The Shots Heard Round Richmond
Richmond, Virginia. Formerly, the home of the largest slave-trading center in the Upper South and the capital of the Confederacy during the American Civil War. Currently, the site of protests against police brutality and racial injustice, with activists removing or refacing Confederate monuments. The Chief Judge of the United States Court of Appeals for the Fourth Circuit recently said: “As a country, we are in a moment of reckoning.” See United States v. Curry, No. 18-4233 (Decided: July 15, 2020, Amended: July 16, 2020) (Gregory, C.J., concurring at 38).
United States v. Curry is a case stemming from the suspicionless stop of a pedestrian by the Richmond Police Department less than one minute after multiple gunshots were fired in a high crime area of Richmond. It is a fascinating opinion for a myriad of reasons. Read More…
Emergency Appellate Motions Practice in the Fourth Circuit
By Steve Klepper (Twitter: @MDAppeal)
A federal district court’s order granting or denying an injunction, including a preliminary injunction, is immediately appealable under 28 U.S.C. § 1292(a)(1). The appellant may move under FRAP 8 for a stay or modification of the injunction pending appeal, if the district court issued one against the appellant, or for an injunction pending appeal, if the district court denied an injunction the appellant requested.
As fast as federal district judges typically hear requests for preliminary injunctions, the Fourth Circuit often acts even faster. After litigating emergency motions in the Fourth Circuit a few times, I thought I’d pass along some pointers. Read More…
Fourth Circuit resolves nuts-and-bolts questions of removal jurisdiction
By Steve Klepper (Twitter: @MDAppeal)
Practice in the Fourth Circuit means that you often rely on persuasive authority on questions where, in other Circuits, you might expect to find on-point precedent. By local rule, the Fourth Circuit only issues reported opinions in cases where it hears oral argument. It hears oral argument at one of the lowest rates in the country. And, even when it does hear argument, it might still issue unreported opinions in cases that outsiders might think worthy of publication.
I was pleasantly surprised, therefore, to see the Fourth Circuit issue the first precedential appellate opinion in the country on an issue that I frequently encounter.[*] Read More…
Fourth Circuit adds to its line of cases on untimely criminal appeals.
Last week, I posted about United States v. Oliver, in which the Fourth Circuit held that the Court has the inherent authority to dismiss an untimely criminal appeal sua sponte. As that post was about to go live, the Fourth Circuit added to its limited jurisprudence in this area in United States v. Hyman, holding that the Government did not forfeit its objection to an untimely criminal appeal by waiting to file a motion to dismiss until after the defendant filed his opening brief. Read More…
A Procedurally Unusual En Banc Opinion from the Fourth Circuit
By Steve Klepper (Twitter: @MDAppeal)
Last Friday, in United States v. Chamberlain, the Fourth Circuit issued a unanimous en banc opinion overruling its precedents on “the pretrial restraint of a defendant’s innocent property pursuant to the federal criminal forfeiture statute.” The ruling was not a surprise, in light of the Supreme Court’s ruling in Luis v. United States, 136 S. Ct. 1083 (2016).
But the ruling was a procedural oddity. Read More…
Enter Judge Pamela Harris
Adam Farra
Guest contributor
Remember when that partisan street fight broke out after Pamela Harris was nominated to the Fourth Circuit by President Obama? David Fontana wrote in The New Republic that “liberals should rally behind” then-nominee Harris because she – “more than any other Obama judicial nominee” (whew!) – would “be a sympathetic vote to liberal causes,” would “give rise to the next generation of liberal legal elites,” and would “be an eloquent and inspiring champion of liberal jurisprudence.” Carrie Severino blisteringly responded in National Review that the Senate “should be deeply skeptical of her ability to put the law ahead of her political views,” and National Review did multiple pieces attacking her candidacy. The questioning at her confirmation hearing tracked this line of attack. Confirmed with 50 votes (no filibuster after Harry Reid triggered the nuclear option), Judge Harris fortified Obama’s transformation of the Fourth Circuit.
A few years have passed – and were the commentators right? Is she a liberal lion and a conservative’s worst nightmare?
United States v. Graham: The Fourth Circuit Rejects the Privacy Concerns of a Broad Range of Groups with Often Conflicting Interests
To appreciate the range of constituencies concerned with threats to privacy in this country, one need only examine the diverse array of amici supporting the appellants in United States v. Graham, No. 12-4659 (4th Cir., May 31, 2016) (en banc). Amici from the Conservative Legal Defense and Education Fund to the ACLU and from the Gun Owners of America to the Reporters Committee for Freedom of the Press lined up to voice their concerns in connection with the Fourth Circuit’s en banc review of its panel’s decision ruling that the government had violated Defendants’ Fourth Amendment rights when it obtained from their cellphone carriers’ records personal cell-site location information (“CSLI”) without a warrant supported by probable cause.[i] The Fourth Circuit nevertheless overturned the ruling.
New Employee Classification in the Fourth Circuit: Exotic Dancer
As a government legal adviser, I often encountered the question of whether a person performing services for Montgomery County was an employee or an independent contractor. The distinction held significance, because it determined who had responsibility for Social Security payments, unemployment insurance premiums, workers’ compensation benefits, overtime, and other aspects of the employment relationship. Simply designating a person as an independent contractor usually did not make it so. Instead, the activities performed by the person and the manner of performing them became key focal points.
“Hailstorm” decision could create turbulence for tracking tactics
By John Grimm
Guest contributor
Last month, the Court of Special Appeals handed down a major Fourth Amendment decision, holding that police need a warrant to use “cell site simulators” to track people’s locations through their mobile phones. State v. Andrews, No. 1496, Md. Ct. Spec. App. (March 30, 2016), involved the warrant-less use of the portable tracking device — also called an “IMSI catcher” and better known by various brand names including “StingRay” or “Hailstorm” — which mimics cellular network towers and causes all cell phones in its range to send a signal with the phone’s unique “international mobile subscriber identity,” or “IMSI,” number. With that number, police can measure the direction and relative strength of the phone’s signal to determine the phone’s location in real time. Because “people have a reasonable expectation that their cell phones will not be used as real-time tracking devices by law enforcement” and “an objectively reasonable expectation of privacy in real-time cell phone location information,” Slip Op. at 2, the court found that use of cell site simulators to track phones is a Fourth Amendment search, and “the government may not use a cell phone simulator without a warrant or, alternatively, a specialized order that requires a particularized showing of probable cause, based on sufficient information about the technology involved to allow a court to contour reasonable limitations on the scope and manner of the search, and that provides adequate protections in case any third-party cell phone information might be unintentionally intercepted,” id. at 64.
Spoliation of the Physical Subject of the Case Can Lose It
When we hear the word “spoliation,” we tend to think about the loss of electronically stored information, such as e-mail messages or other computer generated data. That’s because the loss of that type of evidence, and the drastic sanctions that result, is highlighted and seared into our consciousness by legal-news services. But earlier this week the Court of Special Appeals decided a spoliation case that concerned the destruction of a physical object – a house – that was “itself the subject of the case.” Cumberland Ins. Group v. Delmarva Power, No. 72 Sept. Term 2015, Slip Op. at 8 (Feb. 1, 2016). Balancing the fault of the destroying party with the level of prejudice suffered by the other party, the Court held that spoliation had occurred, that sanctions were warranted, and that the circuit court had not abused its discretion by granting summary judgment in favor of the prejudiced litigant.
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