At a Crossroads: State Planning Commission and Veterans’ Organizations Petition for Supreme Court Review of Fourth Circuit Decision Finding Public Cross Memorializing War Dead Violates the Establishment Clause

The American Legion, et al. v. American Humanist  Association, et al., No. 17-1717; Maryland-National Capital Park and Planning Commission v. American Humanist Association, et al., No. 18-18.  

Responses to the petitions for certiorari  are expected to be submitted during the first week of August.

What is in issue? A forty foot tall cross memorializing World War I veterans stands at the intersection of U.S. Route 1 and Maryland Route 50 in Bladensburg, Maryland.  Called the “Bladensburg Cross,” the monument to fallen soldiers was completed in 1925, has been maintained by the Maryland Historic Trust, and was added to the National Register of Historic Places in 2015.   

Secular humanists lodged Establishment Clause objections to the monument in 2012. The United States Court of Appeals for the Fourth Circuit agreed with their position that the monument’s presence is an unconstitutional endorsement of religion.  

The Fourth Circuit determined that the 90 year presence of the “Peace Cross” could not survive the test announced in Lemon v. Kurtzman,  403 U.S. 602 (1971) because the presence of the Latin cross, symbolizing Christianity, has the primary effect of endorsing Christianity to the exclusion of all other religions.  

The request for Supreme Court review.  Defendant the Maryland-National Capital Parks and Planning Commission and intervenors the American Legion and affiliated organizations seek United States Supreme Court review, urging rejection of the Fourth Circuit’s view, noting marked disagreement among the circuit courts of appeals on the constitutionality of public displays of religious symbols, and inviting the Court to revisit and to realign an unwieldy Establishment Clause jurisprudence.

The state agency’s petition for certiorari. The Parks and Planning Commission argues that the cross has a predominantly secular purpose and conveys a predominantly secular message, rendering Establishment Clause examination unnecessary, particularly where the Supreme Court has held that the constitution does not require eradication of all public symbols of religion.  

The state petitioner notes that some federal circuit courts of appeal have essentially prohibited, as presumptively unconstitutional, the use of memorial crosses, a position which threatens the continued vitality of war memorials throughout the country.  Other circuits find the use of memorial crosses unobjectionable as nonsectarian historic commemoratives.

The Parks and Planning Commission argues that the nearly century old cross serves as a secular symbol of commemoration and as such does not violate existing Establishment Clause principles, which permit the use of religious symbols to convey nonsectarian messages.  The purpose and setting of the cross does not suggest the sacred.

The veterans’ organizations petition for certiorari.  Petitioners the American Legion and affiliates ask the Court to consider whether the Bladensburg memorial is unconstitutional because it is shaped like a cross, whether precedental tests should govern passive public displays of religious symbolism and, if Lemon applies, whether the state’s maintenance of the monument is an excessive entanglement with religion.

The Fourth Circuit’s conclusion, the veterans’ organizations suggest, offends the “benevolent neutrality” which the Court has found appropriate in Establishment Clause review.  Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970). The wholesale and sweeping condemnation of all religious symbols without regard to secular purposes evinces hostility to religion and threatens memorials such as Arlington National Cemetery.

Petitioners stress that it has been observed that Establishment Clause jurisprudence is currently “a shambles,” that not only is the appropriate test for review of pf passive displays in disarray, but also the courts are in disagreement about construction of the “reasonable observer” test used in evaluating the impact of religious iconography or language.  Additionally, there is disagreement concerning whether any state maintenance of memorials incorporating religious symbols offends the Establishment Clause prohibition of state entanglement in religion.

The veterans’ organizations argue that the presence of the Bladensburg memorial cross is constitutional no matter what test is applied.  The veterans submit that the Court has found the Lemon test inapt when applied to passive monuments.  The Court has found, however, that historic meaning may permit religious acknowledgement without violating the Establishment Clause.  Thus the state of Texas may display the Ten Commandments on the state capitol grounds amidst other historic messages without offending the Establishment Clause. Van Orden v. Perry, 545 U.S. 677 (2005).

