Is the Trump Travel Ban Still Moot? Why the Broader Issue of Executive Power is at Stake.

On December 8, 2015, then candidate Donald Trump called for what colloquially became known to some as a “Muslim ban.” Fast forward almost a full year later to January 27, 2017, when President Trump issued an executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order placed a temporary ban on immigration from seven countries that had been deemed to be terror prone by the Obama Administration. Almost immediately, an injunction was ordered barring the enforcement of the order.

In response, President Trump issued a “watered down” travel ban” on March 6, 2017. The new travel ban was less restrictive than the first ban, allowing immigration from Iraq, and containing an exemption for green card holders and people with permanent residency who were entering the U.S. from any of the other six countries. Despite the revision, the order was challenged in multiple lower courts, and eventually appeals were heard in both the Fourth and Ninth Circuits. Both courts ruled against allowing the “watered down” travel ban to go into effect.

The Supreme Court:

On June 26, 2017, the Supreme Court agreed to hear the appeals of those cases during its fall term. Most notably, they lifted the stays that the lower courts had placed on the travel ban, thereby allowing it to go into effect “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Though a minor legal debate over the scope of the phrase “bona fide relationship” ensued, the decision to lift the stay until the Court heard the case at least signaled to some that the Court was likely to side with President Trump’s assertion of executive power.

 The Split

Though both the Fourth Circuit Court of Appeals and the Ninth Circuit Court of Appeals ruled against President Trump’s travel ban, each court differed in its reasoning. The Fourth Circuit’s decision was based on the premise that President Trump’s rhetoric during the campaign was evidence of his “anti-Muslim sentiment.” The decision went on to say that such discrimination in the form of an executive order violated the Establishment Clause of the First Amendment.

The Ninth Circuit’s decision to stay the ban was based on statutory grounds. They held that President Trump’s Executive Order violated the Immigration and Nationality Act (INA). The INA requires that a President provide reasoning for his or her decision to restrict immigration from certain countries, and the Ninth Circuit held that President Trump failed to provide such support for his order.

Looking Forward and why the Circuit Split Matters:

Recently, the Supreme Court removed the appeals of both of the above cases from its oral arguments calendar for the fall over the question of whether the issue was still moot. In light of both of the lower court decisions, President Trump issued a third travel ban, which added more countries to the list that bans entry and provided a much stronger rationale for the ban after citing an inter-agency review. Though there will likely still be grounds to challenge the new order, it is entirely possible that the Court will not find those new challenges persuasive and thus leave its decision to lift the stay in place.

If this were to happen, it would set up an interesting legal question over what to do with the lower court decisions. The Trump Administration will likely want the lower court decisions vacated because they restrict his authority. In particular, since the Fourth Circuit’s decision was based on constitutional grounds, it is the decision that has a far greater impact on the scope of executive power in the United States. Therefore, what the justices decide to do with the mootness issue and consequently the lower court decisions will play an important role in understanding how the justices view the scope of Trump’s executive power.

Waive after Waive: Can the Government Waive a Challenge to Fourth Amendment Standing?

Background: Not All Standing is Done on the Same Legs

The most familiar idea of “standing” is based in Article III and is about whether someone can participate in the case at all. However, the term “standing” has attached itself to a narrower issue within Fourth Amendment law, despite then-Justice Rehnquist’s misgivings in Rakas v. Illinois.

Fourth Amendment standing is shorthand for the requirement that in a motion to suppress evidence from an unconstitutional search and seizure, the defendant must show that the search violated the defendant’s own personal rights of privacy, liberty, or possession. A defendant lacks Fourth Amendment standing if they attempt to suppress evidence based on the violation of someone else’s rights, for example, when a search of a car one does not own uncovers a gun that one, likewise, cannot lay claim to—the move not permitted in Rakas.

It is the responsibility of the government to bring a challenge to a defendant’s Fourth Amendment standing, but what happens when it does not do so at the district level? Is it waived in any future proceedings?

The Split

Two circuits have held that the government does not waive Fourth Amendment standing issues if it fails to raise them in district court: the First Circuit and the Eighth Circuit. The Eighth Circuit case on point, United States v. Rodriguez-Arreola, clearly states that the government does not waive a lack of Fourth Amendment standing based on a previous case pertaining to Article III standing, surely causing Chief Justice Rehnquist to spin uncontrollably in his grave:

The government cannot waive Rodriguez’s lack of standing, and therefore any argument based on waiver must fail…(“[I]t is elementary that standing relates to the justiciability of a case and cannot be waived by the parties.”).

