Reading the Fifth: Supreme Court Exercises its Right to Remain Silent on What Comprises a “Criminal Case”

BACKGROUND

The Self-Incrimination Clause of the Fifth Amendment protects individuals from being compelled to bear witness against themselves in a criminal case. Courts have struggled with the scope of this protection, particularly regarding what comprises a “criminal case.” Does the term extend to pre-trial proceedings, such as a bail hearing? Has a person’s Fifth Amendment right against self-incrimination been violated if the compelled statement in question is never used in a court of law?

Over the past thirty years, the Supreme Court has never directly resolved the question of what constitutes a “criminal case.” In dicta from United States v. Verdugo-Urquidez (1990), the Supreme Court indicated that the Fifth Amendment right was merely a trial right. But later, in Mitchell v. United States (1999) the Supreme Court indicated that the right extended to sentencing hearings.

The question of what comprises a criminal case was more recently addressed in Chavez v. Martinez (2003). In his plurality opinion, Justice Clarence Thomas declared that a statement was not a violation of the Fifth Amendment right against self-incrimination where the individual first hadn’t been charged with a crime and where the individual’s statements had not been used in a criminal case. Thomas further wrote:

“Mere coercion doesn’t violate the self-incrimination clause minus use of compelled statements in a criminal case against the witness…a ‘criminal case’ at the very least requires the initiation of legal proceedings.”

Three other justices disagreed, arguing that self-incrimination is complete the moment a confession is compelled, regardless of whether the statement is used at trial.

After the opinions in Chavez were released, a circuit split developed over the definition of a criminal case under the Fifth Amendment.

THE ISSUE

Does the Fifth Amendment right against self-incrimination include statements compelled in pre-trial proceedings?

THE SPLIT

The Third, Fourth and Fifth Circuits resolved this question in favor of Justice Thomas’s view, holding that the right against self-incrimination is only a trial right. In Renda v. King (2003), the Third Circuit determined that questioning while in police custody without providing Miranda warnings is not a Fifth Amendment violation if the individual is never charged with a crime and their responses are never used in a trial.

But on the other hand, in Vogt v. City of Hays (2017) the Tenth Circuit resolved this question in favor of a broader reading of the term “criminal case,” allowing the term to include certain pre-trial proceedings. The Second, Seventh, and Ninth Circuits take a similar view of the right against self-incrimination.

The facts of Vogt are unusual. In Vogt, a police officer for the City of Hays admitted during an interview with a neighboring police department that he had illegally retained a knife obtained during his employment as a police officer. The neighboring police department agreed to hire Vogt on the condition that he report the illegal retention of the knife to the Hays police department. Upon Vogt’s admission, Hays initiated a criminal investigation against him. The charges were dropped, but Vogt sued, claiming that the state violated his Fifth Amendment right against self-incrimination by inducing him to confess.

The Tenth Circuit in Vogt concluded—after examining the text of the Fifth Amendment and the Founders’ intent—that the right against self-incrimination includes pre-trial proceedings. The court noted that the Fifth Amendment makes no mention of “trial” or “criminal prosecution,” instead using the term “criminal case.” The court pointed to Counselman v. Hitchcock (1892) wherein the government argued that a witness could not invoke the Fifth Amendment in a grand jury proceeding because it was not a “criminal case.” The Supreme Court rejected the government’s argument there, holding that the “criminal case” of the Fifth Amendment is a broader term than the Sixth Amendment’s “criminal prosecution.”

Additionally, to determine the meaning of “criminal case,” the Tenth Circuit consulted the most prominent dictionary of the Framers’ era: purportedly Noah Webster’s An American Dictionary of the English Language. In this dictionary, “case” was defined as “a cause or suit in court.” This definition, where “suit” is understood to be nearly synonymous with “cause,” indicates that the Framers understood the criminal case to encompass more than merely the trial. From these facts, Tenth Circuit concluded that the right against self-incrimination is more than just a trial right.

LOOKING FORWARD

The City of Hays appealed the Tenth Circuit’s decision in Vogt, and the Supreme Court granted certiorari on September 28, 2017. The case was argued before the Court on February 20, 2018; however, whether this split will be resolved by the Vogt appeal is yet to be seen. Justices Samuel Alito and Sonia Sotomayor both noted the case was “odd,” and Justice Breyer even questioned whether the strange and distinguishing facts of Vogt made it an appropriate one for the Court to take. The Supreme Court has the option to dismiss the case as improvidently granted, but it is likely that the Court will publish an opinion resolving this constitutional issue soon.

On a constitutional question of this magnitude, let’s hope the Supreme Court doesn’t choose to plead the Fifth.

Does Pre-Trial Detention Toll a Term of Supervised Release?

Supervised Release

For some people who are convicted of a criminal offense, a sentence can include a term of supervised release (also known as special or mandatory parole). Under 18 U.S.C. § 3624, the federal supervised release statute, a term of supervised release begins on the day that a person is released into the custody of a parole officer. The federal supervised release statute also provides that the term of supervised release is tolled during any period where the person is imprisoned in connection with a conviction for a different federal, state, or local crime.

