Carry On, Criminal Investigators! Eleventh Circuit Stays District Court Order Prohibiting Use of Classified Documents Seized from Former President’s Residence Pending Special Master Review


Donald J. Trump v. United States of America, No. 22-13005 (11th Cir.) Order issued  September 22, 2022 (Not For Publication).


In recent weeks, on application by former President Donald J. Trump, the United States District Court for the Southern District of Florida issued an order appointing a Special Master to assist in reviewing materials seized during an August search of the former president’s residence at Mar-a-Lago.  Pending completion of the Special Master’s review, the court ordered federal investigative officials to refrain from using any of the seized materials bearing classification markings, but specifically noted that classification review could continue.  The trial court denied the United States’ motion to stay that portion of the order that would preclude use of documents with classified markings in any ongoing criminal investigation and that would require submitting the documents with classification marking for review by the Special Master.  

The United States sought interlocutory review in the Eleventh Circuit Court of Appeals.  The Eleventh Circuit reviewed the trial court’s order according to principles governing issuance of injunctions, and found that the trial court, which has broad, yet not unbounded discretionary to such relief, erred in granting relief in the absence of evidence of callous disregard for the former president’s interest and in the presence of potential for serious harm to the government’s and the public’s interest if investigation is foreclosed.  The Eleventh Circuit has stayed the preclusion and turnover portions of the trial court’s order.

Trump v. U.S. No. 22-13005 (11th Cir.) Order of September 21, 202

Fifth Circuit Concludes the First Amendment Protects Speech, Not Censorship, Finding No Infirmity in Texas Law Promoting Fair Access to Internet Platforms


Net Choice, LLC, et al., v. Paxton, Attorney General of Texas, No. 21-51178 (5th Cir.) September 16, 2022.


Plaintiffs are internet technology platforms which have objected to recently-enacted Texas legislation intended to preclude viewpoint censorship.  Plaintiffs argue that the bill on its face violates the platforms’ First Amendment rights.

A three judge panel of the Fifth Circuit  has published its perceptionthat Net Choice and other plaintiffs have an inverted view of the First Amendment, which assures persons of the right to freedom of speech but which does not incorporate a corollary, but unenumerated, right to restrain speech.  In its September 16, 2022 opinion, the panel stated:

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.

Slip op. at 2.

The panel dismissed the notion that, as the platforms would have it, providers could terminate the accounts of anyone, particularly anyone articulating a disfavored view.

A platform might achieve market dominance by promising free speech, yet once ensconced as “the monopolist of ‘the modern public square’,” the platform might about face to cancel and ban anyone the platform’s employees might choose to disfavor.  Slip Op. at 2, citing Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).

The Texas bill in question precludes large media platforms from engaging in viewpoint discrimination with respect to access, excepting non-protected speech and speech specifically restricted by federal law, such as speech harmful to minors or other protective measures. Slip op. at 4.  Those who are restricted and believe this to be wrongful may seek relief in courts.  The state also might enforce the statute.

In addition, platforms must publish their moderation and use policies to the state concerning their moderation activities and actions, and mandates a complaint and appeal process for the platform’s users.

The Fifth Circuit panel noted that pre-enforcement facial challenges to to new laws, particularly any law concerning speech, are disfavored. Not only are courts constrained to decide only cases and controverses, but also federalism and comity concerns arise when federal courts review state laws before states have had the opportunity to do so.   To this must be added the extraordinarily high standard that attaches to facial challenges:  the challenging party must show that under no circumstances could the law in question be valid.

Here the challenge is one of overbreadth, a judicial doctrine intended to avoid chilling speech or association.

In this case the concern is not one of chilling speech, but of chilling censorship.  Censorship is inconsistent with the ‘pure speech’ that the overbreadth doctrine addresses.  Censorship is, at most, expressive conduct, to which only the most attenuated protections might attach.

No case directly supporting facial application of the overbreadth doctrine to censorship has been found, the court observed, and the as-applied challenges the platforms cite were presented when there were concrete challenged applications, unsuitable for use as a mechanism for invalidating a statute not yet operative.

Overbreadth challenges are intended to protect strangers to the litigation who could not lodge as-applied cases and whose speech would be chilled by an overly broad law.