On the other hand, seven circuits hold that the government does in fact waive Fourth Amendment standing challenges if it fails to raise them in district court, though some circuits are more lenient than others. This majority position is rooted in the idea that just because the word “standing” is involved, it does not implicate Article III jurisdictional issues—it views Fourth Amendment standing as simply shorthand for the substance of the Fourth Amendment.

Most of these circuits (namely, the Third, Fifth, Seventh, Tenth, and Eleventh) hold that the government may not raise an issue of Fourth Amendment standing for the first time on appeal. If the government fails to challenge Fourth Amendment standing on the district level, it amounts to a complete concession on the issue by the government.

The Ninth Circuit, in United States v. Paopao, gives the government some wiggle room, allowing challenges to Fourth Amendment standing to be raised for the first time on appeal. It makes clear in United States v. Ewing, however, that failure to place a challenge to Fourth Amendment standing in the appellate brief only to bring it up at oral argument is not a valid move, and amounts to a waiver of the challenge.

The latest circuit to join the waive-friendly bunch is the Sixth. United States v. Noble leans toward the Ninth Circuit’s holding, though it is not so lenient. The Sixth Circuit first criticizes the approach of the First and Eighth Circuits, noting:

“Fourth Amendment standing is akin to an element of a claim and does not sound in Article III. The government, like other litigants, therefore, can forfeit or waive an argument that defendants lack Fourth Amendment standing.”

Later, the Sixth Circuit lays out its own approach to waivability:

“[W]e would allow the government to raise an objection to a defendant’s Fourth Amendment standing for the first time on appeal, provided that the government can show that the defendant plainly lacked standing and that our failure to recognize it would “seriously affect…the fairness, integrity or public reputation of judicial proceedings.” …However, if the government fails to raise the issue in its opening brief on appeal, then the objection is waived.”

Looking Forward

While the Supreme Court has released opinions concerning Fourth Amendment standing, it has not explicitly stated whether the government waives the issue if it fails to bring it up in district court. Considering the precedent of Rakas, if the right mix of criminal procedures twists and turns its way up to the highest Court, it would not be unreasonable to wager on the path chosen by most circuits today. For what it’s worth, however, this blogger would like to see a reexamination of the general idea that a defendant cannot acquire Fourth Amendment standing without an interest in the property searched, especially when that unconstitutional search specifically targeted that defendant.

Injury In Hack?

In 2016, the number of American consumers impacted by identity theft rose to 15.4 million from 13.1 million in 2015. Eighty-five percent of identity theft victims do not realize their identity has been stolen for a year or longer; and, according to a study completed in 2006, only 0.14% of identity thieves are ever caught.

Unfortunately for these millions of Americans, circuit courts are split over whether threat of future identity theft satisfies the “imminent injury-in-fact” requirement for Article III standing. Article III standing requires: (1) concrete, imminent injury-in-fact; (2) proximate causation; and (3) redressability. The split concerns the meaning of “imminent” within the injury-in-fact requirement.

Clapper v. Amnesty International

The primary case cited by courts on both sides of the issue is Clapper v. Amnesty International. In Clapper, the Supreme Court ruled that an “objectively reasonable likelihood” a future injury will be suffered by the plaintiff is insufficient for Article III standing, and that costs incurred to mitigate speculative harm do not satisfy the injury-in-fact requirement for standing. However, the court stopped short of ruling plaintiffs must prove that the harm will certainly occur. In some cases, “substantial risk” the injury will occur is sufficient.

The Splits

Does increased risk of identity theft qualify as a “substantial risk,” satisfying the imminent injury-in-fact requirement for Article III standing?

To Stand….

The Sixth, Seventh, and Ninth Circuits have held increased threat of identity theft qualifies as an imminent injury-in-fact. Moreover, these courts have held that costs incurred in response to this imminent injury qualify as a present injury-in-fact.

The Sixth and Seventh Circuits rest their decisions on a broad reading of Clapper. The Ninth Circuit decision was made prior to the Supreme Court’s ruling. These courts consider the increased threat to identity theft to satisfy the “substantial risk” standard for injury-in-fact.