The Issue

Jason Mont began a five-year period of supervised release on March 6, 2012. On June 1, 2016, Mr. Mont was arrested on state charges and held in pre-trial detention until he pleaded guilty in October 2016. In June 2017, Mr. Mont’s supervised release was revoked, and he was ordered to serve an additional 42 months for violating his supervised release. In United States v. Mont (2018), Mr. Mont claimed that the court did not have jurisdiction to revoke his supervised release, arguing that his supervised release ended on March 6, 2017 (five years after he was initially released). Following circuit precedent established by United States v. Goins (2008), the Sixth Circuit held that pretrial detention that leads to a conviction counts as time “in connection with a conviction,” as described in the federal statute.

The Split

Several circuits have spoken to whether time served in pretrial detention counts as time “in connection with a conviction” for the purposes of the federal supervised release statute, in addition to the Sixth Circuit’s previous ruling in Goins. The Fourth Circuit in United States v. Ide (2010), the Fifth Circuit in United States v. Molina-Gazca (2009), and the Eleventh Circuit in United States v. Johnson (2009) have all held that pretrial detention counts for the purposes of the federal supervised release statute. In contrast, the D.C. Circuit in United States v. Marsh (2016) and the Ninth Circuit in United States v. Morales-Alejo (1999) held that time served in pretrial detention does not qualify.

The Ninth Circuit is the only circuit that has directly addressed the statutory language in the federal supervised release statute:

“A plain reading of this language…suggests that there must be an imprisonment resulting from or otherwise triggered by a criminal conviction. Pretrial detention does not fit this definition, because a person in pretrial detention has not yet been convicted and might never be convicted.”

In Mont, the Sixth Circuit explicitly rejected this interpretation.

Looking Forward

This case has not attracted much attention within the legal community since the Sixth Circuit’s ruling was handed down this past February, but it does have important ramifications for persons whose sentences include a period of supervised release. With six circuits having weighed in on opposite sides of a matter of federal statutory interpretation, the time is ripe for an aggrieved party to petition the Supreme Court for a definite ruling on this issue. Mr. Mont has ninety days from the date of the Sixth Circuit’s judgment to file a writ of certiorari to the Supreme Court – while this deadline has not passed, it is not yet clear whether he will file a petition. In the alternative, given that this issue arises out of different interpretations of a federal statute, Congress could pass a bill to amend the current statute and clarify whether pretrial detention that leads to a conviction counts as time served in connection with a conviction.

On an Electronic Soapbox: Is a Privately-Operated Public Access Television Channel Subject to the First Amendment?

The Issue

The First Amendment normally only limits and regulates governmental action, not the acts of private entities; therefore, First Amendment violation claims are only viable if they are against a state actor. But when does a private entity become a state actor for First Amendment purposes? Regarding public access television channels, this answer has remained unclear. Public access channels are set aside for public, educational, or governmental purposes and a cable system operator provides them at the request of local government. The Second Circuit recently held in Halleck v. Manhattan Cmty. Access Corp. (2018) that a public access television station operated by a non-profit corporation is a public forum and considered a governmental actor for constitutional purposes. In making this determination, the Second Circuit acknowledged that it was in direct contrast with its sister D.C. Circuit’s decision in Alliance for Community Media v. FCC (1995).

The Split

In Halleck, two producers for the Manhattan Neighborhood Network (MNN), a not-for-profit corporation designated as the operator of the public access channel by the Manhattan Borough President, were suspended after they produced content that presented MNN in a negative light. The producers brought a claim against MNN, stating that as a public access channel under municipal control, its employees were subject to First Amendment restrictions. The Second Circuit found in favor of the producers, analogizing a public access channel to “a speaker’s soapbox” and finding support in a concurring opinion written by Justice Kennedy and joined by Justice Ginsburg in Denver Area Educ. Telcoms. Consortium v. FCC (1996).

In Denver Area Educ. Telecoms. Consortium, the plurality opinion did not definitively resolve the classification of such channels as public fora. Instead, two opposing camps each articulated different views. On one side, Justice Kennedy and Justice Ginsburg concluded that:

public fora do not have to be physical gathering places, nor are they limited to property owned by the government. Indeed, in the majority of jurisdictions, title to some of the most traditional of public fora, streets and sidewalks, remains in private hands…Public access channels are analogous; they are public fora even though they operate over property to which the cable operator holds title.

On the opposing side, Justice Thomas, Justice Scalia, and Chief Justice Rehnquist stated that because the channel was privately owned it could not be a public forum. As neither view held majority support, the issue remained unanswered by the Supreme Court.

In Alliance for Community Media, the D.C. Circuit Court of Appeals held that a public access channel was not a public forum and, therefore, not subject to First Amendment restrictions. The court differentiated parks and streets—which it classified as examples of public fora—from public access channels because the channels “belong to private cable operators; are managed by them as part of their systems; and are among the products for which operators collect a fee from their subscribers.” In contrast to the reasoning in Halleck, the D.C. Circuit held that although a public access channel “must provide communications facilities to those who desire access for their own purposes,” it is not a public forum “in the First Amendment sense and does not transform the entity’s discretionary carriage decisions into decisions of the government.”

Looking to the Supreme Court for an answer

Labeling a television station as a public forum carries significant consequences for its operators as it limits their ability to restrict content. Therefore, whether courts classify channels as modern versions of a town square—or the equivalent—has direct implications on the programming that can be broadcast to the public. In his plurality opinion in Denver Area Educ. Telecoms. Consortium, Justice Breyer said it would be “premature” to classify public access channels as public fora. (Or to not classify them as such.) However, given that 22 years have elapsed since the Court’s opinion and that a circuit split has subsequently developed, perhaps the Supreme Court would consider the issue appropriately mature enough to return with a clear answer sometime soon.