Even if Lemon were applicable, the American Legion groups argue, the Bladensburg Cross would pass its three-prong test.  The cross has the secular purpose of remembering the war dead; the cross by itself does not advance or inhibit religion; the cross does not foster government entanglement with religion even if some public funds are used for maintenance.  Nothing in the monument’s presence suggests that any religion is endorsed or that anyone not believing is not part of the community or that any beliefs at all are relevant to community participation. The constitutional prohibition of endorsement does not mean that all must be spared discomfort if they observe symbols they do not accept. The question is how a reasonable and informed observer would perceive a display.

The veterans submit that minor state expenditures — $117,000 over six decades — to maintain the memorial and its grounds cannot be seen as the “comprehensive, discriminatory, and continuing” state involvement necessary to constitute entanglement. Mueller v. Allen, 463 U.S. 388, 403 (1983).

The presence of the monument is acceptable within more recent Establishment Clause decisions, the veterans’ organizations advocate, as the Court has looked to historic traditions for guidance in determining whether a practice is constitutionally out of bounds.  Thus the tradition of opening legislative sessions with prayers that do not proselytize, denigrate or carry an improper government purpose is constitutionally innocuous. Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).  

The veterans’ organizations urge the Court to validate the historic use of the cross to commemorate the fallen and ask that the Court find such measures presumptively constitution.  The veterans caution against the improper interpretation of the Lemon” effect test, for so doing would erroneously attribute religious meaning where a secular historical purpose predominates.

Maryland-National Capital Park and Planning Commission v. American Humanist Association Petition for Certiorari

American Legion v. American Humanist Ass’n Petition for Certiorari

American Humanist Ass’n v. Maryland-National Capital Parks and Planning 4th Circuit Opinion


Benched! High School Coach, Terminated for Silent Post-Game Prayer on Field, Seeks Supreme Court Review of School Policy Characterizing All Expressive Conduct Observable by Students to be School Speech Unprotected by the First Amendment

Kennedy v. Bremerton School District, No. 18-12 (S. Ct.)

High School football coach Joseph Kennedy was fired because he paused to kneel on the school playing field in silent prayer following games. He was observable by all. At times students  sought to join him, which he neither encouraged nor discouraged, nor did he proselytize.

Kennedy was directed not to pray as he had been doing, as the school saw it in violation of a policy making all staff behavior school speech unprotected by the first amendment, He sought an exception because of his sincerely held belief that offering prayer was appropriate.  Kennedy received an unfavorable performance review and was dismissed.

Kennedy’s counsel seek United States Supreme Court review, arguing that the First Amendment forbids the Bremerton School District’s policy that deems all “demonstrable communications” observable by students to be constitutionally unprotected school speech.   

Counsel submit that the Supreme Court has long recognized that neither student or staff are stripped of First Amendment rights at the schoolhouse door.  Although the speech protections of public employees are subject to some limitations, no one has seriously suggested that a public employee is anyone other than a citizen. Petitioner Kennedy observes that the school district policy brings all expression under the umbrella of “school speech,” causing public school employees to lose all First Amendment protections while engaged in an ever-expanding array of activities characterized as work. Kennedy argues that a policy which removes all First Amendment expressive protections for as long as a school employee is at work, as defined by the employer, cannot be constitutionally sound.

The response to Kennedy’s petition for certiorari is due on August 1.  It is likely that amicus briefs will be submitted before the petition for certiorari is calendared for conference review.

2018 06 25 121651278_Petition for Writ of Certiorari – Kennedy v. Bremerton School District

Yelp! Would Like to Think That it’s Immune to This (Court Ordered Take-Down) Stuff. A Divided California Supreme Court (Mostly) Agrees

Hassell v. Bird, No. S235968 (Cal) July 2, 2018.

In the infancy of mass online culture, Congress thought the expansion of online communications and its economy would be fostered by insulating internet service providers from liability when those providers do not act as content providers. The Communications Decency Act of 1996, Section 230, offered that assurance. There is a certain amount of intuitive sense in offering such immunity, particularly if internet service providers are seen as forms of utilities, like telephone companies, which are not ordinarily responsible for things said over their lines or airwaves.