In addition to a broad interpretation of Clapper, these courts distinguish the increased threat of identity fraud from the plaintiffs’ claims in Clapper. Primarily, the plaintiffs know their information has been stolen. In contrast, the plaintiffs in Clapper only suspected their conversations were being record. Costs are incurred from a breach of personal information in both cases, but, these courts distinguish the costs incurred to prevent identity theft from the costs incurred by the Clapper plaintiffs. Because the harm in Clapper was purely speculative, the costs incurred therefrom were merely to mitigate tenuous harm. However, if the increased threat of identity theft is not a speculative harm, costs incurred to mitigate should qualify as present injury.

From a public policy perspective, these courts feel it’s unfair to force plaintiffs to wait until their identities are stolen to sue.

Or Not to Stand….

The Third and Fourth Circuits have held increased threat of identity theft does not qualify as an imminent injury-in-fact. Additionally, these courts hold that costs incurred in response to a breach of data information is mitigation of a speculative harm and, under Clapper, not considered sufficient present injury-in-fact.

Both courts consider the increased threat of identity theft to be merely speculative until actual misuse of the personal information can be shown. The Fourth Circuit rests its decision on a narrow reading of Clapper. The Fourth Circuit considers the costs incurred by the identity-theft plaintiffs to be analogous to the costs incurred by the plaintiffs in Clapper, and therefore, determines that the costs are insufficient to satisfy the injury-in-fact requirement. Both courts feel that the plaintiffs’ claims require too many steps in the causal chain to qualify as “imminent.”

From a public policy perspective, these courts consider the slippery-slope of allowing some plaintiffs to sue on hypothetical future injuries, regardless of the likelihood that injury will occur.


Considering the alarming number of Americans affected by identity theft, this split should be resolved to inform citizens as to their legal rights following a data breach. Since few identity thieves are ever caught, litigating against those who are responsible for data breaches may be the only remedy available to those who identities are stolen. Therefore, clarity as to Article III standing must be resolved. On a broader scale, the underlying conflict in interpretation of the “substantial risk” standard following Clapper should also be resolved as this conflicting interpretations will only lead to more splits of this nature.

The Inferiority Complex: Hiring v. Appointing at the SEC


They hold hearings. They issue subpoenas. They adjudicate. In the 2016 fiscal year, they ordered $12.4 million in disgorgement and $14.5 million in civil penalties. They are the U.S. Securities and Exchange Commission’s (SEC) administrative law judges.

Administrative proceedings are commonly used by agencies to adjudicate claims or enforcement actions quicker than if the agency filed in federal court. Cases are heard before administrative law judges, or ALJs, instead of Article III judges on the federal bench. While the SEC faces numerous challenges to the partiality of its ALJs and its rules of practice, there is a preliminary challenge—are the SEC’s ALJs constitutional at all?

Hiring v. Appointing

Currently, the SEC’s ALJs are selected by the current Chief ALJ of the SEC, subject to the ALJ hiring process set forth by the Office of Personnel Management. Under the view that ALJs are employees of the SEC, this approach is perfectly fine. However, if ALJs are deemed “inferior officers,” then this selection process is unconstitutional.

The issue derives from the Appointment Clause of the Constitution. The Appointment Clause gives the President the power to appoint “primary officers,” subject to confirmation by the Senate. The clause gives Congress the power to vest appointment power for inferior officers in the President, judicial courts, or heads of departments. Thus far, there is no definitive test to determine what positions are inferior officers as opposed to mere employees.

The Split

In Bandimere v. SEC, the Tenth Circuit determined that SEC ALJS are inferior officers under the Appointment Clause. The court relied upon three facts from Freytag v. Commissioner of Internal Revenue, where the Supreme Court determined that the Tax Court’s special trial judges were inferior officers. The court wrote in Bandimere:

Those three characteristics exist here: (1) the position of the SEC ALJ was “established by Law”; (2) “the duties, salary, and means of appointment . . . are specified by statute”; and (3) SEC ALJs “exercise significant discretion” in “carrying out important functions.”

However, the D.C. Circuit reached the opposite result in Raymond J. Lucia Companies v. SEC. Here, the court determined that ALJs were employees of the SEC by primarily focusing on the fact that the ALJs’ decisions were subject to final review by the SEC Commissioners (who are primary officers).

Put otherwise, the Commission’s ALJs neither have been delegated sovereign authority to act independently of the Commission nor, by other means established by Congress, do they have the power to bind third parties, or the government itself, for public benefit.