Sitting or Standing … Injury in Fact after a Data Breach?

The Issue

“If you live in the U.S. and breathe oxygen, there’s a good chance you may be impacted by the latest security breach [Equifax].” –CNN

A battle wages on between creative hackers and information security professionals, each struggling to outpace the other.  Likely, most of us already have had personal or medical information leaked in one of several massive data breaches in recent years, possibly even today with the news coming out that five million Lord and Taylor and Saks Fifth Avenue customers had their information stolen. Until you are hit with identify theft, medical insurance fraud, or some other abuse of your data, your options are only to lock down credit reports and purchase identity theft insurance, then sit back and hope your personal information is not misused.

In the meantime, you are upset, you are worried, but so far it does not seem like the hackers have used your data.  For the sake of this article, we will call you an “Unharmed Victim.”   Do you have standing to sue?

In Fero v. Excellus Health Plan (W.D.N.Y. 2018), hackers gained access to the Excellus’ computer network and the personal identity information (PII) of more than 10.5 million individuals; however, as far as the plaintiffs knew, the hackers had not yet used or misused their stolen data.

The Fero case highlights a wide split among the Circuit courts.  In Fero, a district court found standing for Unharmed Victims of a data breach to sue, relying on the rationale of a recent unpublished Second Circuit case, Whalen v. Michaels Stores (2017)The Fero court cited to similar holdings in several other Circuits which found plaintiffs had standing based on an increased identity theft risk, including Galaria v. Nationwide (6th Cir. 2016), Remijas v Neiman Marcus (7th Cir. 2015), and Attias v. Carefirst (D.C. Cir. 2017).

On the other hand, the Third, Fourth and Eighth circuits in Reilly v. Ceridian Corp. (3rd Cir. 2011), Beck v. McDonald (4th Cir. 2016) and In re: SuperValu Inc., Customer Data Security Breach Litigation. (8th Cir. 2017), all declined to find standing in data breach cases wherein hackers had not yet used or misused plaintiffs’ stolen data.

The Standing Requirement

In Lujan v. Defenders of Wildlife (1992), the U.S. Supreme Court noted that a plaintiff bears the burden of establishing standing by demonstrating three elements: 1) an injury in fact; 2) fairly traceable to the challenged conduct of the defendant; and 3) likely to be redressed by a favorable judicial decision.

Further to the first element of Lujan, in Clapper v. Amnesty Int’l USA (2013), the U.S. Supreme Court stated that a plaintiff must allege an injury that is “concrete, particularized, actual or imminent…” and emphasized that a future injury must be “certainly impending,” rather than simply speculative.

In certain circuits, Unharmed Victims’ ability to establish standing by pleading an injury in fact is significantly more challenging than in other circuits.

The Split

The Fero court cites the Sixth, Seventh and D.C. Circuit in finding standing on the basis that an increased identity theft risk is sufficient to state an injury in fact.

Those three Circuit Courts could not find a reason why hackers would break into a database and steal consumers’ private information, if not intending harm. The courts reasoned that the most likely and obvious motivation for hackers was to use plaintiff’s PII nefariously or to sell it to someone who would.  The court in Fero adopted this rationale, especially because the PII stored on the Excellus networks was particularly valuable for committing identity theft and fraud.  “All of these injuries suffered by the Plaintiffs and Class Members are a direct and proximate result of the Excellus data breach and include … the imminent and certain impending injury flowing from fraud and identity theft posed by their PII and PHI being placed in the hands of unknown third parties.”

The Sixth Circuit went a step further by holding that the combination of theft by “ill-intentioned criminals” and the reasonable mitigation costs by the plaintiffs such as purchasing credit reporting services and frequently reviewing bank statements results in an injury in fact. “Where Plaintiffs already know they have lost control of their data, it would be unreasonable to expect plaintiffs to wait for actual misuse…before taking steps to ensure their own personal and financial security.”

On the other side of the split, the Third, Fourth and Eighth circuits have declined to grant standing to plaintiffs whose stolen data was not yet used or misused, saying the mere risk of identity theft is too speculative to constitute an injury, and therefore insufficient to constitute injury in fact.   Specifically, the Fourth Circuit argued against standing because as more and more time passed after the breach, with the plaintiffs still unable to produce evidence of their PII or PHI being misused, the threat of injury became more and more speculative.

The Fourth and Eighth Circuits argued against the mitigation of risk argument put forth by the Sixth Circuit and held that the costs plaintiffs incurred in “protecting themselves against this speculative threat cannot create injury” (8th Cir.)  and “self-imposed harms cannot confer standing.” (4th Cir.)

Notably, the D.C Circuit flatly contradicts the more time, more speculation rationale put forth by the 4th Circuit and found the plaintiffs had standing, even though they had “not suffered any identity theft or other harm in more than three years since the breach.”

Looking Forward

On February 16, 2018, the U.S. Supreme Court denied certiorari to review an appeal of the D.C. Circuit’s decision to deny standing in Attias v. CareFirst.