No matter whether this corporate immunity is seen as salutary or not, what is clear is that not all situations could be foreseen or addressed by Section 230 more than twenty years ago.  Hassell v. Bird highlights the struggles between private online users and the corporations which control access to online postings.

Ava Bird was not pleased with the representation of the Hassell Law Group, and let the world know by publishing a review on Yelp!!, on online site on which businesses advertises and readers post their views of the business’s success (or failures).  Hassell successfully pursued an action for defamation against Bird, who could not be found at the time judgment was entered against her. Hassell sought and obtained a mandatory injunction directing Yelp to take down Bird’s defamatory review.

Yelp! refused, citing immunity under Section 230.  The Supreme Court of California today agreed with Yelp!’s position, finding that through the take-down orders, the lower courts had erred in casting Yelp! as speaker and publisher of the content, a result neither supported by the facts nor consistent with Section 230.  The lower courts found it unobjectionable to ask Yelp! to aid in executing an order of take-down to aid in effectuating Hassell’s judgment, and observed that the principles of immunity would not be abrogated by doing so, for no liability had been imposed on Yelp!.

The majority of  the Supreme Court of California was not pleased with Hassell’s determination not to join Yelp! as a party defendant, because, in the majority’s view, ultimately the order that was sought treated Yelp! as the publisher or speaker of the information to be removed.  The Supreme Court of California perceived the refusal to join Yelp! as strategic, but tactically fatally flawed, for Hassell was attempting to do indirectly what Section 230 would directly forbid.

The majority of the court disagreed with the notion that Yelp! would not be burdened by compliance with the order in issue and, presumably, with similar orders to follow in the future.

The majority noted that Hassell retains remedies against the judgment defendant, who could be required to try to secure removal of her posts.  

In concurrence, Judge Kruger would narrow the determination to find the order invalid where Yelp! had not been a party to the litigation and had not had its day in court. Section 230 need not be considered, but if it were, it would likely immunize Yelp!. Whether immunity would continue on other facts remains for examination on another day.

Dissenting Justice Lui sees the court as ensuring that Hassell will continue to suffer the harm that her defamation action sought to ameliorate.  No circumstances that immunity was intended to avoid are present where Yelp! has not been exposed to any liability or required to defend against an action for defamation.  The general principle that non-parties are not subject to orders and judgments does not apply where Yelp! was asked only to aid in effectuating a judgment that had already entered. Without suggesting that all online services that publish reviews ought to be open to compliance with removal orders, Judge Lui could not construe Yelp!’s relationship with Bird as entirely passive, as it was only through Yelp! that Bird could act.

Judge Cuellar has dissented separately, with Judge Stewart’s agreement, and in so doing drew no small amount of counterargument from the majority.  Judge Cuellar disagreed with the notion that Section 230 provides an absolute bar to any liability. Due process principles are involved with the notion of compliance with a lawfully issued order, but the court’s determination in this case has gone too far and will serve to defeat those who seek redress for defamation.  Section 230 can be seen as immunizing against liability for damages, not as a shield against compliance with court orders, which can run against third parties. There would be no unfairness to Yelp! concerning the take-down injunction, for notice to Yelp! would be required before any such order could be entered.

It is highly unlikely that this case will be seen as resolving the issues presented when liability arises in the course of  life online, although for present purposes the decision is likely of great comfort to internet service providers and great consternation to those who assert they have been defamed online. The California Supreme Court judges have been nothing if not  thorough in describing and discussing all relevant precedent. In that regard, the Hassell v. Bird decision may serve as a teaching case as well as a significant decision in its own right.

Hassell v. Bird, No. S235968 (Cal.) July 2, 2018

Supreme Court Holds California’s Regulation of Pro-Life Pregnancy Centers Fails First Amendment Review

National Institute of Family and Life Advocates, d/b/a NIFLA, et al. v. Becerra, Attorney General of California, et al., No. 16-1140 (June 26, 2018).

