Highlights of FBA’s “Highlights of the Supreme Court’s 2013-2014 Term”
On July 17, the Federal Bar Association hosted its second-annual panel discussion of the highlights of the Supreme Court’s most recent term. Held at the U.S. Courthouse in Baltimore, presenters included the Hon. Benson Everett Legg (Ret.), former judge of the U.S. District Court for the District of Maryland; the Hon. Joseph F. Murphy Jr. (Ret.), former judge of the Court of Appeals of Maryland; Suget Raman, the current appellate chief of the U.S. Attorney General’s Office for the District of Maryland; and Jonathan Biran, a previous appellate chief of that Office and, more notably, current contributor to this blog. (Potential bias alert: Judge Legg is this author’s former employer, and Judge Murphy and the author are currently members of the same firm.) A recap of the event, along with these distinguished commentators’ takes on the cases that most caught their attention, appears below (after the jump).
The panel began with a slate of criminal cases, with Judge Legg addressing Abramski v. United States, the latest major gun decision to come down from the Court. In that case, Bruce Abramski, as a former police officer, got a discount from the seller that he used to purchase a 9mm Glock handgun for his uncle, who was not otherwise legally prevented from buying a gun in any way. In doing so, Abramski indicated on a form from the Bureau of Alcohol, Tobacco, and Firearms that he was not obtaining the weapon on behalf of another person. After he was later arrested on suspicion of bank robbery, a search of his home revealed that his uncle had given him $400 to buy the gun, and he was charged with violating 18 U.S.C. § 922(a)(6) by failing to disclose this “material fact” on the form and for failing to disclose information that the federally licensed firearms dealer was required to keep.
As summarized by Judge Legg, the Court was charged with determining (1) whether a buyer’s purchase of a gun for another individual who could have legally purchased the gun was a “material fact” under the statute, and (2) whether a federally licensed firearms dealer is required to keep information about the buyer’s intent to purchase the gun for another. Justice Kagan, writing for the majority, answered in the affirmative to both questions. Because the scheme sets forth a number of steps to verify the purchaser’s identity and maintain records of the same, the Court reasoned, the statute is concerned with who actually is receiving the weapon, not just the person merely undergoing the transaction.
Given the Court’s holding, Judge Legg went into some of the unusual results of the statute’s operation; for example, though Abramski could not purchase the gun for another individual, he could have purchased the gun and given it to his uncle as a gift, or purchased it initially for himself but later decide to resell it to his uncle. Judge Legg also dissected Justice Scalia’s dissent, which he characterized as favoring a plain-language reading of the statute (with a dash of the rule of lenity thrown in for good measure) rather than, as Justice Scalia accused the majority, expanding the reach of the law to address whatever conduct it believed was consistent with the statutory goals.
Next up was Judge Murphy to discuss Navarette v. California… but not until relating a timely and related anecdote. Earlier in the day, Judge Murphy recounted, he made the first 9-1-1 call of his life when employees in his office saw a man on the roof of the building across the street who seemed to be thinking about jumping off. During the call, Judge Murphy said, the operator asked him if he would be willing to share his identity — catching him a little off-guard at the time, but, fortuitously, of particular relevance to the facts of Navarette. (Oh, and, no, the guy wasn’t actually suicidal; he was a worker on his lunch break who was willing to take much greater risks for sightseeing than the rest of humanity.)
In Navarette, an emergency call was placed by an unidentified individual alleging that a silver Ford F150 pickup truck had ran her off the road on California’s Highway 1, and who was even able to give the truck’s license plate number. Police followed the truck and — although they didn’t personally observe it being driven dangerously — pulled it over just to be on the safe side. (For those who have never traveled Highway 1 before, there are a lot of tight turns around steep cliffs involved.) In questioning the driver, the officers caught a whiff of marijuana, leading to the discovery of four large bags of the stuff in the truck bed. Navarette and his passenger sought to suppress the evidence, contending that the officers had to have independently observed something to give them a reasonable suspicion to stop the vehicle, an argument the lower courts didn’t go for. Would the Supreme Court?