Without Supreme Court guidance, the Sixth, Seventh, and D.C. circuits have now seemingly emerged as the clear forums of choice for data breach class actions.  Conversely, defendant companies will logically seek to consolidate data breach class actions in the Third, Fourth and Eighth Circuits.  There are other Circuits not mentioned in the Fero case that may widen the split on this issue.

Do the due process restrictions on shackling criminal defendants apply equally to jury and non-jury proceedings?

Background

Due process under the Fifth and Fourteenth Amendments restricts the use of physical restraints on criminal defendants during a criminal trial. Because shackles are inherently prejudicial, the Supreme Court instructed in Deck v. Morrison (2005) that defendants should only be shackled during trial as a last resort. Shackles interfere with a jury’s ability to make accurate determinations about both guilt and sentencing because they imply to a jury that the defendant is dangerous, and may cause a jury to infer negative attributes about the defendant’s character.

The Court established a rule in Deck that physical restraints that are visible to a jury may only be used after a trial court determination that they are justified by an essential state interest, based on particular concerns in a specific defendant’s trial. For example, a trial court may find that a particular defendant poses such severe security risks that shackling is necessary to protect the occupants of the courtroom. Judges may not impose blanket rules about the use of restraints, and the inquiry must be specific to concerns about the particular defendant. The Deck rule applies to both guilt-determination proceedings and to sentencing proceedings.

The Court builds the rule in Deck v. Morrison from three essential principles:

  • The presumption of a defendant’s innocence until proven guilty. Visible restraints erode the fairness of the criminal proceeding by implying that the defendant is dangerous and tipping the scale in favor of guilt.
  • The defendant’s constitutional right to counsel. Shackles interfere with a defendant’s ability to move freely to communicate with her attorney. Defendants physically struggle to write when they are restricted by shackles, which limits their ability to effectively communicate with counsel during criminal proceedings.
  • The dignity and decorum of the courtroom is necessary to support confidence that the legal system pursues justice as it handles the potential deprivation of liberty. Courtroom dignity requires that defendants are treated respectfully.

The Issue

The Court only addressed jury proceedings in Deck. The Deck holding left lower courts to determine whether a defendant’s due process rights require the same justification for shackles in proceedings without juries.

The Split

The Second Circuit does not require a specific evaluation of the need for restraints in non-jury proceedings. Because juror prejudice is the primary concern for limiting the use of restraints in the courtroom, the Second Circuit examined in United States v. Zuber (1997) whether a concern of prejudice is present when judges rather than juries do the sentencing.

We traditionally assume that judges, unlike juries, are not prejudiced by impermissible factors, …, and we make no exception here. We presume that where, as here, the court defers without further inquiry to the recommendation of the Marshals Service that a defendant be restrained at sentencing, the court will not permit the presence of the restraints to affect its sentencing decision.

Similarly, the Eleventh Circuit held in United States v. Lafond (2015) that the Deck rule against restraints only limits the use of restraints at proceedings with juries.

The Ninth Circuit arrived at a different conclusion in United States v. Sanchez-Gomez (2017). The court extended the Deck rule to non-jury proceedings and clarified that it applies in pretrial, trial, and sentencing proceedings. The Ninth Circuit now requires that, before shackling a criminal defendant in both jury and non-jury proceedings, courts must decide if the security concerns with the particular defendant outweigh the infringement on the defendant’s due process right.

Continuing with the rationale for the Deck rule, the court applied the principle of presuming a defendant’s innocence until proven guilty.

The principle [that defendants are innocent until proven guilty] isn’t limited to juries or trial proceedings. It includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel. A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.

Using the third Deck justification, the Ninth Circuit reasoned that dignity and decorum require consistent application of the rule:

Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life. A member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need.

Looking Forward

The Supreme Court recently granted a writ of certiorari for Sanchez-Gomez, but declined to take up the issue of whether due process prohibits the use of restraints in non-jury proceedings. The circuit split and conflicting rationales present a need for clarity on this important constitutional issue.

 

 

 

 

Agree to Disagree: Defining Submission to Police Authority

Issue

The Fourth Amendment of the Constitution protects against unwarranted searches and seizures, which begs the question—what exactly constitutes a seizure? In California v. Hodari D. (1991), the Supreme Court held that a “seizure” requires either physical force or submission to police authority. In the wake of this decision, circuit courts have struggled to define the phrase, “submission to police authority,” resulting in a split of authority. The emergent view in the Courts of Appeals, although admittedly uneven within the circuits, is that when a suspect does nearly anything more than pausing briefly, including any significant verbal engagement with the officer, that action is strong evidence of submission.” United States v. Camacho (1st Cir. 2011). Some courts have adopted this rather broad interpretation of the term, imparting a low standard for submission. Other courts have adopted a narrow view, requiring additional conduct to meet the standard.

The issue of defining submission is incredibly significant because of its impact on other aspects of a case. For example, whether or not a defendant is deemed to have submitted to police authority can determine what evidence may be presented at trial, which can significantly influence the outcome of a case. The Fourth Amendment serves to protect against unwarranted invasions of privacy by requiring probable cause. The Fourth Amendment “prohibition on unreasonable searches and seizures is enforced through the exclusionary rule, which excludes evidence seized in violation of the Fourth Amendment.” United States v. Camacho (1st Cir. 2011).

The Split

The following circuits have adopted the view that brief compliance followed by flight does not constitute submission.