California Requires Pro-Life Pregnancy Clinics to Provide Information About Abortion Access. California enacted legislation requiring that state licensed crisis pregnancy centers provide clinic visitors with notice, including telephone contact information, that the state provides free or low cost services, including abortion. California also required unlicensed clinics to provide notice of their unlicensed status. The California Reproductive Freedom Accountability, Comprehensive Care and Transparency Act (FACT Act) imposes its notice requirements only on pro-life entities, as state sponsored or non-pro-life clinics are excepted.

The Pro-Life Entities Failed to Persuade the Lower Federal Courts. Petitioners unsuccessfully sought federal injunctive relief in on First Amendment grounds, a result affirmed by the Ninth Circuit Court of Appeals, which held that petitioners could not demonstrate a likelihood of success on the merits where the licensed notice requirements met the low level of scrutiny attaching to “professional speech” and the unlicensed notice requirements satisfied any level of scrutiny

The Ninth Circuit’s characterization of the statute as regulating “professional speech” permitted avoidance of the strict scrutiny mandated by presumptively unconstitutional content based speech restrictions.

The Supreme Court Disagrees. The Supreme Court has concluded that the petitioners can likely succeed on the merits of their claims, has reversed the judgment of the Ninth Circuit, and has remanded the matter for further proceedings.

The concern is the speech, not the speaker. The Supreme Court observed that the Court has never recognized this new category of “professional speech” subject to less rigorous review. States may regulate professional conduct even if such regulation incidentally burdens speech. Deferential review has not, however, turned on who is speaking, but on the factual nature of disclosures concerning commercial matters.

The Supreme Court concluded that the FACT Act had little to do with regulation of professional conduct but instead regulated speech as such. While the Court refused to foreclose the potential to recognize professional speech at another time, the Court observed that the dangers of speech regulation — that the government will use its power to suppress disfavored ideas — applies to “professional speech.” An inability to discuss good information,or the distortion of information, or the provision of bad information, while particularly deadly in medical settings, easily can be seen as diminishing the “marketplace of ideas” in which robust discussion ultimately serves the truth.

Rights as significant as those guaranteed by the First Amendment cannot depend on professional licensure. Permitting such limitations would provide the state with a tool that could be wielded to promote invidious discrimination against unpopular ideas.

Even if “professional speech” were recognized, the Court’s conclusion would not change, as the statute could not survive intermediate scrutiny, being “wildly under-inclusive” because of its application, after unsupported exclusions, only to pro-life entities. California could have addressed its concerns about information itself without burdening any private speech.

“Maybe” Measures Disfavored. The Court found California failed to meet its burden of establishing that the unlicensed status notice addressed anything other than a hypothetical harm, an unacceptable result. Broad prophylactic measures risk chilling protected speech. Nothing suggested that women were unaware of clinics’ licensure status. Notice of the absence of licensure was not needed for services for which licensure was not required.

Even had a justification for the measures been found, the state cannot compel non-state speakers to adopt a government script that unduly burdens speech. The Court found California’s distinctions among services between the license and unlicensed notice requirements to be odd. The FACT Act affects the speech of some speakers, but not others, a disfavored result, and occupies space already addressed by the state licensure regulations The detailed parameters and specifics of the notice requirements underscore the state-imposed burden, particularly as they threaten to drown out a clinic’s own chosen message.

Justice Kennedy Warns of the Dangers of the Authoritarian State. Justice Kennedy joined the majority opinion in full, applauding the Court’s restraint in making its determination without addressing the viewpoint discrimination issue presented. The Court’s determination on other grounds in no way intimates that the law would be acceptable had a broader base and broader coverage been employed. The design and structure of the act embodies viewpoint discrimination and exemplifies the threat presented when the government seeks to supplant individual speech, thought, and expression. The state’s intent — to compel speech contrary to deeply held beliefs — coupled with its apparent targeting of beliefs disfavored by the state — is far from “forward thinking” but instead illustrates the ills of authoritarian government, avoidance of which was and is a cornerstone of the Constitution.

Ill at Ease with the Majority’s Reasoning, the Dissent Fears a Cascade of New Challenges. Justice Breyer and three others foretell the doom of many disclosure regulations as a result of the Court’s decision. Justice Breyer and his colleagues question why, if information must be provided to obtain informed consent, information cannot be required to be provided about available services and licensure status.