Nope. Justice Thomas wrote that reasonable suspicion allowed police to rely on information beyond what they had personally observed, provided they reasonably believed that information was reliable. Under the facts of the case, the tip had sufficient indicators of reliability for the officers to make the stop without spending a significant amount of time observing the vehicle for an independent assessment.
First giving a shout-out to SCOTUSblog’s legendary Supreme Court correspondent Lyle Denniston — a former Baltimore Sun legal journalist — for his coverage and analysis of the case, Judge Murphy agreed with the majority and analogized the case to one he recalled from his early days in the Baltimore City State’s Attorney’s Office, Evans v. State. In Evans, an individual stopped police officers and claimed he had just been robbed and assaulted and could identify the perpetrator. Riding in the officer’s vehicle, he pointed out the alleged robber in another car, and the officer made the arrest, finding a stash of drugs and guns in the process. Problem: Somewhere in the middle of this scene, the supposed victim bolted and was nowhere to be found. Evans later claimed he had been set up by a guy he had taken drugs from earlier but hadn’t robbed or assaulted. What the truth was didn’t ultimately matter; the appellate court held the information available to the officer was sufficiently trustworthy to justify the arrest.
Like Evans, Judge Murphy interpreted Navarette to stand for the proposition that investigatory stops based on anonymous tips will be evaluated as a matter of the reasonableness of the officer’s actions. Though he acknowledged Justice Scalia’s dissenting view that the majority’s opinion places everyone at risk for being stopped on suspicion of intoxication resulting from a “single incident of careless driving,” Judge Murphy didn’t see anything too wrong with that, expressing his opinion that a brief investigatory stop to make sure the driver isn’t drunk or high — cue a well-timed joke from Judge Legg about Colorado — isn’t enough of a burden on individual freedom to rise to the level of a constitutional violation.
Mr. Raman wrapped up the criminal side of things, first addressing the Court’s take on warrantless cell phone searches incident to arrest in the consolidated cases of Riley v. California and United States v. Wurie. In Riley, police searched the defendant’s cell phone after he was arrested for possession of a firearm, finding evidence of gang affiliation that later tied him to a previous shooting; in Wurie, police searched a call log on the arrested defendant’s cell phone to obtain an address where drugs and guns were found. The Supreme Court picked up both cases to decide whether the warrantless searches violated the defendants’ Fourth Amendment rights.
A unanimous court decided they did. Officers are allowed to search without a warrant during an arrest to protect themselves and preserve evidence, concerns the Court didn’t really see in searches of digital data on a cell phone. (To Mr. Raman, however, this conclusion didn’t quite take into account legitimate problems with maintaining the integrity of data on cell phones, especially given the ability to erase data from them remotely.) Noting the Court’s comparisons of cell phones with other traditional physical items that a person carries with them, as well as the Court’s recognition of the sheer amount of information contained in the former as opposed to the latter, Mr. Raman summed up the holding in the phrase, “Digital is different.”
Mr. Raman interpreted Riley as virtually nullifying the application of traditional jurisprudence on searches incident to arrest to modern digital devices. Ultimately, however, he wasn’t sure why this distinction was necessary — after all, if information is on a person, what difference does it make what form it is in? He also hinted that Riley could have interesting implications in the Court’s future opinions on mass data collection.
Next, Mr. Raman turned to Bond v. United States, a case he chose especially for its wacky facts. When Ms. Bond, a worker for a chemical manufacturer, found out her husband had impregnated another woman, Myrlinda Haynes, she didn’t exactly take the news well. With a little bit of workplace thievery and Internet shopping, she was able to prepare some particularly noxious chemical concoctions that she then conspicuously slathered on exterior surfaces of Ms. Haynes’ home, including her mailbox and door knobs. After Ms. Haynes touched the toxic goo and suffered a minor burn, she called the authorities, and after a presumably short investigation — potentially something along the lines of, “Hey, Ms. Haynes, do you happen to know any chemical experts who would have a grudge against you?” — Ms. Bond was identified as the culprit.