  • Second Circuit: In United States v. Huertas (2d Cir. 2017), the court held that, in dealing with the police, conduct that amounts to evasion cannot be considered submission.
  • Third Circuit: In direct contradiction with the Tenth Circuit’s ruling, the court in United States v. Valentine (3d Cir. 2000) held that a brief pause does not make for a submission, and therefore the defendant in this case was not seized within the Fourth Amendment meaning.
  • Ninth Circuit: In United States v. Hernandez (9th Cir. 1994), the court rejected the defendant’s argument that he was “seized” because he briefly submitted to the police officer’s show of authority before fleeing. The court here requires a discernible showing of compliance to constitute submission:

“We decline to adopt a rule whereby momentary hesitation and direct eye contact prior to flight constitute submission to a show of authority. Such a rule would encourage suspects to flee after the slightest contact with an officer in order to discard evidence, and yet still maintain Fourth Amendment protections.”

The following circuits have adopted the view that brief compliance followed by flight does constitute submission.

  • First Circuit: In United States v. Camacho (1st Cir. 2011), the court held that once a defendant responds to questions posed by the police, he or she has submitted to police authority.
  • Tenth Circuit: In United States v. Morgan (10th Cir. 1991), the court held that even the slightest form of compliance, in this case, a momentary hesitation, is enough to constitute submission. The court explains its reasoning as follows:

“Here, the intrusion on Mr. Morgan in regard to the initial attempted questioning by Officer Eubanks and the subsequent exchange between the two was minimal. However, since Officer Eubanks had followed the car in which Defendant was a passenger for several blocks with his red lights flashing; since Officer Eubanks exited from a marked police car, in uniform, and asked the Defendant to hold up; and since Defendant, at least momentarily, yielded to the Officer’s apparent show of authority, we find Mr. Morgan was seized for purposes of the Fourth Amendment during the initial portion of the encounter.”

  • D.C. Circuit: In United States v. Brodie (D.C. Cir. 2014), the court ruled that when a defendant complies with an officer’s orders by engaging in overt acts, such as putting one’s hands on the car, the defendant has submitted to police authority.

Looking Forward

Although the Supreme Court expressly outlined the requirements for a “seizure” in California v. Hodari D. (1991), it still left some questions unanswered—circuit courts were tasked with the responsibility of defining “submission to police authority,” and conflicting rulings resulted. Branden Huertas submitted a petition for writ of certiorari to the Supreme Court in December 2017, in hopes of appealing the Second Circuit’s decision in United States v. Huertas (2017). In the petition, Huertas discusses the split among the lower courts and urges the Supreme Court to review the issue. In his petition for a writ of certiorari to the U.S. Court of Appeals for the Second Circuit, Huertas notes: “The conflict is widely recognized by courts and commentators. It also is deeply entrenched; the courts on either side of the split have acknowledged the contrary reasoning of their peers and have had multiple opportunities to reconsider their positions, but the conflict has persisted. Thus, only this Court can restore uniformity on this important question of Fourth Amendment law.” For further reading, see the petition for writ of certiorari: Huertas v. United States.

Do Potential Deportees Have A Constitutional Right To Be Made Aware Of Discretionary Relief From Removal?

The Issue

Section 212(h) of the Immigration and Nationality Act (INA) lists reasons and conditions under which a potential deportee can request discretionary relief from removal. However, not all persons who are subject to deportation know that the possibility of relief is available. Because granting relief from removal is a wholly discretionary decision, deportees who fail to present their eligibility during their removal proceedings might not receive such relief.

Emilio Estrada is a Mexican citizen who was charged with illegal re-entry after deportation, and subject to deportation proceedings.  Estrada’s attorneys failed to advise him about his possible eligibility for relief from deportation, and Estrada did not request discretionary relief. Estrada later collaterally attacked his deportation order, claiming that this failure constituted a violation of his due process rights. In United States v. Estrada (2017), the Sixth Circuit disagreed. Relying on precedent, the court stated that there is no constitutionally-protected right to be informed of relief from deportation because such relief is discretionary. The Sixth Circuit joins six of its sister circuits in this holding. But the Second and Ninth Circuits have held that there is a constitutionally-protected right to be informed of potential relief from deportation, and that a failure by an attorney or an immigration judge to make the potential deportee aware of such relief constitutes a due process violation.

The Split

In Estrada, the Sixth Circuit followed circuit precedent from Huicochea-Gomez v. INS (2001), stating that “an individual has no constitutionally-protected liberty interest in obtaining [or being informed of] discretionary relief from deportation.” The court further stated that the discretionary nature of the relief does not “create a protectable liberty or property interest,” and without such an interest, a due process violation cannot occur.