NIFLA v. Becerra, No. 16-1140 June 26, 2018

Some Friend! Facebook Gun Photo Not Suppressed, Even Where “Friend” Turned Out to Be a Detective

Everett v. Delaware, No. 257.  Supreme Court of Delaware, May 29, 2018.

Everett was indicted for unlawful firearm possession after a detective, using a false profile, became Everett’s Facebook “friend,” which enabled his observations of Everett’s posted media showing his nightstand displaying a gun.  Everett moved to suppress the evidence, claiming that the detective’s monitoring of his Facebook page violated the Fourth Amendment. The Supreme Court of Delaware rejected this challenge, holding that a Facebook user has no reasonable expectation of privacy that Facebook information will not be passed along.  False friendship, gossip, and unwanted sharing of information are recognized hazards of human social interaction. “Friends” are always free to pass information along, whether or not the disclosing party wishes. The Fourth Amendment does not protect information voluntarily disclosed to an accepted “friend,” whether in person or online.

Similarly, the court rejected the notion that there needed to be evidence of wrongdoing before the detective initiated the ruse:  there is no constitutional protection against a misplaced belief that shared evidence of wrongdoing will not be disclosed.  

Everett v. State (Del., 2018)


Civil Wrongs: Supreme Court Reverses State Judgment in Gay Wedding Cake Controversy: Colorado Civil Rights Commission’s Bias Against Religion Offends the First Amendment

Masterpiece Cakeshop, Ltd. v. Colorado Commission on Civil Rights, No. 16-111, 574 U.S. ____ (June 4, 2018).

This much publicized case promised a showdown between gay civil rights and religious convictions in the public square.  The Colorado Civil Rights Commission and the state’s Court of Appeals found in favor of the gay couple who complained of civil rights violations when a custom baker declined to create a cake for their wedding, citing religious convictions precluding support of gay marriage.

The controversy pitted egalitarian principles governing commerce — the public accommodations laws — against a merchant’s religious views which, he averred, precluded the extension of goods and services to the gay couple seeking a custom wedding cake.

Noting the depth and significance of the issues presented, the Supreme Court today deftly left them for another day, finding that the conduct of the state in adjudicating the couple’s discrimination claim in itself violated the First Amendment.

The Supreme Court found that the Colorado Civil Rights Commission’s contempt for the baker and the expressed view that religious freedom has justified slavery and the Holocaust caused the commission to be in dereliction of its obligation of fairness and neutrality in considering religious assertions.  As such, the Commission’s determinations and the judgment of the state court of appeals upholding it must be reversed.

Those hoping for some sort of High Noon between civil rights and religious liberties in this case may pause for a moment of disappointment.  Nonetheless, there may have been wisdom in the Court’s taking the high road on the issues of substance in favor of chastening those who administer justice that they must do so with due regard to the rights of all who appear before them.  A basic lesson, perhaps, but one that this Court, on the record before it, clearly felt merited repeating.

2018 06 04 Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, et al. S.Ct





The Sinful and the Secular Collide in Iowa Clergy Scandal: Iowa Supreme Court Sets Parameters of Church’s Exposure to Liability

Bandstra, et al. v. Covenant Reformed Church, No. 16-1078.  Supreme Court of Iowa, June 1, 2018.

Covenant Reformed Church of Pella, Iowa, is governed by a professed religious pastor and lay elders who serve in both administrative and pastoral capacities.  The pastor is subject to the supervision of the board of elders, who monitor the doctrinal quality of preaching, who meet with the pastor to discuss matters needing attention, and who consult with members of the congregation concerning satisfaction with the pastor.

More than a decade ago, Covenant Reformed Church installed talented homilist Patrick Edouard as pastor.  Edouard resigned immediately after the elders received reports that he had engaged in sexual relations with two congregants during the course of counseling.  

The church leadership responded to the resignation by a letter to congregants noting that Edouard’s sin had compelled the acceptance of his resignation.  The letter provided no details about his conduct.

The elders then summoned the women involved with Edouard, urging and receiving confessions, and offering forgiveness.  

