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Bd. of Liquor License Comm’rs for Balt. City v. Kougl: “But I didn’t know there was prostitution at my adult entertainment club.”

By Brad McCullough

In the film classic Casablanca, Captain Renault claimed he was “shocked – shocked – to find gambling going on” in Rick’s café. Similarly, in a case recently decided by the Court of Appeals of Maryland, Steven Kougl was shocked that prostitution was being solicited in his adult entertainment establishment, The Club Harem. But the court found it unnecessary to pass on the credibility of Kougl’s claims of innocence and lack of knowledge, holding that liquor board regulations made him strictly liable for the illicit activities at his club. Bd. of Liquor License Comm’rs for Balt. City v. Kougl, No. 43, Sept. Term, 2016 (Feb. 17, 2017).

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Fourth Circuit delves into the conundrum of willfulness

By Stuart Berman
Guest contributor

Veteran federal prosecutors and defense lawyers can pretty much recite in their sleep the standard jury instructions defining “knowingly” and “willfully.” In the commonly used Modern Federal Jury Instructions, knowingly means “to act voluntarily and deliberately, rather than mistakenly or inadvertently. A person acts knowingly if he acts intentionally and voluntarily, and not because of ignorance, mistake, accident, or carelessness.” Willfully means “to act knowingly and purposely, with an intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law.” Simple enough, right? Read More…

Mitchell v. MVA: The Court of Appeals’ Reluctant Engagement with the Public Forum Doctrine

By Alan Sternstein

Braving to step into the “Stygian swamp that envelops the public forum doctrine,” Slip Op. at 19, the Court of Appeals in Mitchell v. Maryland Motor Vehicle Admin., 450 Md. 282, 148 A.3d 319 (2016) (“Mitchell”), successfully emerges from the swamp but leaves its way out as murky as the swamp it dared to enter. The Court affirmed the decision of the Court of Special Appeals, which, in turn, affirmed the Circuit Court’s judicial review of an Administrative Law Judge’s determination to uphold an action of the Maryland Motor Vehicle Administration (“MVA”). That action revoked vehicle license plates issued to the Appellant and bearing the Spanish word “MIERDA,” whose primary English meaning is the expletive “shit.” Heeding public forum analysis, though not without periodic pause, the Court’s opinion adopts essentially the reasoning of the Court of Special Appeals and holds that state-issued license plates are a nonpublic forum. Slip Op. at 2, 22. Consequently, MVA’s action passed muster under the standard discussed below and applicable to determining the constitutionality of government limitations on speech and expression in nonpublic forums. Read More…

Fourth Circuit invalidates police department’s social-networking policy as an impermissible prior restraint on speech

By Jonathan Biran

On December 15, in Liverman v. City of Petersburg, the U.S. Court of Appeals for the Fourth Circuit issued an interesting opinion dealing with public-employee speech in the digital age. In a unanimous opinion written by Judge Wilkinson (and joined by Judge Traxler and USDJ Hendricks), the Court sided resoundingly with two Petersburg (Virginia) police officers disciplined for having violated the social-networking policy of their Department by criticizing it in posted Facebook comments.

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Fourth Circuit Proves Infertile Ground for Heller Expansion

By Stuart Berman
Guest contributor

In its 2008 decision in District of Columbia v. Heller[1], the Supreme Court revolutionized Second Amendment jurisprudence by holding unconstitutional the District of Columbia’s ban on possession of handguns in the home, as well as its requirement that all firearms in the home be stored in a manner that rendered them inoperable for immediate self‑defense. When the Court subsequently held in McDonald v. City of Chicago[2] that the Second Amendment applied to state and local governments, some observers predicted a string of decisions invalidating firearms prohibitions. Because the five states in the Fourth Circuit are home to a large population of firearms owners, and several of those states have loosened gun restrictions and even permitted “open carry” of weapons, firearms advocates had reason to hope the Fourth Circuit might to take the lead in reading Heller expansively. As a recent decision demonstrates, however, those hopes have not been fulfilled.

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Fourth Circuit asks only if arbitrators did their job – not if they did it well

By Brad McCullough

The Fourth Circuit recently reminded us that “[t]he scope of judicial review of an arbitration award ‘is among the narrowest known at law.’” UBS Fin. Servs., Inc. v. Padussis, slip op. at 6, No. 15-2148 (4th Cir. Nov. 22, 2016) (citation omitted). When reviewing arbitrators’ decisions, reviewing courts ask only “whether the arbitrators did the job they were told to do – not whether they did it well, or correctly, or reasonably, but simply whether they did it.” Id. (internal quotation marks omitted) (citation omitted). A disgruntled UBS Financial Services likely wanted to borrow a phrase from Johnny Paycheck and tell the arbitrators to “take this job and shove it,” but its attempt to obtain relief from the arbitration decision fell on deaf judicial ears.[1]

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Md. High Court: No Post-Conviction DNA Test Requests After Alford Pleas

By John Grimm

The Court of Appeals recently held that defendants who plead guilty or enter an Alford plea are not eligible to request post-conviction DNA testing pursuant to Criminal Procedure § 8-201. Section 8-201 allows anyone convicted of a crime of violence to request DNA testing of evidence in their case, and § 8-201(d)(1) requires the court to order the requested testing if two conditions are satisfied:

(i) a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing; and

(ii) the requested DNA test employs a method of testing generally accepted within the relevant scientific community.

Md. Code Ann., Crim. Pro. § 8-201(d)(1). If the results of the DNA test are favorable to the petitioner, the court must open or reopen a post-conviction proceeding, or order a new trial. Id. § 8-201(i)(2).

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COSA Dissent Watch: Battered-Spouse Syndrome and Murder-For-Hire

By Chris Mincher

The case: Porter v. State, Sept. Term 2013, No. 1916 (Oct. 25, 2016)

The questions: Does Md. Code, Cts. & Jud. Proc. (“CJP”) § 10-916 permit a defendant implicated in a murder-for-hire scheme to introduce evidence of battered-spouse syndrome? Did the evidence in the case establish that the defendant had a subjective belief of an apparent imminent or immediate danger of death or serious bodily harm?

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Doe I, Doe II, Federal Dough and Federalism

By Alan Sternstein

Though supreme in their own domains, even sovereigns may, by agreement, accept obligations that lawfully bind them. Depending on the case, they may also pursue, even by coercion, rights granted by other sovereigns. This reflects nothing more than the operation at ever-higher levels of organization (partnerships, corporations, municipalities, states, and nations) the fundamental principles governing legal relationships between individuals. See generally W. Hohfeld, Fundamental Legal Conceptions (1919). These principles recognize the ability of juridical entities through the power of contract to create rights, duties, and other legal relationships among themselves, regardless of the comparative strength of their sovereignties by other measures.[i]

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Regulatory deference, not restrooms, at issue in high-profile petition

By John Grimm

One of the most closely watched cert petitions before the U.S. Supreme Court in its new term is G.G. v. Gloucester County School Board, scheduled for conference on October 14. The Fourth Circuit decision — which gained national attention in April — was a major milestone for transgender rights, but the petition raises only a narrow question unrelated to civil rights: whether the Court should abandon a relatively obscure, but increasingly controversial, doctrine of administrative law. G.G. is a striking example of how seemingly dry concepts of administrative procedure can have unexpected relevance outside of traditional “administrative law” practice areas.

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