Looking Forward

So where does this leave the law? Clearly, one circuit on its own cannot change the structure of a federal agency. If the Supreme Court concludes that the SEC’s ALJs are inferior employees, Congress would need to take swift action to create an appropriate avenue to appoint ALJs to avoid overwhelming the federal docket with cases that would have been resolved in administrative proceedings.

Who Let the Dogs Out? Sniffing Out the Fourth Amendment


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.

Professional Speech and the First Amendment

In an economy that is dominated by service professionals, one would logically assume that professionals (e.g. doctors, lawyers, psychiatrists, etc.) are vested with free speech rights under the First Amendment. If political speech, speech about public controversies, and the right to not salute the flag are protected under the First Amendment, it would seem natural that professionals would have this same protection when they give prospective clients and patients certain recommendations and advice. However, SCOTUS has not directly addressed this specific issue, resulting in circuit courts being split on the best way to handle professional speech and the protection it should be given under the First Amendment.

Hines v. Alldredge

In Hines v. Alldredge (2015), the Fifth Circuit upheld a Texas licensing requirement against a First Amendment challenge. In this case, Hines, a retired veterinarian, had given advice via phone and email to specific pet owners without physically examining the animals. The state licensing requirement prohibited veterinarians from providing veterinary care unless they had physically examined the animal. Hines’ communications with specific pet owners were considered “care,” and the state fined him and suspended his license. Hines alleged that this was a violation of his free speech rights.

The Fifth Circuit upheld the licensing requirement as a constitutionally permissible restriction, applying a rational basis standard of review. Blurring the lines between conduct and speech, the court found that the restriction did not fall within the scope of the First Amendment, but instead was comfortably within the “broad power [of states] to establish standards for licensing practitioners and regulating the practice of professions.” Id. The state, according to the Fifth Circuit could restrict professional speech virtually without limit.

Hines appealed to the Supreme Court. Ultimately, the Supreme Court declined to hear the case, refusing to clarify the constitutional mess that has split the circuit courts, and leaving the following question open to the circuits’ contradictory interpretations: Does the licensing power of the states outweigh a professional’s freedom of speech?

The Split

Speech or Conduct?

The source of confusion partly stems from courts’ inability to determine whether the activity and practice of professionals should be considered “speech” or “conduct”. Different courts have upheld similar restrictions on professionals both as a regulation of conduct and also as a permissible regulation of speech.

The Third Circuit in King v. Governor of N.J. (2014) upheld a regulation prohibiting mental health providers from engaging in sexual orientation change efforts as a permissible regulation of speech, explaining, “Verbal or written communications, even those that function as vehicles for delivering professional services, are ‘speech’ for purposes of the First Amendment.” Id. The court applied a lesser form of scrutiny, opting for intermediate scrutiny instead of strict, but nonetheless deemed the treatment speech that implicates the First Amendment. “Simply put, speech is speech, and it must be analyzed as such for purposes of the First Amendment,” the court held. Id.

The Ninth Circuit, on the other hand, in Pickup v. Brown (2013) upheld a very similar regulation on entirely different grounds. They found the treatment to be conduct, and regulation of conduct is outside the scope of the First Amendment, even though it may have an incidental effect on speech. The court said, “Pursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful … [T]he fact that speech may be used to carry out those therapies does not turn the regulation of conduct into a regulation of speech.” Id.

What Standard?

The next step is to determine the appropriate standard of review. Courts again disagree on the standard.

In very similar cases about regulation of fortune tellers, the Eighth Circuit and Fourth Circuit arrived at entirely different conclusions. Both agreed that the fortunetellers’ speech was not commercial speech (which would entitle it to intermediate scrutiny). However, the Eighth Circuit in Argello v. City of Lincoln (1998) subsequently found it was entitled to the full protection of the First Amendment. The Fourth Circuit, on the other hand, in Moore-King v. County of Chesterfield (2013) found that the regulation raised no First Amendment problem at all.

On the contrary, the Third Circuit has applied intermediate scrutiny. In King v. Governor of N.J. (2014), the Court applied intermediate scrutiny, emphasizing the similarities between professional speech and commercial speech, in direct contrast to the Eighth and Fourth Circuits. The Third Circuit explained the use of intermediate scrutiny in King:

We believe that commercial and professional speech share important qualities and, thus, that intermediate scrutiny is the appropriate standard of review for prohibitions aimed at either category. Like commercial speech, professional speech is valuable to listeners and, by extension, to society as a whole because of the “informational function” it serves…. [P]rofessionals have access to a body of specialized knowledge to which laypersons have little or no exposure. Although this information may reach non-professionals through other means, such as journal articles or public speeches, it will often be communicated to them directly by a licensed professional during the course of a professional relationship. Thus, professional speech, like commercial speech, serves as an important channel for the communication of information that might otherwise never reach the public. Id.