The elders then wrote to the congregation to stress that Christian prudence would caution against naming or discussing the persons involved in the departure of the pastor, and emphasizing the congregation’s wish that these persons remain among them.  

Following intervention by a parishioner concerned that the elders had not used current social theory nomenclature in discussing the women by referring to sin and adultery rather than victim hood.  The elders conferred and determined that in the absence of other evidence, Biblical terminology was apt. The elders were of the view that both the minister and the congregants bore responsibility, that repentance was desirable, and that the matter was neither one of “clergy sexual abuse” or “grooming.”  The elders sought but did not received endorsement from an expert on clergy sexual abuse.

The women involved with the minister — who was convicted by a jury of sexual exploitation — sued the minister and the church, alleging negligence in failing to provide clergy sexual abuse experts to work with the congregation, infliction of harm in blaming the women for their involvement, negligent supervision of the pastor, and defamation.

The Supreme Court of Iowa has opined that the elders’ characterization of the pastor’s and the women’s conduct as adulterous lies squarely within the church’s religious province:  interference by a secular civil court would offend the Religion Clauses of the First Amendment.

The First Amendment  limit on civil judicial intervention does not attach, however, to the supervision of the pastor, an administrative task not involving theological concerns. Similarly, the court observed that clergy communications of secular purpose — supervision, governance, and administration — are not privileged.

It is notable that the court adopted an expansive view of the qualified immunity attaching to clergy and congregational communications, extending its protections to the lay church elders.  

The court reviewed several official communications, concluding many were not actionable as defamation in the absence of evidence of abuse, malice, or conduct beyond the group’s purpose.  Other communications were non-actionable opinion.

Documents not before the court or contested documents ought to be examined in view of these principles on remand.  

Some may be comforted and others vexed by the state supreme court’s recognition of its constitutional constraints.  The court was clear that while the First Amendment forbids judicial interference in ecclesial matters, that is not the case with judicial examination of a church’s secular functions or where clerical privileges may be lost through misuse.  What is notable is that in this case, the very wrong alleged is the use of Biblical language with arguably injurious secular connotations. In an increasingly secular society, in which reputation is easily lost and seldom fully redeemed, it is not likely that the Iowa court’s view, however sound it may be, will end exploration of the legal admixture of the sacred and the profane.

2018 06 01 Bandstra v. Covenant Reformed Church. Iowa Supreme Court




The Electronic Public Square: The President’s Twitter Account Is Public Forum. In Permitting Political Commentary on Twitter, the President May Not Preclude or Banish Authors Offering Criticism

Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, et al.No. 17 Civ. 5205 (NRB) (May 23, 2018).

The United States District Court for the Southern District of New York required seventy five pages with which to examine the nature of Twitter, Tweets, and Retweets, the nature of the President’s actions in creating and posting to a Twitter account, and the constitutional limits on inhibiting speech in a virtual public forum.  

In short:  a Twitter account operated by the President is a public forum in which protected political speech occurs.  Precluding critical views is unconstitutional viewpoint discrimination.

No doubt the seventy five page exegesis was crafted with an eye toward further review. Whether this will occur is not known, but what is of note is not entirely the federal district court’s primary determination, which has the virtue of appealing to a commonsensical “come one, come all” view of public debate in the new millennium, but rather some of the court’s supporting determinations are somewhat intriguing.

The trial court declined to opine concerning whether the judiciary could enjoin the executive, a matter wisely sidestepped as, the court offered, it is not necessary in declaratory proceedings.  More interesting, however, is the court’s view that even if the President could not be enjoined, his staff could, which some may perceive to be something of a topsy-turvy view of agency. In addition, the court noted that it had at hand recourse to the All Writs Act.  With the person considered to be suitable for induction before the court, and thus subject directly to the court’s orders, it is not easy to apprehend why the All Writs Act would be needed.