Seeing how weird the case was already, prosecutors made the wise decision to make it even weirder, charging Ms. Bond both with mail theft and also, of course, violating an international chemicals weapons treaty passed into federal law through the Chemical Weapons Convention Implementation Act of 1998. Given the obviously larger implications of this novel international-law-based approach to locking up revenge-seeking scorned spouses, the Court stepped in and, speaking through Justice Roberts, successfully avoided the constitutional-issue-sized elephant in the room. While noting that it’s generally a bad idea to use treaties to regulate purely local conduct, Justice Roberts instead rested his decision on interpreting the Act to find that it wasn’t properly applied to your ordinary, average door-knob-covered-in-burning-slime poisoning case.
So why didn’t the Court delve into the weightier, treaty-themed constitutional topics staring it in the face? Mr. Raman (likely not speaking in his official capacity at this point) did a little math and speculated that the conservative wing of the Court — Roberts, Scalia, Thomas, and Alito — had the votes to grant certiorari with hopes of digging into the big constitutional state-sovereignty issues in play. However, Mr. Raman hypothesized, when it came time to issue a decision, the conservatives didn’t have the votes to support their position. Rather than have the rest of the Court set some precedent he wouldn’t approve of, the theory goes, Justice Roberts joined the majority, issued the opinion to himself, and decided the case on somewhat more trivial grounds. Having imparted that tidbit of possible intrigue, Mr. Raman turned the discussion over to Mr. Biran to discuss developments in the civil arena.
Mr. Biran started with an addition to Establishment Clause jurisprudence, Town of Greece v. Galloway, which arose from the Greece, N.Y., town board’s practice of having local clergy give a prayer at the beginning of monthly public meetings. Given the size of the town and somewhat limited religious diversity around, the prayers were, as a practical matter, almost entirely delivered by Christian church officials, leading to an eventual lawsuit claiming that the prayers violated the First Amendment. (After the threat of litigation materialized, Mr. Biran noted, there was a concerted effort on the part of the town to mix it up a little, such that even a Wiccan priestess got to spiritually kick things off at a board meeting.) Taking the district court’s finding that the town didn’t discriminate against any religions in selecting the speaker or the content of the prayers, the Court was charged with determining whether the primarily Christian nature of the custom nonetheless offended the Establishment Clause.
Justice Kennedy, writing for the 5-4 majority, held that the history and tradition of the Establishment Clause demonstrated that it was never meant to prohibit religious prayer in government, particularly when — as he characterized the ones at issue here — the prayers were primarily for the legislators themselves rather than the public. (Justice Thomas’ concurrence, Mr. Biran mentioned, held that the Establishment Clause wasn’t incorporated against the states, a position that not even Justice Scalia wanted to touch.) Finding that to be a newly narrowed take on the Clause, Mr. Biran highlighted Justice Kennedy’s conclusion that what matters for purposes of the Establishment Clause is coercion and not, as the appellees contended, whether any onlookers or participants are offended. Mr. Biran therefore interpreted Town of Greece as focusing the analysis of legislative-prayer cases on the effects on observers and other members of the public at the meeting, particularly those who are petitioning the government for some benefit and therefore have a greater potential to be coerced. He called this the “subjective coercion” test and speculated that lower courts would soon be struggling with a lot of litigation attempting to delineate what is coercive and what is not.
Mr. Biran placed the Town Of Greece holding within the larger context of societal change, which, he stated, includes an overall decrease in the importance of religion. (In a statistic he quoted, 20 percent of Americans now say that religion is not important in their lives.) Predicting that legislatures, looking to avoid scrutiny under the subjective-coercion test, would likely increase the number and types of religions represented in these invocations, Mr. Biran ended his thoughts on the case by noting that even atheists have recently begun efforts to take advantage of opportunities to lead them.
For his second case, Mr. Biran dove into the latest controversial campaign-finance case, McCutcheon v. Fed. Election Comm’n, wherein Justice Roberts, writing for a 5-4 majority, found that the two-year aggregate campaign-contribution limits established by the Bipartisan Campaign Reform Act of 2002 violated the First Amendment. The Court’s reasoning for this was its belief that the limit did not decrease corruption but actually decreased participation in the democratic process, therefore falling short of the “rigorous” standard of review under the First Amendment. In summarizing the holding, Mr. Biran pointed out the remarkably short shrift the Court gave to the precedent of Buckley v. Valeo, which stood for the opposite — that caps on individual contributions could be enacted to prevent corruption and were acceptable as modest restraints on political activity. (At least Justice Thomas’ concurrence, he noted, was clear in arguing that Buckley should be overruled entirely.) As to where he personally came down on the issue, Mr. Biran stated that he thought Justice Breyer’s dissent — which stressed the harm caused to the democratic process by the lack of campaign-finance regulation — was a more practical treatment of the subject, and believed that unlimited individual contributions can, at the very least, certainly give off the impression of corruption.
