradford was treated by a physician’s assistant the next time he went in for an evaluation. One of the defendants, Physician’s Assistant Oltman, only renewed Bradford’s Lyrica prescription because the other two drugs were narcotics and not in Oltman’s power to renew. As a result, Bradford ran out of Depakote and Tramadol. Over a two week period without the drugs, Bradford wrote the other defendant, Dr. Jason Clem, to renew his other two prescriptions because he was in intense pain. Bradford claimed these letters were ignored. After filing a grievance with the warden, Bradford’s prescriptions were renewed. He was without them for about two weeks.

Bradford brought an action a violation of his Eighth Amendment protection against “unnecessary and wanton infliction of pain” in the District of Maryland. The defendants filed for summary judgment and the District of Maryland granted summary judgment in favor of the defendants in this opinion. Bradford then appealed the decision.

Need Subjective Recklessness for an Eighth Amendment Violation

The District Court, whose reasoning the Fourth Circuit adopted, ruled that there must be some intent or subjective recklessness to inflict pain for an Eighth Amendment violation and that Bradford’s claim showed no such recklessness.

No Eighth Amendment Violation Found by the District Court

The Fourth Circuit used the District Court’s reasoning in affirming this case. An Eight Amendment claim for “unnecessary and wanton infliction of pain” for denial of medical care requires an action or inaction by the defendants that amounts to deliberate indifference to a serious medical need. Objectively, the medical condition must be “serious” and, subjectively, there must be recklessness. Subjective recklessness requires knowledge of the risk and that the conduct is inappropriate in relation to the risk.  The District Court found ample evidence that Bradford’s condition was objectively “serious.” Thus, if Bradford provided evidence of subjective recklessness his claim would prevail. However, the District Court found no evidence of an intent to cause harm to Bradford or that Bradford was intentionally deprived his medicine. The speed of the response to Bradford’s letters was demonstrative of this lack of intent. The District Court also found that the fact that this incident occurred as the prison was changing health care providers showed a potential alternative reason for this error. Because of this lack of evidence of intent, there was no subjective recklessness and therefore not enough to establish an Eighth Amendment claim. While the District Court found that the Bradford’s pain could have easily been avoided, it ultimately grated the defendants’ motion for summary judgment.

Fourth Circuit Finds No Reversible Error

In affirming the case, the Fourth Circuit found that the District Court made no reversible error in its decision.

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24Sep

Exonerated Man’s Suit Can Proceed Against Officers and Department

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By Andrew Kilpinen

In a split decision featuring three separate opinions, the 4th Circuit affirmed in part and vacated in part the district courts dismissal in Owens v. Baltimore City State’s Attorneys.

 Owens Challenges Statute of Limitations, Sovereign Immunity, Qualified Immunity, and Failure to State a Claim

The Court reviewed four issues de novo: (1) Is Owens’s claim time barred, (2) is the Baltimore City State’s Attorney’s office an entity capable of suit, (3) are Officers Pelligrini, Dunnigan, and Landsman protected by qualified immunity, and (4) does Owens’s complaint contain sufficient factual content to survive a motion to dismiss on the claim that the BCPD followed a custom, policy, or practice by which local officials violated Owens’s constitutional rights?

 Owens Was Convicted of Rape and Murder

The present controversy grew out of the investigation, trial, and conviction of James Owens for the rape and murder of Colleen Williar on August 2, 1987. The State’s key witness, James Thompson, changed his testimony five times during the investigation and trial. Central to Owens’s appeal was withholding of the multiple variations of Thompson’s testimony from defense counsel.

The jury convicted Owens of burglary and felony murder. In 2006, DNA evidence showed that Owens’s DNA did not match the blood and semen evidence at the crime scene. On June 4, 2007, Owens was granted a new trial. On October 15, 2008 the State’s Attorney entered a nolle prosequi, dropping the charges against him. Owens was subsequently from prison released after twenty years of incarceration.