Most beguiling is the notion of “readership standing” found to support the claims of the Knight Institute.  The outer limits of such a concept of standing, envisioning injury occasioned by not being able to read a Twitter poster as often or as clearly as wished, remain for exploration, but this does seem to be, at best, quite an expansive view of what sort of interest or injury may support standing.  In this case, however, the Knight Institution’s claim may be worthy of merit by virtue of some semblance of concreteness, there having been alleged an existing relationship with one of the banished readers. However, it is not inconceivable that future cases will test this notion: time will tell.  

Knight Foundation, et al. v. Trump, et al., 2018.05.23 Order on Motions for Summary Judgment

Junk in the Trunk? Officers’ Search Based on Car Rental Agreement Violates the Fourth Amendment, Supreme Court Concludes

Byrd v. United States, No. 16-1371 (S. Ct.) (May 14, 2018).

Something seemed amiss in petitioner Byrd’s driving, according to Pennsylvania State Troopers who stopped him and, on discovering that he was not an authorized driver of the rental vehicle he occupied, searched the trunk, where 49 bricks of heroin and body armor were found.  The federal district court in Pennsylvania and the Third Circuit Court of Appeals denied Byrd’s motion to suppress the fruits of an unlawful search, observing that Byrd’s failure to be shown on the contract as an authorized driver of the rental car negated any expectation of privacy.

The Supreme Court has disagreed, holding that the expectation of privacy that is central to determinations of whether searches comport with the Fourth Amendment cannot be destroyed by tangential questions such as the insurance consequences of permitting an unauthorized driver to operate a rental car.

Freedom from unreasonable searches and seizures is essential to liberty, the Court observed, reflecting on the Framers’ concern with the indignities of general warrants that, among other matters, precipitated rebellion against the Crown.  

While privacy expectations in an automobile may be diminished, the more salient question is whether any search violates a Fourth Amendment interest, which requires examination of privacy interests, which need not, but certainly may be, grounded in common law property concepts.  While an individual need not have a common law property interest in a place to be searched to claim an expectation of privacy, it does not follow that legitimate presence alone confers Fourth Amendment rights. While not susceptible of precise and exhaustive definition, the Court observed that privacy expectations must come from outside the Fourth Amendment, either through property concepts or through societal recognition.  

Thus where rights of exclusion attach to possession or control, reasonable expectations of privacy flow from those rights of exclusion, and this principle controls the outcome for Byrd.

The Court declined to indulge either party’s “always” or “never” arguments concerning the rights of unauthorized drivers, finding the parties’ positions to be too broad or too restrictive.

A legitimate presence in an automobile will not of necessity confer a legitimate interest in prohibiting a search of a glove compartment, the Court has previously held, but from this it does not follow that Byrd had only the interests of a passenger, which he would have been had the authorized driver been behind the wheel.   In the Court’s earlier case, the Court recognized an interest in mere presence but the accused in that case did not argue that presence included an interest in freedom from search of the connects of the vehicle.

The exercise of dominion and control, and the right to exclude, are critical determinants that exist without respect to restrictions in the rental agreement, which has little bearing on the driver’s expectation of privacy, a point agreed to by the government.

Although the Court’s property and contract analysis might have provided some comfort to Byrd, the victory of recognition of his privacy interests at the Supreme Court does not conclude the matter.  Notwithstanding dominion and control, and rights of exclusion, was Byrd’s status, because of potential subterfuge in arranging the rental, no better than that of a thief, which would vitiate all expectations of privacy?  Were the officers in possession of sufficient information to believe that at the car contained evidence of a crime, thereby legitimizing a warrantless search under established automobile exceptions case law?

Both questions remain for future development on remand.

One concurring justice noted that the majority would have done well to be more definite in determining when an automobile might fairly be said to be an “effect” for Fourth Amendment purposes, to which privacy expectations might attach.    Another would not disregard the rental agreement nor the circumstances obtaining the rental as sources of information bearing on the availability of a Fourth Amendment claim.

Byrd v. United States, No. 16-1371. S.Ct. May 14, 2018

Gimme Shelter! Not in Texas, Fifth Circuit Concludes, Vacating Injunction That Would Have Precluded Anti-Sanctuary Cities Measures

City of El Cenizo v. Texas (5th Cir., 2018)City of El Cezino, et al. v. Texas, et al., No. 17-50762 (5th Cir.) May 8, 2018.