In the case of the Fifth Circuit, the court has applied rational basis review in which the court asks whether the governmental regulation of the professional expression is rationally related to a legitimate government interest. Accordingly, nearly all licensing requirements are upheld under rational basis review, regardless of any speech implications.

The Ninth Circuit, in Pickup v. Brown (2013) laid out a system in which it would sometimes apply the full-strength strict scrutiny of the First Amendment and at other times only apply rational basis review. The system is far from clear, but the court explains:

At one end of the continuum, where a professional is engaged in a public dialogue, First Amendment protection is at its greatest. Thus, for example, a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment—just as any person is—even though the state has the power to regulate medicine. … At the midpoint of the continuum, within the confines of a professional relationship, First Amendment protection of a professional’s speech is somewhat diminished. … At the other end of the continuum, and where we conclude that SB 1172 lands, is the regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech. Id.

The Circuits are divided on whether the First Amendment should apply fully all the time, not at all, or only sometimes. Confusion exists both across the circuits and within circuits themselves. For instance, the Fourth Circuit upheld restrictions on fortunetellers’ speech, but struck down an abridgement of abortion providers’ free expression. Conversely, the Eighth Circuit struck down restrictions on fortuneteller’s speech, but upheld a regulation of abortion doctor’s speech. On different matters, the Fifth Circuit upheld laws restricting tour guide’s expression while the D.C. Circuit struck down similar tour guide regulations.

Looking Forward

Lawyers, doctors, and the like constitute a significant part of our society—much more now than ever before. They provide valuable services to society, and the Supreme Court, by ducking cases involving these matters and avoiding the chance to provide much needed clarity to lower courts, is adding to the confusion surrounding professional communications. Eventually, the high court will have to address whether the activities of professionals should be considered conduct or speech. If it is deemed to be speech, the Court must then determine the appropriate level of scrutiny.

Pandora’s Inbox: email and “electronic storage” under the Stored Communications Act

When Congress passed the Stored Communications Act (“SCA”) in 1986, email systems were markedly different. Email systems from the 1970s closely mirrored what we know as instant messaging; both the sender and recipient had to be online to send and receive messages. It was only in the early ‘90s when the current ‘store and forward’ technique became utilized.

Moreover, web-based email (i.e., Gmail and Hotmail) didn’t exist. Instead, email was handled on an intranet, usually within a business, and users would download email messages from a server. The server would typically not backup the message (disk storage space was a luxury back then), and the only copy existed on the user’s computer. Today, we receive emails on our computers, phones, and watches (often simultaneously), and rely on that server to keep those emails in perpetuity.

“Electronic Storage”

The SCA prohibits unauthorized access to email, among other communications, but only if the communication is defined as being in “electronic storage.” See 18 U.S.C. § 2701. The SCA defined “electronic storage” as follows:

(17) “electronic storage” means—

(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and 

(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication;

18 U.S.C. § 2510(17).

The act also specifies the legal process the government must use to compel disclosure of messages in “electronic storage.” See 18 U.S.C. § 2703. When it was passed, Congress presumed that any emails left on an email server longer than 180 days were “abandoned,” and thus could be obtained by law enforcement without requiring a warrant (or giving notice to the user).

Courts have agreed that unopened emails residing on a server are protected by SCA; the fiction is that an unopened email is considered to be in “temporary, intermediate storage” pending delivery. See Cruz Lopez v. Pena (N.D. Tex. Mar. 5, 2013) (“§ 2510(17) has been clearly established to protect unopened emails.”); Lazette v. Kulmatycki, (N.D. Ohio 2013) (“[P]laintiff cannot prevail to the extent that she seeks to recover based on a claim that [defendant] violated the SCA when he accessed e-mails which she had opened but not deleted.”).

Emails Stored Online & Downloaded to a Personal Device 

In Theofel v. Farey-Jones, the Ninth Circuit held that emails received, read, and left on a server fit within the Act’s definition of being “for purposes of backup protection”:

 [a]n obvious purpose for storing a message on an [internet service provider’s (“ISP”)] server after delivery [from the server to the user] is to provide a second copy of the message in the event that the user needs to download it again–if, for example, the message is accidentally erased from the user’s own computer.