The Sixth Circuit joins the majority of its sister circuits in holding that an undocumented immigrant does not have a constitutional right to be informed of eligibility for discretionary relief:

  • In Smith v. Ashcroft (2002), the Fourth Circuit stated that “for a statute to create a vested liberty or property interest giving rise to procedural due process protection, it must confer more than a mere expectation…of a benefit. There must be entitlement to benefit as directed by statute.”
  • In United States v. Lopez-Ortiz (2002), the Fifth Circuit stated that “[discretionary relief] conveyed no rights, it conferred no status,” and its denial does not implicate the Due Process clause.”
  • In United States v Santiago-Ochoa (2006), the Seventh Circuit relied on dicta from a previous circuit decision, stating that “it would be hard to show that the loss of a chance at wholly discretionary relief from removal is the kind of deprivation of liberty or property that the due process clause was designed to protect.”
  • In Escudero-Corona v. INS (2001), the Eighth Circuit stated that “eligibility for suspension is not a right protected by the Constitution. Suspension of deportation is rather an act of grace that rests in the unfettered discretion of the Attorney General,” and as such, did not confer a constitutionally-protected right.
  • In United States v. Aguirre-Tello (2004), the Tenth Circuit held that an undocumented immigrant’s constitutionally-protected rights only included the right to “be heard at a meaningful time and in a meaningful place, and nothing more.”
  • In Oguejiofor v. Attorney General of the United States (2002), the Eleventh Circuit held that the petitioner could not assert a due process challenge because he had “no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief.”

In contrast, the Second and Ninth Circuits have held that there is a constitutional right to be advised of discretionary relief:

  • In United States v. Copeland (2004), the Second Circuit stated that “[failing] to advise a potential deportee of a right to seek…discretionary relief can, if prejudicial, be fundamentally unfair.”
  • In United States v. Lopez-Velasquez (2010), the Ninth Circuit stated that “failure to advise an alien of his potential eligibility for discretionary relief violates due process.”

Looking Forward: The Current Administration and the Role of Attorneys

The United States Supreme Court denied certiorari in United States v. Lopez-Ortiz (2002). But given the current administration’s heightened enforcement of immigration laws and the constitutional question posed by this now-current issue, the circuits — and potential deportees and their families — would benefit from a clear ruling from the Supreme Court on this issue. The Sixth Circuit’s ruling brings to the forefront an issue that could have a tremendous and life-changing impact on potential deportees. Because Estrada considers a constitutional question, rather than challenging an actual exercise of discretion, this issue should not fall prey to the bar to judicial review of discretionary immigration decisions.

Estrada, and the cases cited above raise another concern — the failure by attorneys to make their clients aware of the potential for discretionary relief, which was the grounds upon which Mr. Estrada and other potential deportees claimed that their due process rights had been violated. This is not to suggest that attorneys are outright failing their clients. The INA is a complex statute and the grounds for relief are not entirely obvious or well-publicized. Section 212(h) of the INA provides an exhaustive list in of reasons upon which a potential deportee can request relief. While the measures for relief are discretionary and do not guarantee that a person’s deportation will be suspended, attorneys who are representing potential deportees should be aware that there are federal statutory provisions that could help them more thoroughly advocate for their clients. Attorneys — and even law students — who work with undocumented immigrants and others who could be subject to deportation proceedings can take steps to educate themselves and their colleagues on these measures.

Bill of Rights protections for all — or maybe just for some: Are non-citizens protected?

Background

In contrast with the Fifth and Sixth Amendments’ use of the words “person” and “accused,” the First, Second and Fourth Amendments’ text protects certain rights of “the people.” The Fifth and Sixth Amendments prescribe certain rights of individuals in criminal proceedings, while the First, Second, and Fourth provide rights to the public at large. This distinction affects who is protected by these amendments.

Who are “the people” protected by the First, Second and Fourth Amendments? An obvious starting point would be citizens of the United States. But what about permanent resident aliens and refugees residing in the US? What about aliens living in the US without a legal immigration status? Those on a temporary stay visa? Or other classes that may attempt to claim the right? The Supreme Court purported to answer these questions in United States v. Verdugo-Urquidez (1990). It held that the use of “people” in the Fourth Amendment, as well as in the First and Second Amendments, refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.” The problem then is determining who is part of this national community. Who is considered to have sufficient connection with the United States such that their rights are protected by the First, Second, and Fourth Amendments?

Issue

The Supreme Court has not further clarified who falls under the umbrella of “the people,” and whether the class of “people” is the same in the First, Second and Fourth Amendments. The Court, instead, has left it to lower courts to wrestle with what determines if an individual is part of the class for asserting a constitutional right.  As a result, a difficult question courts have grappled with is whether aliens unlawfully residing in the United States are part of “the people.” With over twelve million such aliens currently residing in the United States, there is a need for a definite answer on what constitutional protections they possess. The Supreme Court in Verdugo-Urquidez declined to decide this issue because “such a claim [was not] squarely before” it. The Court did, however, suggest that an alien who is in the United States voluntarily and has accepted “some societal obligations” may be considered part of “the people.”

The Split

There is a split between the Fifth and the Seventh Circuit on the issue in relation to the Second Amendment. The Fifth Circuit Court of Appeals in United-States v. Portillo-Munoz (2011) held that an alien unlawfully residing in the United States is not a member of “the people” and therefore not given the Second Amendment right to bear arms. Armando Portillo-Munoz had acquired a gun to protect his employer’s chickens from coyotes.  He had been voluntarily present, although unlawfully, in the United States. He was working a steady job, paying rent for his home, and financially supporting his girlfriend and daughter. Yet, the court denied him protection under the Second Amendment and emphasized a distinction between aliens in the United States lawfully and those in the United States unlawfully, even those with substantial connections to the United States. The Eight Circuit in United States v. Flores (2011) and the Fourth Circuit in United States v. Carpio-Leon (2012) have taken the same approach.