 Statute of Limitations Began to Run After the Nolle Prosequi and Owens’s Claim is Therefore Not Time Barred

First, the Court held that Owens’s claim is not time barred because the statute of limitations began to run when the State issued the nolle prosequi, not when the State granted Owens’s a new trial. Since § 1983 does not provide a statute of limitations, the Court must look to the common-law tort most analogous to Owens’s claim. Here, the Court identified malicious prosecution as the common-law tort most analogous to Owens’s §1983 claims. Generally, the statute of limitation clock begins to run as soon as the plaintiff knows or has reason to know of his injury. However, sometimes, as is the case in malicious prosecutions, the common law provides a “distinctive rule” for determining the start date of the limitations period. Thus, the Court held that the statute of limitations began to run on Owens’s claim after the nolle prosequi, not at the start of the new trial.

 Baltimore City State’s Attorney’s Office Is Not an Entity Capable of Being Sued

Second, the Court held that the Baltimore City State’s Attorney’s Office is not an entity capable of being sued because the office does not have a legal identity. To be suable, an office or agency must be granted a legal identity through statutory or constitutional authority. Owens argued that the Maryland General Assembly granted such legal identity when it named Title 15 of the Maryland Code of Criminal Procedure “Office of the State’s Attorney.” The Court rejected this argument stating that the title refers to a position held by an individual and not a suable office.

 Officers Are Not Protected by Qualified Immunity

The Court rejected the officer’s defense of qualified immunity. The Court had little difficulty concluding that Owens’s allegations state a plausible § 1983 claim because the information withheld by the officers would have supported his theory that Thompson committed the rape and murder; commenting that at the very least it would have discredited Thompson’s testimony. The Court cites the fact that the officers were seasoned veterans who called the ASA moments after receiving Thompson’s final story to support the conclusion that they withheld the four previous versions intentionally and maliciously. The Court points to precedent in Barbee, Sutton, and Boone in holding that the officers should have known that not disclosing material exculpatory evidence was a violation of Owens’s constitutional rights in 1988.

 Owens’s Complaint Survived Motion to Dismiss

Finally, the Court held that the factual allegations in Owens’s complaint, including reported and unreported cases of officers withholding information from the period of time before and during his trial, contained sufficient factual content to allege that the BCPD maintained a custom, policy, or practice allowing the withholding of material exculpatory evidence. The Court found the allegations that BCPD officers withheld information on multiple occasions could establish a “persistent and widespread” pattern of practice. The Court held that Owens’s complaint survived the BCPD’s 12(b)(6) motion to dismiss.

 4th Circuit Affirmed in Part and Vacated in Part

Owens will have yet another day in court to prove his § 1983 claims against the BCPD, and the individual officers, but not the State Attorney’s Office. The case was remanded to the district court for further proceedings.

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7Mar

Professor Curtis’s Thoughts on Religious Exemptions to Sexual Orientation Anti-discrimination Laws

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By Matthew Meyers

As many readers know, Arizona came close to enacting a bill that would permit business owners to refuse service to gay and lesbian consumers, so long as that refusal arises from their religious beliefs.  The Arizona Legislature passed the bill, but Governor Jan Brewer vetoed it.  The conflict surrounding whether Governor Brewer should veto the bill illustrated the contentious divide between people on both sides of the debate.  It was not only a political debate; people disputed the scope, language, and meaning of the bill (text of the bill here).

Constitutional law professor Michael Curtis considered these issues in advance of the Arizona bill, in an article published in Volume 47 of the Wake Forest Law Review.  Analogizing discrimination based on sexual orientation with racial and gender discrimination, Professor Curtis makes the case that broad exemptions based on religious beliefs would be problematic.  He writes:

This will reinforce the caste system, encouraging self-deception and dissemblance by gays and making it more dangerous and painful for gays to come out. Our common basic interest in truth and honesty support dismantling this caste system.

I encourage readers to check his article out (PDF is here), since this debate over a religious exemption is sure to continue in the coming months and years.

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