The Fifth Circuit squarely rejects the notion that the Texas legislation inhibits speech by inhibiting platforms’ removal of speech, denouncing as inapt the platforms’ attempts to recast their censorship as protected speech.

The court also has declined to locate within the platforms’ notions of ‘editorial discretion’ any specifically protected speech interest.  Section 230 of the Communications Decency Act of 1996 hinders rather than advances the platforms” arguments.

The panel did not favor the planforms’ strained construction of censorship as speech to be protected, while nonetheless insisting no speech is involved in invoking the protections of Section 230.

Even if editorial discretion could be seen as a protected legal category, advanced content arrangement and censorship could not meet qualification as a protected category.  No such category of individual discretion has been recognized.  As the Texas stattue neither forces the platforms to speak or interferes with their speech, the Texas legislation is not constitutionally defective.

While standing alone the Texas statute is constitutionally sound, Section 230 removes all doubt, for it specifically states that platforms are not publishers or speakers when they host others’ content.

The appellate panel has concluded that Texas was correct in characterizing the social media platforms as “common carriers’ subject to nondiscrimination regulations.”  Slip op. at 53.

The court rejected the platforms’ assertion that the platforms are not part of the communications industry, for their own representations confirm that communications is their purpose.  The platforms hold themselves out to the public as ‘traditional’ common carriers do, ostensibly serving all on the same terms.  Slip op. at 54.

The court also rejected the idea that platforms might elide that common carrier obligations by  promulgating their own internal regulations for use.  This is immaterial, in that the same terms apply to all.

The circularity of the platforms’ argument that they are not common carriers because they engage in viewpoint discrimination, a position offered in order to avoid common carrier regulation is “upside down,” much as is the argument that they cannot be common carriers because they remove some obscene speech, as the law permits this, much as transit carriers would be permitted to oust ill behaved riders.  To put a fine point on it:

The Platforms offer no reason to adopt an ahistorical approach under which a firm’s existing desire to discriminate against its customers somehow gives it a permanent immunity from common carrier nondiscrimination obligations.

Slip op. at 55.

Moreover, at this time it is difficult to avoid recognizing that the public interest in a wide swath of  topic’s underlies and informs much, if not most, use of social media and other internet platforms.

Several federal courts of appeal have recognized platforms as public forums.  Slip op. at 56. Where such platforms serve as central locations for public debate, exclusion from the forums is exclusion from public debate.  Slip op. at 56.  Additionally, the platforms are central operators in economic life, generating wealth through advertising and access.  Platforms may become entrenched in a particular area that cannot be reproduced by competitors, and thus is irreplaceable to users.

Government licensing is not necessary to establish common carrier monopoly, but if it were, Section 230 would suffice.

The platforms’ arguments about state nondiscrimination rules applicable to common carriers overlook that challenges to such laws were successful only where the laws did not further anti-discrimination but supported discrimination.  Other cases from the Lochner era have been long ago been discredited and cannot be revived now.

The platforms’ similarity to common carriers only undermines their assertion that their speech rights are involved.  Common carriers transport the speech of others, but this does not involved any speech rights of the carriers.

Even if the platforms’ speech interests were implicated, facial pre-enforcement relief could not be granted where the content and viewpoint neutral legislation would survive intermediate scrutiny.

The platforms’ complaints about what they assert are burdensome disclosure and reporting requirements do not merit pre-enforcement relief, and the platforms do not point to any impingement on any First Amendment rights that would arise during compliance.  Moreover, any additional effort needed to tailor existing complaint processes does not imply any chilling effect, as the processes are intended to impede censorship, not speech.  Hypothesized flaws in the process do not merit pre-enforcement review, because the platforms cannot show that the lion’s share of the legislation is unconstitutional.

The Fifth Circuit has declined to follow the eleventh Circuit, which recently enjoined a Florida law inhibiting platforms” censorship.  The Florida law only concerned censorship of politicians campaign speech. The Florida law “prohibits all censorship of some speakers, while [the Texas law] prohibits some censorship of all speakers.”  Slip op. at 80.  Moreover, the Florida law implicated the platforms’ own speech by forbidding the platforms from adding addenda to others’ content.   Finally, the fines to be levied under the Florida law are onerous when compared with the non-monetary equitable relief provided to platform users by the Texas law.

