Rereading Washington v. State after Tyre Nichols’ Homicide
A week ago, I wrote about Tyrie Washington v. State of Maryland, a decision by the Supreme Court of Maryland filed on December 19, 2022, which held that unprovoked flight in a high-crime neighborhood provides reasonable articulable suspicion to conduct a Terry stop.
Last week, like most people in the United States and abroad, I followed with horror the events leading to Tyre Nichols’ homicide.
Tyre Nichols’ flight from police was provoked by his fear and their brutality. His homicide is a painful reminder of why innocent people fear the police, especially uniformed officers patrolling high-crime neighborhoods. In Washington, the SCM precisely and explicitly recognized that reality while upholding that “unprovoked flight” in a high-crime neighborhood is a sufficiently compelling factor to justify a Terry stop. After watching body camera footage of Tyre Nichols’ visceral fear of the police in the minutes before his death, I reread the SCM’s decision in Washington. How can flight provoked by a legitimate fear of police justify the detention for criminal investigation of a citizen?
Read More…U.S. Supreme Court to decide whether mere mention of someone’s name during predicate offense constitutes aggravated identity theft.
On November 10, 2022, the United States Supreme Court granted certiorari in Dubin v. United States, No. 22-10, to decide “whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.” Oral argument is scheduled for February 27, 2023.
This issue not only divided the Fifth Circuit, but it split the federal circuits as well.
The Fifth Circuit’s per curiam opinion in United States v. Dubin, 27 F.4th 1021 (5th Cir. 2022), essentially stands for the proposition that any time a real person’s identity is used during a health care fraud, even if the identity was lawfully obtained, and the person did in fact receive health care services, that a conviction for aggravated identity theft will be automatic, and so will the two-year mandatory consecutive sentence of imprisonment.
In this case, Dubin was convicted of health care fraud for overbilling Medicaid by $101 for a psychological evaluation his company provided to a patient. For this he was sentenced to one year and a day in prison. However, the Government also charged Dubin with aggravated identify theft in violation of 18 U.S.C. § 1028A and obtained a conviction on that count as well, adding a mandatory two year consecutive sentence of imprisonment to Dubin’s sentence. The Government obtained this conviction, not because Dubin stole or misrepresented anyone’s identity, but because he included his patient’s accurate identifying information on the Medicaid claim that misrepresented how and when the service was performed. The Government argued at trial that Dubin’s commitment of the health care fraud offense “obviously” meant that he was “also guilty of” aggravated identity theft because aggravated identity theft is an “automatic” additional offense whenever someone commits provider-payment healthcare fraud.
The Fifth Circuit affirmed the Section 1028A conviction holding that Dubin’s fraudulent billing scheme constituted illegal “use” of a means of identification of another person.
Read More…Unprovoked Flight, Reasonable Articulable Suspicion, and Article 26
On December 19, 2022, the Supreme Court of Maryland filed Washington v. State, No. 15, September Term, 2022, addressing whether unprovoked flight in a high-crime neighborhood adds to the reasonable articulable suspicion necessary to detain a person under the Fourth Amendment and Article 26 of the Maryland Declaration of Rights.
Washington follows in the footsteps of Illinois v. Wardlow, 528 U.S. 119 (2000), where the Supreme Court of the United States considered whether unprovoked “headlong flight” in a drug-trafficking area constitutes reasonable articulable suspicion for law enforcement to detain a person. Wardlow determined that “headlong flight—wherever it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” However, a lot has happened in the past 20 years that could explain why a person’s flight from law enforcement is entirely consistent with innocence.
Read More…Kisor v. Wilkie and the Next Chapter in Administrative Deference
By John Grimm & Guest Contributor Mark Davis
The Supreme Court recently decided Kisor v. Wilkie,[1] a case that addresses when courts are required to defer to agencies’ interpretations of their own rules. The general rule that courts defer to an agency’s reasonable interpretation of its own regulations when they are ambiguous was articulated in the case Auer v. Robbins[2] and is referred to as Auer deference. Auer deference has been subject to criticisms that it allows agencies to issue what amount to new regulations without going through the rulemaking process and that it is an abdication of the judicial role of interpreting the law.
