Commentary: Second Amendment

My two blogging inspirations are going at it again. Their informative and collegial exchanges (other greats here and here, respectively (look for links to feddie’s responses in the comments, I want to keep his anonymity somewhat secured)) have been sorely missed.

Obviously, my own view on the debate tends to align more with Feddie. I think, even with his update, Publius’s position that the language of the Second Amendment is indeterminate is a bit strained. Sure, if you pull at the language hard enough, you can find a collective meaning. Nonetheless, if one interpretation has stronger support, that is what should form the basis for judicial decisionmaking. In that vein, I thought I would share some relevant additional support concerning the original public meaning of the Second Amendment:

• ‘Militia’ – The Second Congress enacted the Militia Act of 1792, which required every able-bodied white man of a certain age to be enrolled in the militia and, after enrollment, to procure a gun. No further organizational standards were required. Thus, the militia was originally understood as including all white males – or a large segment population entitled to full legal rights at the time. Following this logic and applying more recent constitutional amendments, the militia should be understood as most adult citizens, without any additional organization. The current definition of Militia in the U.S. Code comports with this understanding, although it limits the female membership – 10 U.S.C. § 311.
• ‘Free State’ – In the current issue of Notre Dame Law Review, Eugene Volokh offers a thorough canvassing of Framing Era and pre-Framing writings in support of the conclusion that this phrase does not refer to the states of the Union, but rather the platonic ideal free country generally.
• Noscitur a sociis – The Second Amendment is just that – second (or fourth) in the middle of a catalogue of individual rights. In the D.C. Circuit opinion, Judge Silverman cogently notes the term ‘the people’ “is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation.” *18. It would be exceedingly odd for a states’ rights amendment to be put in the midst of these individual guarantees.
• Early Commentaries – Four early commentaries on the Constitution both supported the individual rights interpretation. Feddie quotes Justice Story (1833), and additional commentaries in favor of an individual rights interpretation by St. George Tucker (1803) and Judge Cooley (1891) have been recognized as equally influential. William Rawle (1829) went even further, suggesting that that the Second Amendment was self-incorporating against the states by its own force: “The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”

As a final, and general, response to Publius’s position regarding the role of policy generally, I will quote from Judge Kleinfeld’s excellent dissent in Silveira v. Lockyer (¶ 66):

“Constitutional interpretation cannot properly be based on whatever policy judgments we might make about the desirability of an armed populace, or the relevance of the Amendment's concern with citizen militias to modern times. Those who think the Second Amendment is a troublesome antique inappropriate to modern times can repeal it, as provided in Article V. That has been done before, as with legislative selection of Senators, and with Prohibition.”

Split Noted: What is the Fourth Amendment Standard for a Visual Body Cavity Search of an Arrestee?

Per People v. Hall, 2008 WL 762250, *5-*9 (N.Y. Mar. 25, 2008)

A police officer with twenty years narcotics experience observed Azim Hall take cash from a friend, go into a bodega, and, three minutes later, hand the friend two small white objects appearing to be crack. Mr. Hall was taken into custody. A search of his clothing revealed no contraband. He was then taken into a private detention room, asked to remove his clothing and bend over. A visual inspection revealed a string of plastic hanging out of his rectum. The officer thereupon pulled on the string and removed a plastic bag containing crack.

The New York Court of Appeals (their court of last resort) suppresses the drugs and, therefore, dismisses the indictment. It reasons that a manual body cavity search (the removal of the drugs) requires a warrant under the Supreme Court’s decision in Schmerber v. California (1966). In Schmerber, the Court held that a warrant would be needed for searches which intruded into the body, absent emergency circumstances.

In the course of so holding, the court noted that the circuits have split over whether a warrant is required for a visual body cavity search. The Supreme Court has expressly reserved judgment on this issue. A majority of the courts which have considered the issue have ruled that reasonable suspicion justifies such a search – CAs 2,5,7. On the other hand, the CA 9 and several Virginia state courts have held that a warrant is still required for such searches. The CA 8 also has precedent which seems to point in this direction. A quick google search also indicates that some states’ operating procedures require officers to seek warrants before performing such searches.

Split Noted: Can a District Court Require Its Sentence To Be Served Consecutively to an Anticipated, but Unimposed, State Sentence?

Per United States v. Quintana-Gomez, 2008 WL 763368, *4 n. 2 (5th Cir. Mar. 25, 2008)

Gregorio Quintana-Gomez pled guilty to illegal re-entry of the United States. The Northern District of Texas imposed a sentence of 57 months, also ordering such sentence to be served consecutively to any federal sentence that might be imposed for a violation of supervised release then pending in the Southern District of Texas. Subsequently, the Southern District revoked Quintana-Gomez’s supervised release but sentenced him to six months, concurrent with the 57 month sentence.

