Who Let the Dogs Out? Sniffing Out the Fourth Amendment

Background

The Fourth Amendment

The Fourth Amendment protects people from unreasonable searches and seizures. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In Katz v. United States, the Fourth Amendment was expanded to protect an individual’s right to privacy. Since then, a two-prong test was implemented in Smith v. Maryland to determine if the Fourth Amendment was applicable. Fourth Amendment rights are granted if:

  1. a person “has exhibited an actual (subjective) expectation of privacy” AND
  2. society is prepared to recognize that this expectation is (objectively) reasonable.

Now, how do we apply the Fourth Amendment to tenants who live in apartment buildings with common areas?

The Split

Five circuits have held that tenants do not have a reasonable expectation of privacy in the common areas of their apartments. The circuits reason that the common areas of apartments are open to people beyond the control of the tenants. This includes delivery people, repair services, and visitors of other tenants.

The Sixth Circuit is the only circuit that holds it is reasonable for tenants to expect privacy in the common areas of their apartments. The Sixth Circuit agrees that people beyond the tenants control will enter the common area, but there is an actual expectation of privacy from the general public or trespassers.

“I thought this article was going to be about dogs. I only read this for the dogs. Where are the dogs?”

The Seventh Circuit is one of the five circuits that held that tenants do not have a reasonable right to privacy in common areas of their apartments United States v. Concepcion.

However, the Seventh Circuit held in a recent decision, United States v. Whitaker, that the use of a drug sniffing dog in a common hallway, lead to a tenant’s door, is a ‘search’. The Seventh Circuit cited Justice Kagan’s concurrence in Florida v. Jardines. A drug sniffing dog is considered to be a super sensitive instrument that has the ability to detect objects and activities that are “not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and requires a warrant.”

The Seventh Circuit was very careful to define that the tenant in Whitaker did not have a reasonable expectation of privacy in the common area, but held that a drug-sniffing dog comparable to a sensitive device is not a reasonable expectation for the tenant. Here, a drug sniffing dog resulted in an unreasonable search by the government in violation of the Fourth Amendment.

Looking Forward

The Fourth Amendment strives to protect the privacy interests of individuals against illegal searches and seizures. The true spilt comes from a lack of clarity in terms of what is considered a reasonable expectation. Until there is clarity regarding a reasonable expectation of privacy, the Circuit Courts will just be chasing their own tails.

Waking the Dormant Commerce Clause

The Dormant Commerce Clause is a confusing and made-up doctrine crafted by the Court to prevent states from isolating themselves from the rest of the country for their own pecuniary benefit. The doctrine attempts to honor the delegation to Congress in Article I to regulate interstate commerce by preempting a state’s ability to pass laws regulating interstate commerce. However, states may be able to pass laws that favor the state in one particular scenario.

Facially Neutral, Discriminatory Impact

Generally, if a law patently or facially advantages a state at the expense of its peers, the law will receive strict scrutiny, essentially dooming the law. However, laws that do not discriminate on their face, but nevertheless have a discriminatory impact, may not run afoul of the dormant commerce clause. In Pike v. Bruce Church., the Court stated what has become the test for whether a given law violated the dormant commerce clause:

Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit.

In simpler terms, if the law purports to benefits the state or local economy more than it burdens interstate commerce, the law is constitutionally sound.

                 The Split

Now, since this is a circuit splits blog, you’re probably asking yourself why this all matters since the Supreme Court already spoke on the subject. Well, states are split on what legislatures have to do to save their law: Do they need to simply assert putative local benefits? Or, does there need to be some evidence that the law will in fact create local benefits?

Well—the circuits are, you guessed it, split! The Second, Third, Eighth, and Tenth Circuits have a more substantive requirement, hoping to assure that the putative benefits are both “genuine and credibly advanced.” Inapposite—the First, Fifth, Ninth, and D.C. Circuits only require the assertion of local benefits—no matter how credible or genuine.