At first glance, the definition seems quite broad, allowing for any email to be protected. Parsing through the opinion (which offers little in information on email configuration) it seems clear that Chief Justice Kozinski relied upon the assumption that the users downloaded the emails to their personal computers, noting that if “remote computing service might be the only place a user stores his messages; in that case, the messages are not stored for backup purposes.” Id. at 1077. Other courts have aligned with the similar view concerning email both downloaded and on a server. See, e.g., Shefts v. Petrakis, (C.D. Ill. Nov. 29, 2011) (finding email copies were protected by SCA when plaintiff downloaded them to Outlook); Cornerstone Consultants Inc. v. Prod. Input Solutions LLC, (N.D. Iowa 2011) (same).

Noted scholar Orin Kerr believes the Ninth Circuit incorrectly interpreted the provision in the context of the user, and argues that “the ‘backup’ language is about backups created by the ISP for the ISP’s purposes.” Kerr also criticized Kozinski’s rationale in an earlier paper, noting that “the apparent test is whether the user or employees of the service provider have reason to believe that they may need to access an additional copy of the file in the future.”

Users v. Servers

In Jennings v. Jennings, the Supreme Court of South Carolina granted cert on a case involving a wife who figured out her husband’s Yahoo! email password, and accessed his account (she was looking for evidence of an affair). When the husband sued under the SCA, the court decided to take a crack at interpreting the statute. Unsurprisingly, the court returned with a 2-2-1 plurality decision:

• Justice Hearn, joined by Justice Kittredge— based on the meaning of the word “backup” according to a Merriam-Webster Dictionary, a substitute copy has to exist for the email to be a “backup.” Since the only copy of the email was read and stored on Yahoo!’s servers, it follows that the emails are not protected under the SCA.

• Chief Justice Toal, joined by Justice Beatty—the justices believed section (A) and (B) were conjunctive. Unread email on Yahoo!’s server is in “transmission” and “backup” until the user reads them, thus protected by the SCA as “electronic storage.” However, once an email is read, it has reached its destination, and is no longer stored under the definition of the SCA.

• Justice Pleicones—while mostly agreeing with Chief Justice Toal, Pleicones believed that the statute was disjunctive, but still failed to find the email satisfied either provision.

Rejecting the reasoning in Theofel, these three decisions all took the approach that the SCA protects emails from the perspective of Yahoo!, not the user. They also assumed the husband never downloaded his Yahoo! mail onto a computer or other device.

Received v. Sent Emails

The Eighth Circuit provided a proper circuit split in Anzaldua v. Northeast Ambulance & Fire Protection District. Here, A jilted ex-girlfriend logged on to the plaintiff’s Gmail account and forwarded two emails to the plaintiff’s superior. The plaintiff was later fired due to “inflammatory” remarks found in his emails. The issue on appeal was whether the two emails (one was in the sent folder, the other in the drafts) were considered protected under SCA. The court held neither email were protected.

The argument centered on whether the user sent or received the email. One of emails forwarded was sent earlier to another person. The second email was still in the draft folder. According to the Eighth Circuit, since neither email was received, neither are within the ambit of the SPA. In rejecting Theofel, it noted “[i]f Theofel has any application here, it would be to protect a copy of the email stored with Holland’s email service, not Anzaldua’s.”

Concerning the sent email, the Eighth Circuit argued that the plaintiff had no reason to access a backup copy of the email because the message had been successfully delivered, “[w]e hold that once Anzaldua successfully sent the email to Holland, as he alleged he did, the copy Gmail retained on its server as a sent message did not perform a backup function.”

As for the email in the draft folder, “because the email had not been sent, its storage on the Gmail server was not ‘temporary, intermediate,’ and ‘incidental to the electronic transmission thereof.’”

Again, the court made no mention if the plaintiff had downloaded those emails onto a separate device. Rather, it mentions n passing that “web-based email users may still download emails to their computers through email client programs, which complicates the picture.”

Looking Forward has proved this helpful table as to what type of law enforcement access is required to read your email:

EPIC Email Guide

You have to wonder how we got here. It would seem judicial opinion goes backwards, creating splits along the way, while technology continues to forge on. It is likely necessary to jettison this act and replace it with something that will properly suit modern technology.