18 U.S.C. § 3584 governs the imposition of consecutive or concurrent sentences. The text of the statute suggests that a court has the power to decide how order multiple sentences only when (1) multiple terms of imprisonment are imposed at the same time, or (2) a defendant is already subject to an undischarged term of imprisonment. The implication of this language is that the Northern District (being the first court and imposing a single sentence) had no authority to decide whether its sentence should be consecutive or concurrent. This Fifth Circuit panel agrees with this interpretation, holding that the Northern District’s order should be without effect.

This holding comports with the only other circuit to consider the question of conflicting federal court sentencing orders. In the course his discussion, however, Judge Jolly notes that the circuits have split over whether district courts have the power to require its sentence to be served consecutively to anticipated, but unimposed, state sentences. The CAs 5,8,10,11 state that the federal courts have such authority, whereas the CAs 4,6,7(dicta) hold that they are without it. The Fifth Circuit based its previous precedent on the dual sovereignty doctrine, which is plausible, but I think that that the other side of the split has the better understanding of a plain statute.

Split Widened: What Constitutes a Service Under the Airline Deregulation Act?

Per Air Transp. Ass’n of Am. v. Cuomo, No. 07-5771-cv, *9-13 (2d Cir. Mar. 25, 2008)

Ever sat inside a plane on the runway for hours on end? Not a pleasant experience. If you have traveled out any of New York City’s three major airports, that feeling is certainly familiar; they are three of the four worst major airports in terms of on time performance. New York State passed the Passenger Bill of Rights in order to ameliorate the delay – it requires airlines to provide adequate food, drinking water, fresh air, lights, and sanitary services to passengers who have been delayed on the tarmac for more than three hours. The Air Transport Association, the representative organization of the airline industry, brought suit seeking declaratory and injunctive relief, arguing that the Passenger Bill of Rights was preempted by the federal Airline Deregulation Act and violated the dormant Commerce Clause.

The Airline Deregulation Act expressly preempts any state law or regulation concerning “a price, route, or service of an air carrier.” This Second Circuit panel holds that the Passenger Bill of Rights concerns the services of an air carrier. “Although this Court has not yet defined ‘service’ as it is used in the ADA, we have little difficulty concluding that requiring airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground delays relates to the service of an air carrier.”

In so holding, the panel recognizes that it is widening a circuit split. The CAs 3,9 have construed ‘service’ more narrowly – excluding any amenities and limiting ‘service’ to mean the prices, schedules, and airports served by the airline. CAs 1,4,5,7,11 (and now 2) all take a broader view of ‘service,’ defining it to include any anticipated provision of l>abor from the airline to its passengers.

Additional coverage from Wait a Second!. While that entry contends that this case is a “perfect” cert candidate, I disagree. In dicta, the panel noted that the Federal Aviation Act of 1958 may preempt the entire field of airline regulation. On this point, the CAs 3,9 are in line with the other circuits. Moreover, the cases in which the CAs 3,9 took their narrow view of the express preemption clause concerned personal injury torts, which even this decision recognizes might not be preempted. Although several states have proposed similar Bills of Rights, the Department of Transportation has requested comment on regulations setting a similar national standard, making this case unlikely to be repeated. Finally, I think that the Court may decide to give its recent preemption decisions (including one relied on in this case - Rowe) time to percolate through the circuits before taking up a case on the issue.

Splits Noted: Does Severe Attorney Misconduct Justify Equitable Tolling? Is Equitable Tolling More Justified in Capital Cases?

Per Downs v. McNeil, 2008 WL 756348, *17-*26 (11th Cir. Mar. 24, 2008)

Ernest Downs was paid $5,000 dollars to kill Forest Jerry Harris in 1971. He was convicted of first degree murder and sentenced to death in 1978. Since then, he has filed numerous appeals. Beginning in 1992, Downs was represented by Florida’s Capital Collateral Regional Counsel organization, a special government body charged with assisting indigent death-row inmates. This appeal originates that same year, when CCRC filed a motion to vacate the sentence. That motion remained pending for five years, during which time AEDPA established a new time limit for state prisoners to seek federal habeas corpus. The district court summarily dismissed Downs’s habeas petition, so this Eleventh panel assumes Downs’s allegations, as set forth below, are true.

Downs was aware of the law and wrote his CCRC counsel several times to ensure that he comply with the strict one year deadline. Counsel informed Downs that a state petition had been filed (which would toll the federal deadline) when, in fact, it had not. The state petition was eventually filed on the last day of the federal timeline. After it was filed, the two attorneys at CCRC who were qualified to be lead counsel on a capital case resigned from Downs’s case, leaving CCRC without an attorney who could serve as lead counsel. When a new counsel was finally hired a year later, Downs informed him of the timing issue and sought to file for federal habeas immediately. The new CCRC counsel did not follow this directive and, indeed, returned Downs’s draft of a federal habeas motion. The Florida Supreme Court denied the motion to vacate and, nine days later, CCRC attorneys filed a petition for federal habeas corpus. The district court found the petition to be time-barred by AEDPA.