Judge Legg then retook the spotlight to discuss a civil case currently under consideration from the Court, Teva Pharm. USA, Inc. v. Sandoz, Inc., but quickly asked the audience not to leave even though he would be talking about patent law. To get the crowd up to speed on how this stuff works, he laid out the basic two-step framework for assessing an alleged infringement of a patent (which, in the parlance of the practice, is also called a “claim,” thus perpetually causing confusion in the rest of the lawyer universe): (1) claim construction, an interpretation of the language used to describe the patent; and (2) comparison of the properly construed claim with the allegedly infringing product. Prior to 1996, claim construction was a jury question, but the landmark case Markman v. Westview Instruments, Inc. held that the increasing complexity of patents required the judge to take the task over as a matter of law.
Teva Pharm. USA has finally came around to wrap up a couple loose ends of that decision, mainly, the proper standard for appellate review of a district court’s construction of a claim. The Court has granted certiorari to determine whether, as the Federal Circuit held, de novo review is applied, or whether the decision is examined only for clear error pursuant to Fed. R. Civ. P. 52(a). Judge Legg noted that Markman doesn’t exactly predict how the Court will come down on this: While the opinion establishes that the district court should undertake claim construction as a matter of law, it also described it as a “mongrel practice” with mixed questions of fact and law, such that the judge must often take expert testimony to aid in the analysis.
Ending the panel discussion with a bang was Judge Murphy and the highly publicized result in Burwell v. Hobby Lobby Stores, Inc., a case prominent enough that he didn’t waste time recounting the facts. (The short version for those who need it: Under the Patient Protection and Affordable Care Act, employment-based healthcare plans have to provide certain types of coverage, including for approved contraceptives. That didn’t fly with the family that owns and operates for-profit corporation Hobby Lobby Stores in accordance with certain Christian principles, including the belief that contraceptives are immoral. The company filed suit claiming a violation of its First Amendment rights and claiming protection under the Religious Freedom Restoration Act of 1993; the Court took the case on the basis of the latter.) In analyzing the holding, Judge Murphy characterized it as largely a matter of statutory interpretation under RFRA, and directed the audience to page 13 of Justice Ginsburg’s dissent for a summary of the relevant issues, reprinted here:
Do for-profit corporations rank among “person[s]” who “exercise … religion?” Assuming that they do, does the contraceptive coverage requirement “substantially burden” their religious exercise? If so, is the requirement “in furtherance of a compelling government interest”? And last, does the requirement represent the least restrictive means for furthering that interest?
Justice Murphy described the dissent as willing to stop at the second question and hold that, regardless of whether Hobby Lobby can exercise religion as a for-profit corporation, the contraceptive requirement didn’t substantially burden that exercise. To demonstrate why this would be, he handed out a copy of a simple two-page form that nonprofit organizations can complete to be exempt from the statutory requirements. If this was extended to for-profit corporations as well, he suggested, would that take care of the problem? Perhaps not, he conceded, particularly given that some organizations have recently claimed that even being required to fill out the form at all is a violation of their religious beliefs. (Indeed, Judge Legg added in jest, perhaps Mr. Abramski could have gotten around lying on his handgun-purchase form by alleging that merely filling out the form violated his religious beliefs.)
Judge Murphy warned that the Hobby Lobby decision could end up eviscerating certain anti-discrimination laws, arguing that the insertion of religious exemptions creates exceptions and loopholes that potentially can swallow the entire statutes. For example, he noted, many advocacy groups have recently pulled support for the proposed Federal Employment Nondiscrimination Act (currently pending in the Senate), because an exemption would effectively allow anybody to avoid the law by claiming it violated their religious beliefs. Of course, Judge Murphy opined, because the problem stems from RFRA, Congress could always amend the statute to correct the problem — but, then again, he asked, “Has Congress fixed anything lately?”
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