Looking Forward

In Kassel v. Kassel v. Consol. Freightways Corp., perhaps the most recent Supreme Court case on point, the Court’s reasoning indicates that the Second, Third, Eighth, and Tenth Circuits’ interpretation is correct, insofar that there is a substantive requirement on the state to ensure the asserted benefits are genuine and not just speculative. With seemingly more burgeoning issues on the Court’s horizon, it seems hopeful to wish this split will be resolved anytime soon; but, with the incoming administration’s alleged concern for federalism, perhaps precedent will trend towards allowing more state laws burdening interstate commerce.

Keep Calm and Carry On: The Trump Administration, the New High Court, and the Second Amendment

To say the first few weeks of the Donald J. Trump presidency has been eventful would be an understatement. Indeed, some may go as far to use adjectives such as chaotic, disorganized, and downright frightening.

The administration has been busy combating wide-ranging issues (and controversies) regarding the President’s hastily put together executive order banning refuges and immigrants from predominately Muslim nations, the confirmation of Betsy DeVos, Senator Jeff Sessions, as well as the various ethical conundrums he and his family have placed themselves in.

Trump and the Second Amendment

One issue that seems to have been overlooked is a statement issued by the President shortly after he was inaugurated.  Appearing under the headline “Standing Up For Our Law Enforcement Community” the President issued a statement on the White House’s official webpage, asserting that “supporting law enforcement means supporting our citizens’ ability to protect themselves. We will uphold Americans’ Second Amendment rights at every level of our judicial system.” President Trump’s statement came after months of pro-Second Amendment rhetoric by then-candidate Trump. Though the political climate in Washington has not been focused on major gun issues since Trump took office, the recent nomination of federal appellate judge Neil Gorsuch may potentially bring the Second Amendment back into the national spotlight.

Gorsuch and the Second Amendment

Judge Gorsuch is a Coloradan with a love of the outdoors, a trait he shared with the late Justice Scalia. Gun-rights groups praised the selection, believing Gorsuch to be a fierce protector of the Second Amendment.

A love of the outdoors is not the only passion Judge Gorsuch shared with Justice Scalia. According to commentators, the two jurists share not only a flair for writing vivid opinions, but a similar philosophy regarding constitutional interpretation. In fact, Judge Gorsuch’s commitment to originalism could make his nomination to the High Court all the more significant considering the current circuit split within the federal judiciary regarding whether an individual possesses a constitutional right to carry a firearm outside of the home.

In 2008 and 2010, the Supreme Court decided District of Columbia. v. Heller, and McDonald v. Chicago, respectively. In Heller, in an opinion written by Justice Scalia, the Court held the Second Amendment guarantees an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Two years later, in McDonald,  the Court incorporated the Second Amendment against the States via the Fourteenth Amendment. These decisions resulted in several cases being filed across the country testing the limits of the Amendment. The results have left a definite Circuit split regarding whether an individual possesses a right to carry a firearm outside the home, and specifically, whether “may issue” licensing schemes are unconstitutional.

Background on the Second Amendment

The text of the Second Amendment to the Constitution states: “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”

Early judicial decisions by the Supreme Court construed the Amendment narrowly. In United States v. Cruikshank, the Court ruled that, “the right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence.” The Court added that the Second Amendment is limited only to restrict the powers of the national government. The Court’s limited reading of the Second Amendment would continue well into the Twentieth-Century.

In United States v. Miller (1939), two defendants filed a demurrer, challenging the relevant section of the National Firearms Act as an unconstitutional violation of the Second Amendment. Writing for the Court, Justice McReynolds held that the shot-gun regulations proscribed by the National Firearms Act and the illegal interstate transportation of it was in no-way connected to the defendants’ service in a militia:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

However, in the pivotal case District of Columbia v. Heller, the Court held that the Second Amendment guarantees an individual’s right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purpose, such as self-defense within one’s own home, as respondent Dick Heller, sought to do. Justice Scalia devoted a significant portion of his opinion to analyzing the linguistic nature of the operative clauses, “right of the People” and “keep and bear arms.” Justice Scalia concluded that all the textual elements as well as the historical background of the amendment guarantee the individual right to possess and carry weapons “in case of confrontation.” He added that like the First and Fourth Amendments, the Second Amendments codified a pre-existing right.”