This panel of the Eleventh Circuit reverses, holding that serious attorney misconduct, more than mere negligence, constitutes an extraordinary circumstance which merits equitable tolling of AEDPA’s deadline. In order to qualify for tolling, such a circumstance must not only be ‘extraordinary’, but also beyond petitioner’s control and unavoidable even with due diligence. In so holding, the CA 11 widens a split between the CAs 3,5,9,10 (so holding) and the CA 7 (applying a bright-line rule that all attorney misconduct is attributable to the client under agency theory, and thus denying all tolling). The CA 4, in dicta, has suggested that it would agree with the CA 7. The Eleventh Circuit panel questions the agency law underpinnings of the Seventh Circuit’s rationale, noting that when an agent acts adversely to the principal, the principal cannot be charged with the agent’s misdeeds.

The panel states that its decision on this issue is not influenced by the fact that this is a capital case. Indeed, it cites circuit precedent which disfavors giving the fact that a case is a capital case any special weight. During this discussion, the panel notes that CAs 4,7,11 agree, whereas CAs 1,3 do treat death as different in determining whether equitable tolling should apply.

Totally regardless of the merits of Downs appeals, the course of behavior by the state capital attorneys in this case does raise larger questions regarding the justice of system...

Split Noted: What is the Proper Application of the Ministerial Exception?

Per Rweyemamu v. Cote, 2008 WL 746822, *17 n. 4 (2d Cir. Mar. 21, 2008)

Plaintiff, Father Justinian Rweyemamu, filed a Title VII suit alleging that the Diocese of Norwich (CT) racially discriminated against him by denying him a promotion and, ultimately, firing him. This is not the first lawsuit arising from these facts; Father Rweyemamu had previously appealed to higher church authorities as well as filed state law claims of discrimination. The Church found ‘just cause’ for his removal. In this suit, as in the preceding state claims, the district court cited the ‘ministerial exception’ and dismissed the case.

Dating to approximately 1900, the ministerial exception is a doctrine that reflects an unwillingness of the courts to interfere with ecclesiastical hierarchies. The exception is part of the common law tradition, rather than specifically enacted by Congress into Title VII. This Second Circuit panel stresses the First Amendment heritage of the exception (both free exercise and establishment are implicated), emphasizing that it is not simply a matter of judicial abnegation. Just for fun, note that this decision concerning abnegation and the Catholic Church came down on Good Friday.

During the discussion of the ministerial exception, however, Judge Walker notes that the circuits have split on how to apply it. CAs 1,3,9,10 treat the exception as a waivable affirmative defense. CAs 6,7 treat it as a jurisdictional bar. Finally, CAs 5,11 treat the ministerial exception as just that – an exception meaning that Title VII does not apply to claims between a church and its ministers. This case is the first in which the Second Circuit affirms the existence of the ministerial exception. It does not delineate its view of the boundaries and application of the exception in this case, where any of the three views would bar judicial review. The panel therefore affirms, finding Title VII unconstitutional as applied to Father Rweyemamu’s claims.

Additional coverage from How Appealing and Wait a Second!.

UPDATED: As the comment from Wait a Second!'s author notes, I misread his entirely accurate summary. I have changed my mischaracterization and apologize.

Split Widened: Does § 1981 Create a Private Right of Action Against State or Municipal Actors?

Per Arendale v. City of Memphis, 2008 WL 731226, *5-*9 (6th Cir. Mar. 20, 2008)

Plaintiff Michael Arendale, a white male, is eighteen year veteran of the Memphis Police Department. He brought a civil rights suit against the city, alleging that his African-American supervisor discriminated against him in assignments, created a hostile work environment, improperly suspended him, and retaliated against him after he had lodged complaints. The complicated factual basis for these complaints is irrelevant to the instant circuit split concerning § 1981.

In Runyon (1976), the Supreme Court recognized that § 1981 created an implied right of action against private defendants. Nonetheless, in Jett (1989), the Court held that the implied right of action did not extend to state actors. The question presented in this split is whether the 1991 Civil Rights Act’s amendment of § 1981 overruled Jett. The statutory language at issue is currently codified at § 1981(c), which provides that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”

The Ninth Circuit has held that this language demonstrates a clear intent to hold state actors liable (overturning Jett), whereas the CAs 4,10,11 have held that this language does not reach Jett’s holding. This Sixth Circuit panel sides with the majority school, noting that, although the 1991 act does create a new right against state actors, it is silent as to remedies. Any violation of § 1981 by a state actor, then, must be remedied through a § 1983 claim. This strikes me as the right result, being that the 1991 Act was passed after the Court had substantially limited its willingness to find implied rights of action absent some explicit indictation of Congress’s intent – witness the evolution from Borak – Cort – Cannon – Touche Ross – TransAmerica – through Sandoval.

Additional coverage from Split Circuits.