In a somewhat fitting analogy, judicial review and legislative amendments of the SCA is akin to what is known in software development as the “Code and Fix” methodology. Here, a developer writes code and then quickly releases the application without testing it. When a user reports a bug, the developer writes some code to patch it up, then releases it again—this cycle continues, the software becomes bloated, and every subsequent bug takes longer to fix. Suffice it say, the methodology is heavily frowned upon. Sometimes, it’s simply prudent to scrap something and start fresh.


It Seemed like the Reasonable Approach at the Time: A Circuit Split on the Meaning of “Reasonable Belief” in Search and Seizure

How Many Warrants?

Two major Supreme Court decisions are at play here concerning the constitutionality of officers entering residences to execute arrest warrants when residency of the suspect is uncertain.

In the aftermath of the first case, Payton v. New York (S.Ct. 1980), the Courts of Appeals developed a two-prong test to assess the constitutionality of an officer’s entry to execute an arrest warrant: the officer must have a “reasonable belief” that (1) the “arrestee lives in the residence, and that (2) the “arrestee is within the residence.” United States v. Gay (10th Cir. 2001).

One year after Payton, the Supreme Court held that officers may not enter the residence of a third party to execute an arrest warrant unless they first obtain a search warrant based on the belief that the suspect “might be a guest there.” Steagald v. United States (S.Ct. 1981). This created a stricter standard for entering officers if they believe only that the suspect is a common “guest” in the residence rather than a resident or immediately within the residence. Thus, officers would much prefer that the arrestee is a resident and within the residence as opposed to being simply a guest.  The determination of whether officers need only an arrest warrant to enter versus an arrest warrant and a search warrant to enter a residence is entirely dependent on an officer’s “reasonable belief.”

The circuit courts have since been faced with discerning what constitutes a “reasonable belief,” thus determining when both an arrest and a search warrant are necessary for constitutional entry into third party residences as opposed to only an arrest warrant.

Circuit Split

The Third Circuit is the most recent voice to enter the interpretive dispute surrounding the standard of “reasonable belief.” United States v. Vasquez-Algarin (3rd Cir. 2016).

Joining the Fifth, Sixth, Seventh, and Ninth Circuits, the Third Circuit held that reasonable belief should be viewed as the functional equivalent of probable cause, and thus the same standard.  The practical effect of requiring a probable cause standard is that it makes it more difficult to enter only with an arrest warrant. The Third Circuit had two primary reasons for their decision:

  • First, the Supreme Court’s use of the phrase “reason to believe,” when considered in the context of Payton and more generally the Court’s Fourth Amendment jurisprudence, supports a probable cause standard.
  • Second, and more fundamentally, requiring that law enforcement officers have probable cause to believe their suspect resides at and is present within the dwelling before making a forced entry is the only conclusion commensurate with the constitutional protections the Supreme Court has accorded to the home.

Some of Vasquez-Algarin’s reasoning echoes that of the Sixth Circuit, both noting that on several occasions the Supreme Court has used the same “reason to believe” language from Payton “as a stand-in for ‘probable cause.’” (3d Cir. 2016).

The DC Circuit, First, Second, and Tenth Circuits have held that the standard for reasonable belief falls short of the standard for probable cause belief. The DC Circuit reasons that it is “more likely . . . that the Supreme Court in Payton used a phrase other than ‘probable cause’ because it meant something other than ‘probable cause.’” (2005). The Tenth Circuit equates probable cause requirements with calls for “actual knowledge of the suspect’s true residence.” (1999). It believes extending probable cause as the standard for a “reasonable basis” for determining that an individual “lived in the residence and . . . could be found within at the time of entry,” would “effectively make Payton a dead letter.” Valdez v. McPheters (10th Cir. 1999).

The Third Circuit claims that the Supreme Court’s choice of stand-in language undermines the DC Circuit’s conclusion that Payton’s ‘reason to believe’ language should be interpreted loosely. The Third Circuit explains that the Supreme Court’s use of “reason to believe” as a stand-in for “probably cause” indicates the Court’s belief that the standard for the two is the same.

Looking Forward

The incongruence in requirements for only arrest warrants versus arrest and search warrants creates such a fundamental constitutional discrepancy that the Supreme Court should address it soon.

For the last 36 years, courts have been left to grapple with the interpretation of the Court’s language in Payton, and the circuits seem to have pretty evenly split on the meaning of a “reasonable belief.” Until the Court addresses the standard for reasonable belief varying degrees of scrutiny will continue to be imposed on officers, and the degree of protection of an individual’s right to be secure in their home will remain grey.