The dissent in Portillo-Munoz worried about the implications of the majority’s holding not just for the Second Amendment, but for the First and Fourth Amendments as well. The dissent argued that:

There are countless persons throughout Texas, Louisiana, and Mississippi, who, like Portillo-Munoz, work for employers, pay rent to landlords, and support their loved ones, but are unlawfully residing in the United States. The majority’s reasoning renders them vulnerable — to governmental intrusions on their homes and persons, as well as interference with their rights to assemble and petition the government for redress of grievances — with no recourse.

The Seventh Circuit’s decision came in United States v. Meza-Rodriguez (2015). Mariano Meza-Rodriguez was brought to the United States as a young child and had been residing unlawfully in the country since that time. The court held that an alien unlawfully residing in the United States had the Second Amendment right to bear arms. It emphasized Meza-Rodriguez’s plainly substantial connections to the United States having lived in the country for several years. Despite its holding on this issue, the court upheld a statute prohibiting aliens such as Meza-Rodriguez from possessing firearms and ammunitions because “the right to bear arms is not unlimited” and the ban on the possession of firearms by such aliens “is substantially related to the statute’s general objectives.” Ultimately, the Seventh Circuits disagreement with the Fifth Circuit was not essential to the holding of the case.

While there is not much consideration on the issue with regard to the First Amendment, several circuits have provided Fourth Amendment protections to aliens unlawfully residing in the United States and none have definitively denied the protection. The Fifth Circuit opined in Martinez-Aguero v. Gonzalez (2006) that “cases from [the Fifth Circuit] state unequivocally that aliens are entitled to Fourth Amendment protection.” More recently, during immigration proceedings against a putative alien, the Ninth Circuit stated that in such proceedings it allows for the “suppression of any evidence seized in connection with a Fourth Amendment violation that is egregious.” Armas-Barranzuela v. Holder (9th Cir. 2014). The First Circuit follows a similar approach. Garcia-Aguilar v. Lynch (1st Cir. 2015).

Looking Forward

It is difficult to say when there will be an end to the Supreme Court’s exercise in constitutional avoidance on the issue. In Hernandez v. Mesa (2017), the Court declined to address the related issue of whether a Mexican national shot at the border of the United States and Mexico could claim Fourth Amendment rights because “it is sensitive and may have consequences that are far reaching.” Something to keep an eye on is congressional action on immigration and the potential impact on the status of aliens unlawfully residing in the United States as part of “the people.” However, the legislative landscape is even more fraught with uncertainty than the judicial landscape.

Further Reading:

Mathilda McGee-Tubb, Sometimes You’re in, Sometimes You’re out: Undocumented Immigrants and the Fifth Circuit’s Definition of “The People” in United States v. Portillo-Muñoz, 53 B.C.L. Rev. E. Supp. 75 (2012), http://lawdigitalcommons.bc.edu/bclr/vol53/iss6/7

Negotiate and Chill: How (and Whether) The Time for Plea Negotiations Can Be Excluded Under the Speedy Trial Act

Background

The Speedy Trial Act requires that any information or indictment charging a defendant with an offense must be filed within thirty days from an individual’s arrest or summons in connection with the crime. 18 U.S.§ 3161 (b).

This means that the government has thirty days from the time someone is arrested or summoned to charge that person with a crime.

However, certain periods of time—or delays—can be excluded from the Speedy Trial thirty days. For example, under 18 U.S. § 3161(h)(1), delays “resulting from other proceedings concerning the defendant” can be excluded. The statute gives a non-exhaustive list of eight delays that would count as “resulting from other proceedings”:

(A) determining “mental competency or physical capacity”

(B) trial related “to other charges against the defendant”

(C) interlocutory appeals

(D) pretrial motions

(E) the transfer of the case or removal of a defendant

(F) transportation of a defendant if not unreasonable

(G) a court consideration of a proposed plea agreement

(H) proceedings “under advisement by the court”

Delays “resulting from other proceedings concerning the defendant” are automatically excludable from the Speedy Trial thirty days.

But a delay can still be excluded under other provisions in § 3161, such as (hint) 18 U.S. § 3161(h)(7), under which a delay resulting from a continuance granted to serve “the ends of justice” can be excluded. To be excluded, the reasons the delay serves “the ends of justice” must be set in the record.

The Split

As you might imagine, the real fights happen in the “including, but not limited to” space created by 18 U.S. § 3161(h)(1). For example, circuits cannot come to an agreement on whether plea negotiations are automatically excludable as “resulting from other proceedings concerning the defendant.”

The Second, Fifth, Ninth, and Eleventh Circuits have held that delays resulting from plea negotiations are only excludable under § 3161(h)(7)—where the judge makes findings on the record that the delay serves “the ends of justice.”

These Circuits determined that automatic exclusion only works for delays related to official judicial proceedings because those enumerated examples in 18 U.S. § 3161(h)(1) all relate to official judicial proceedings. The Eleventh Circuit in United States v. Mathurin (2012) stated that:

“'[P]lea negotiations’ are informal discussions between the parties and are directly controlled by the parties, not the court.” (quoting United States v. Lucky (2d Cir. 2009)).

Thus, the court held, plea negotiations are only excludable if the judge makes findings on the record that the delay serves “the ends of justice.”