The Split: A Shootout within the Circuit Courts

Heller and McDonald, while constitutionally important cases, only determine half the issue. While the Supreme Court has vindicated the right to possess a firearm for the purpose of self-defense in the home, the Court has yet to declare a concomitant right outside of the home.

The Second Circuit

Shortly after the decision in McDonald, two New York plaintiffs as well as the Second Amendment Foundation, sought injunctive relief in the Southern District of New York, White Plains division.

The plaintiffs originally sought an injunction barring the handgun licensing authority from enforcing a New York law requiring handgun carry permit applicants to demonstrate “proper cause” for the issuance of concealed carry permits. The case was a direct challenge to New York’s “may-issue” system of concealed carry firearm licensing.  The defendants filed a motion to dismiss, which was denied by the court, and set a hearing to hear plaintiffs’ motion for summary judgment. On September 2nd, 2011, the court denied the motion, and simultaneously granted the defendant’s cross-motion for summary judgment in their favor.

The court, in applying intermediate scrutiny, found that the “good cause” requirement promotes and is substantially related to the government’s strong interest in public safety and crime prevention. On appeal, the Second Circuit, in Kachalsky v. County of Westchester affirmed the lower court opinion on similar grounds. Furthermore, the court noted that restrictions on firearms in New York law predate the ratification of the Constitution.

After losing at the Second Circuit, the appellants filed a petition for certiorari with the United States Supreme Court. However, certiorari was denied, as expected by some legal observers. It has been suggested that the Court will eventually hear a case like it, as the Circuit Courts are divided in their opinions on the issue of public handgun carry permit policies.

The First, Fourth, and Ninth: Sisters-in-Arms with the Second

Woollard v. Gallagher was initially decided in favor of the plaintiff seeking to renew a concealed carry permit in Maryland. The Fourth Circuit Court of Appeals decided the case along the same lines of reasoning as the Second Circuit in Kachalsky. Both the First and Ninth Circuits have similarly declined to expand the Second Amendment to include a right to possess a firearm outside of the home, with the Ninth Circuit in Peruta v. San Diego concluding that “Second Amendment right to keep and bear arms does not include, in any degree, right of member of general public to carry concealed firearms in public.”

The Smoking Barrel: Posner Resurrects the “outside the home” Theory

However, in the Seventh Circuit, the court ruled in Moore v. Madigan that Illinois’s no-issue permit policy was unconstitutional. Judge Posner wrote that while both Heller and McDonald noted that the “the need for defense of self, family, and property is most acute” in the home, that does not mean that it is not acute outside the home.

Specifically, Jude Posner focused Scalia’s framing in Heller of the Second Amendment as granting one a right to carry or possess a firearm in times of confrontation.

“[C]onfrontation is not limited to the home . . . one doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.”

The Seventh Circuit concluded that Illinois would need to demonstrate to the Court more than a rational basis for believing that its ban is justified by an increase in the public safety.

Looking Forward

The circuit split, while not being wide spread, could find itself extremely relevant considering the current political climate surrounding the Trump administration and the nomination of Judge Neil Gorsuch to the Supreme Court.

If confirmed, Gorsuch would be the necessary conservative vote to expand the Second Amendment’s protection to gun-owners looking to carry their firearm outside the home. Such a decision, while being celebrated by libertarians and gun-rights advocates, could have enormous and far reaching consequences in a wide variety of contexts, not limited to tort and product liability law, public safety, and policing.

Likely, even if the Court would announce such a right, it would hardly be the end of litigation attempting to fine tune and clarify the expanse of the Second Amendment. An avalanche of litigation within state and federal courts could consume the judiciary for years to come. Complicating the split is the fact that, while the weight of the circuit split falls in favor of a narrower reading of the Second Amendment, the courts that decided those cases largely sit within judicial circuits that have a more urban population. Courts that may agree with the Seventh Circuit may not even face the issue, as the relevant jurisdictions allow some form of concealed carry.

Nevertheless, the Court should hear the issue: Second Amendment rights are not second-order rights, and citizens (and legislatures) across the country deserve a clear statement of the law.