The Texas legislature sought to nip in the bud local “sanctuary city” self-selection measures through which Texas localities promised not to cooperate with federal officials in enforcing immigration detention and cooperation policies.  Texas passed legislation which now forbids such avoidance of federal law.  Localities rebelled, asserting violations of the U.S. Constitution: all but one of the harms alleged was found to lack merit.

Texas Government Code 756.053(a-b) forbids local governments from adapting policies or practices inhibiting immigration enforcement.  The Texas Code of Criminal Procedure requires local compliance with federal Department of Homeland Security requests requiring notification of federal authorities before detainees who may be in violation of immigration laws are released.  Civil and criminal penalties attach to failures to conform to these measures.

A federal district court rejected general claims that federal law preempts Texas anti-sanctuary cities measures but granted injunctive relief concerning cooperation measures.  The trial court found requirements forbidding ‘endorsement’ of anti-federal immigration measures fatally overbroad, vague, and viewpoint discriminatory. The trial court found the statutory proscription of “materially” limiting federal immigration provisions defective as vague. Finally, the district court found the detainee mandates violate the Fourth Amendment.

Texas sought stays of the injunctions pending appeal, succeeding in part on the Fourth Amendment and preemption claims.  The “material” limitation survived review, but the “endorsement” provisions did not.

The Fifth Circuit observed that there is no express preemption in federal immigration law.  Here, field and conflict preemption are in issue.

Although field preemption prohibits state or local measures where Congress has manifested an intent to occupy the regulatory landscape, and although an intricate web of federal and state cooperation and compliance measures are already in place, the Fifth Circuit failed to perceive field preemption, emphasizing that federal law controls how local authorities will cooperate but local law controls whether they may do so. Not only would the Tenth Amendment prohibit the sort of compelled action imagined if a federal ‘sanctuary’ measure were enacted, but if preemption were found, much of the extant local cooperation measures would fall away.

Conflict preemption considers whether state or local law thwarts Congressional objectives:  none were found here, the Fifth Circuit held, because the state prohibitions on material limitations of cooperation with federal immigration officials envision cooperation, not conflict. Neither can conflict preemption be found where federal assistance and cooperation agreements are permitted but not required, and where the Tenth Amendment would again prohibit federal compulsion of local enforcement of federal law.  

The state statute’s prohibition on preventing inquiry into immigration status is not infirm where the Supreme Court has held that local officers may inquire about the immigration status of persons  lawfully detained if reasonable grounds exist to believe a detainee is improperly present.

The state prohibition of “endorsement” of prohibiting or materially limiting immigration enforcement may be enjoined, as it impedes core political speech by elected public officials. As non-elected employees were not before the court, the court declined review of their First Amendment interests.

Local officials have standing to challenge the detainee mandates in that their refusal to do what is required would jeopardize their positions. Notwithstanding the real potential for injury, a facial Fourth Amendment challenge must fail, as it is not possible to establish that each and every immigration and customs enforcement request violates the Fourth amendment. Moreover, current administrative warrant practices require attestation to probable cause for removability and the collective knowledge doctrine permits imputing probable cause to local officials.

Finally, probable cause of criminality is not required to support detention. Persons lacking capacity through illness or legal infirmity may be seized without probable cause of criminality.  Where the federal Immigration and Customs Enforcement detainee laws require state officials to carry out federal detention requests, a Massachusetts determination that state officials had no independent immigration enforcement powers is not on point. Significantly, local officials are not bound to overlook an absence of probable cause, particularly where valid identification would excuse continued detention. Imagined subsequent changes in federal law abandoning probable cause requirements cannot control current practice.

The Fifth Circuit rejected a vagueness challenge to the ‘materiality’ qualification for interference with federal law enforcement. Specific examples of ‘material’ interference have been presented and the notion of ‘materiality’ has been well replicated in securities and professional responsibility laws. Any as-applied analysis must await cases with greater concreteness.

The Fifth Circuit concluded that injunctive relief in all but the endorsement claims must be vacated.  

City of El Cenizo v. Texas (5th Cir., 2018)