On the other hand, the Fourth, Seventh, Eighth, and Sixth Circuits have held that delays resulting from plea negotiations are automatically excluded as “resulting from other proceedings concerning the defendant.” The Sixth Circuit, in United States v. White (2017) held that:

“Although the plea-bargaining process is not expressly specified in § 3161(h)(1), the listed proceedings ‘are only examples of delay ‘resulting from other proceedings concerning the defendant’ and are not intended to be exclusive.”

Takeaways

This split is ripe for Supreme Court review and a cert petition is pending.

It is important for the split to be resolved because defendants should be treated the same across jurisdictions. Also, what good is the Speedy Trial Act if defendants are unsure when they will be charged or how the Speedy Trial Act applies to their situation?

Although a look into statutory construction could resolve this split, interesting policy perspectives are at play regarding plea bargaining incentives—how would automatic exclusion of plea negotiations influence the parties to come to an agreement, if at all?

Whether plea agreements are automatically excludable or not, though, it is certainly better that everyone know for sure.

One Meeting Under God?

Background

Prayer in the United States has been contentious ever since it was forbidden in schools. Although over half of Americans say they pray daily, the Supreme Court, in Engel v. Vitale, ruled that public school students cannot be required to begin their day with a nonsectarian prayer . Across the nation, numerous local, county, and state officials take their opening time allotted to them to pray. These prayers are often sectarian in nature.

The argument around prayer in these public institutions stems from the Establishment Clause of the United States Constitution which states, “Congress Shall make no law respecting an establishment of religion.” Circuit courts are split on how to interpret the clause as it relates to the often sectarian prayers that open meetings. The split boils down to whether lawmakers are able to lead prayer in a sectarian manner.

Town of Greece v. Galloway

In Town of Greece v. Galloway, the Supreme Court ruled that prayer that was nonsectarian in nature could open meetings or sectarian prayer led by guest ministers was constitutional. They cited that the first Congress had a paid chaplain open the meeting, highlighting the history of prayer opening meetings. Additionally, they stated that the prayer “lends gravity to public business” to remind the legislatures that they should work towards a “higher purpose” instead of quibbling amongst themselves. The argument that the prayer was coercive in nature was dismissed because “legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”

The Split: Does a lawmaker’s sectarian prayer violate the Establishment Clause of the US Constitution?

Fourth Circuit

The Fourth Circuit ruled that it does. In Rowan v. Lund County, a county in North Carolina had rotating prayer which the elected officials would lead in a clearly sectarian manner. No one other than the elected officials were permitted to offer the prayer. The court ruled that the practice caused the government to be aligned with Christianity with the risk that minority faith citizens would see it as a message of exclusion. They reasoned that although Town of Greece allowed for sectarian prayer from guests and volunteers, the “intimate government involvement” identified the government more strongly with that particular religion because the legislators were the only eligible people to deliver the prayer.

Additionally, the court looked at the audience of the prayers. While Town of Greece found that the intended target of the prayers were the legislators, the Fourth Circuit found that these prayers were intended for the audience and sought audience involvement rather than target specifically the legislators.

Because the audience was targeted and compelled to participate in the prayer, and because the prayers aligned the government with Christianity, the Fourth Circuit ruled that prayers given by lawmakers violated the Establishment Clause of the US Constitution.

Sixth Circuit

The Sixth Circuit took a different approach. In Bormuth v. County of Jackson, a county in Michigan held monthly meetings which were opened by the Commissioners with prayer. A member of the community did not follow Christianity, the religion of all Commissioners, and felt isolated and the Board of Commissioners would prejudice against him because of his beliefs. He voiced his concerns to the Board and was met with expressions of disgust and disagreement, confirming his fear. He filed suit later against the County for violating the Establishment Clause.

Much like the Fourth Circuit, the Sixth Circuit, looked at Town of Greece concerning whether the Commissioners’ prayer practice fell within the tradition of legislative prayer. Looking at the history of legislative prayer, the court rebuked the Fourth Circuit for not engaging the entire legislative prayer history as they had. They found that it was so commonplace that it has been “uninterrupted and continues in modern time.” They say that to strike down a prayer based on the deliverer is an absurd result because one prayer delivered by a minister would be permitted while the same prayer delivered by a lawmaker would be stricken down. To this end, the court holds that the prayers were well within the tradition of legislative prayer.

Next, the court looked to see if the content of the prayer was incompatible with the Establishment Clause. While disparaging and distinguishing the Fourth Circuit’s decision that the content of the prayer was against non-Christians as similar to those in Town of Greece, the court does not agree that one comment that was Christian in nature was enough to disparage nonbelievers. The court also considered that anyone may be elected to the board and lead a prayer in any way that they so choose once elected, adding to their argument that the content and make-up of the Board is irrelevant.

Although the court was unable to determine which coercion standard to apply from Town of Greece, they held that the prayers were not unconstitutionally coercive under either standard, so they did not need to resolve the issue.

Because the prayers were not coercive, not too-Christian in content, not affected by the Board’s composition, and not outside the scope of historic practices, the Sixth Circuit held that the County of Jackson did not violate the Establishment Clause of the Constitution.

Looking Forward

Prayer is a regular part of many town, county, and state meetings. These decisions will ultimately affect how those processes change depending on which jurisdiction the polity may find itself. To that end and due to the current Supreme Court’s enthusiasm with religious freedom cases, the Supreme Court is likely to grant cert. to these cases and settle whether the sectarian prayers are constitutional.