The Boys Are Back In Town: Now, What to do with the Women?

The end of WWII laid out some problems for America: now that the boys were back, was there any use for working girls? Despite the fact that women were qualified for the positions they’d held during the war, most were let go in order to make room for men in the labor market.

In these “reduction-in-force” discrimination suits, a plaintiff must establishes a prima facie case by showing:

  1. They belonged to a protected group,
  2. The employer discharged them,
  3. They were qualified for the position
  4. There exists evidence from which a fact finder could reasonably conclude that the employer intended to discriminate.

However, the Courts are still split on one issue:

In order to show that they were qualified, does a plaintiff have to establish that they satisfactorily lived up to the “reasonable expectations” of the employer, or do they have to simply show that they satisfied the basic requirements of eligibility?

The Split

The 7th

The Seventh Circuit, in Coco v. Elmwood Care, Inc. (1997), held that a plaintiff must prove that they met the “legitimate expectations” of their employer. In cases such as this, where there is no direct evidence of discrimination occurring, the burden of proof lies on the plaintiff to show that there is a genuine issue of material fact.

Plaintiff here, Coco, was a maintenance supervisor in a nursing home. His regular responsibilities included documenting safety and maintenance problems in his weekly reports, taking care of getting these problems fixed, and conducting fire and other safety drills. His employer, Elmwood Care, Inc. claims that Coco showed deficiencies in his work, not because of his age. The court agrees that defendant’s reasons aren’t entirely credible. However, plaintiff did not meet the threshold requirement presenting evidence of his work, thus barring the defendant from having to present, in court, reasons for his termination.

The district court here granted summary judgment for the defendant on the grounds that the plaintiff had failed to fulfill his burden of proof. The court stressed the importance of this requirement as evidence for a plaintiff’s fulfillment of “legitimate expectations” rests on “demonstrating the existence of a genuine issue of material fact.” Without any proof that the discharge was could not have been a result of the actual work he was doing, there is no way to prove discrimination. The court operates under certain preconditions:

  • plaintiff must be a member of a protected class, and if they are not then they cannot have been discriminated against, and
  • plaintiff must show they lived up to the legitimate expectations of their employer, otherwise they cannot show they wouldn’t have been fired without discrimination.

The 8th

42 U.S. Code § 1981 states that all persons will have the same rights and privileges enjoyed by white citizens in every state and territory and shall be subject to the same punishments and taxes, etc.

The Eighth Circuit held in Arnold v. Nursing and Rehabilitation Center at Good Shepherd, LLC, (2006) that the lower court ruling raised the standard set by the Supreme Court in order to show qualification.

Brenda Arnold, an African-American licensed practical nurse, worked at Good Shepherd. A resident accused her of verbal abuse, leading to an internal investigation by Good Shepherd. Subsequently, she was fired. A later investigation by the State of Arkansas concluded that there had been no verbal abuse, after which Arnold brought suit against Good Shepherd for violating 42 U.S. Code § 1981. The statute states that all persons will have the same rights and privileges enjoyed by white citizens in every state and territory and shall be subject to the same punishments and taxes, etc.

Arnold’s qualifications spoke for themselves: she was a licensed practical nurse and had served for almost a year before she was let go.

Though the Eighth Circuit Court did ultimately affirm the lower court’s ruling, the decision’s explanation for the term ‘qualification’ led to a split in the circuit courts.

Why It’s Important

Employment discrimination is never straightforward. Employees have an increasingly difficult time winning cases against their employers, and a split in the circuit court system allows for one region to function with a different set of rules. The threshold is lower for the Eighth Circuit Court, leaving plaintiffs in the Seventh Circuit at a disadvantage.

Furthermore, when an employee is forced to prove that they had fulfilled the “legitimate expectations” of their employers, it is difficult for them to quantify what their employer’s expectations were and if they managed to live up to them.

Looking Forward

 The threshold for qualifications must be universal in all circuit courts. The split in circuit courts here makes it difficult for lower courts to make a decision that doesn’t place plaintiffs at a disadvantage, and it is necessary for SCOTUS to grant a writ in order to resolve this inconsistency in the law.