Supreme Court requests response to State’s petition on marijuana odor
[Update, 10/2/2017: The Supreme Court has denied certiorari.]
This March, the Court of Appeals of Maryland held in Norman v. State that an “odor of marijuana alone emanating from a vehicle with multiple occupants does not give rise to reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous and subject to frisk.”
The State of Maryland petitioned for certiorari to the Supreme Court of the United States, posing the following question: Read More…
Fifteen Days to Go, and an Avalanche — 15 — Maryland Court of Appeals Cases Left to Decide!
By Michael Wein
Last year, with about one week to go before the Maryland Court of Appeals’ self-imposed deadline for deciding all cases in a September term by the following August, the Court had only four cases left to decide. Per the “Pending Cases” page on the Court of Appeals’ web site, with two weeks to go before this year’s deadline, 15 decisions are left to decide. Of these 15 cases, seven are civil, six are criminal, one is an Attorney Grievance matter (which the oral arguments indicate was, interestingly, remanded back to the trial judge for additional findings and re-argued in the same term), and one is a Bar application case.
Shapiro v. McManus: Round Two for the Constitutionality of Maryland’s 2011 Congressional Redistricting
Shapiro v. McManus, No. 14-990, 136 S. Ct. 450 (decided Dec. 8, 2015), started as a challenge, on First Amendment grounds, to Maryland’s 2011 congressional redistricting. It appears, however, that Maryland and Supreme Court watchers nationwide will need to wait before the Court potentially sheds light on the lawfulness of that or other First Amendment challenges to congressional and state legislative redistricting.[1] In Shapiro, a unanimous Supreme Court ruled only that the Fourth Circuit Court of Appeals erred in affirming the District Court’s decision that it was not required under the Three-Judge Court Act, codified at 28 U.S.C. § 2284, to convene a three-judge panel to consider Petitioners’ First Amendment challenge to the 2011 redistricting. Further, because the Court has already summarily and unanimously upheld an equal-protection challenge to Maryland’s 2011 redistricting, see Fletcher v. Lamone, 831 F. Supp. 2d 887 (D. Md. 2011), aff’d 133 S. Ct. 29 (2012), it seems unlikely that Shapiro will clarify the standards applicable to a constitutional challenge to redistricting.
Supreme Court split delays resolution of dues question
As we await the appointment of a successor to the empty seat on the U.S. Supreme Court, one of the early casualties of a tie vote has already occurred. Many public employers and employees had their eyes on a recent case involving the California Teachers Association, because its outcome had the potential to alter the relationship between public employees and their union representatives that has existed since the 1970s. Instead of a scintillating analysis by the Court, a tie vote yielded only a one-line order that left the decision of the Ninth Circuit Court of Appeals intact along with the existing precedent from the 1970s and 1980s. See Friedrichs v. California Teachers Ass’n, No. 14-915.
Justice Kagan tells criminal defense bar to go big or go home
By Steve Klepper (Twitter: @MDAppeal)
In Luis v. United States, a fractured Supreme Court found that, in a prosecution for Medicare fraud, the federal government could not freeze untainted assets needed to retain defense counsel. The vote alignment was unusual, and none of the four opinions commanded a majority. The opinion drawing the most attention is Justice Kagan’s solo dissent, which Ian Millhiser has called “the most interesting opinion the Court has handed down this year.” That dissent, read together with a prior opinion on pretrial seizures, sends an important message to the criminal defense bar – go big or go home. Read More…
Second Amendment threatens state stun gun bans
By John Grimm
Guest contributor
Last week, in a short per curiam opinion, the U.S. Supreme Court vacated a Massachusetts woman’s conviction for possessing a stun gun, holding that it violated her Second Amendment rights. Caetano v. Massachusetts, No. 14-10078, — S. Ct. — (2016). For Maryland lawyers (and clients), the case is no mere academic matter; at least three jurisdictions have laws on the books banning stun guns: Defendants can get up to six months in jail for possessing a stun gun in Baltimore and Howard Counties, or 60 days in Baltimore City. It’s hard to imagine these ordinances surviving Caetano, at least as applied to simple possession of a stun gun without some additional element (such as possession by a minor or someone with a prior conviction for a crime of violence, which are both illegal in Maryland).
Maryland Appellate Blog 