The Fifth Circuit does not join the Eleventh Circuit’s view that there is a recognized category of protected speech called “editorial discretion,” The Fifth Circuit further refuses to consider censorship as protected speech and further does not agree that the common carrier doctrine does not support the imposition of nondiscrimination obligations on the platforms.

In a separate concurrence, Judge Edith H. Jones agreed that forbidding censorship is not forbidding speech:

In particular, it is ludicrous to assert, as NetChoice does, that in forbidding the covered platforms from exercising viewpoint-based “censorship,” the platforms’ “own speech” is curtailed. But for their advertising such “censorship”—or for the censored parties’ voicing their suspicions about such actions—no one would know about the goals of their algorithmic magic. It is hard to construe as “speech” what the speaker never says, or when it acts so vaguely as to be incomprehensible. Further, the platforms bestride a nearly unlimited digital world in which they have more than enough opportunity to express their views in many ways other than “censorship.” The Texas statute regulates none of their verbal “speech.” What the statute does, as Judge Oldham carefully explains, is ensure that a multiplicity of voices will contend for audience attention on these platforms. That is a pro-speech, not anti-free speech result. 

Slip op. at 91.

Even if speech were involved, Turner Broadcasting v. FCC, 512 U.S.  622 (1994), found that, if speech is involved where cable companies choose channels, under intermediate scrutiny ‘must carry’ preferences are content neutral.  Cable companies did not need to modify their own speech, the mandated speech was not associated with the operators, and the selection of channels could silence competitors.

Additionally, even if the platforms are correct in arguing that Texas’ legislation might chill the platforms” speech, this will not survive a faction attack:

Case by case adjudication is a small burden on the Goliaths of internet communications if they contend with Davids who use their platforms. 

Slip op. at 92.

Judge Leslie H. Southwick separately concurred in part and dissented in part.  Judge Southwick agreed that a facial attack on a state law is unlikely to succeed and that the platforms’ businesses are of great public importance.  He rejected the idea that the court’s conclusions can be recast by an ill-fitting speech/conduct distinction.

The judge observed that what the majority perceives to be censorship he perceives to be editing, and editing in a novel format, having its closest analog in newspaper editorial functions which the Supreme Court has found to be protected First Amendment activity.  Slip op. at 96.

If the First Amendment is involved, this judge agrees with the Eleventh Circuit that the government does not have a substantial interest in preventing unfairness, but the private actors do have an interest in freedom to be unfair.   Slip op. at 108-109.

Moreover, prohibitions on the de-platforming or de-monetizing go too far in attempting to serve any interest the government may have in protecting the free flow of information.  Slip op. at 110.

The judge believes that the common carrier cases do not strip carriers — here, platforms — of a First Amendment right to their own speech. Slip op. at 110-111.  Similarly, Section 230 does not impact platforms’ rights to moderate content. Slip op. at 111. Section 230 exists to underscore that a platform that publishes third party content does not endorse it or adopt it as its own.

Although concurring with the panel’s judgment, Judge Southwick cautioned that when platforms make decisions about permissible speech and its presentation. the platforms are involved in activity which is protect by the First Amendment, which does not require fairness.  Slip op. at 113.

NetChoice, et al. v. Attorney General of Texas, No. 21-51178 (5th Cir.) Opinion issued September 16, 2022

A Labor Day of Law: Federal Court Agrees to Appoint Special Master in Challenge to Search at Mar-a-Lago, Enjoins Investigators from Use of Materials Under Review


Donald J. Trump v. United States, No. 22-81294 (MAC).  Order entered September 5, 2022.


Citing the need “to ensure at least the appearance of fairness and integrity,” the federal judge assigned to hear former President Trump’s request for appointment of a Special Master to review materials seized pursuant to an unannounced search of his Florida residence, Mar-a-Lago has granted that request.  

Having concluded that the circumstances warrant the exercise of the court’s equitable jurisdiction and supervisory powers, the court examined the equitable considerations supporting or negating the propriety of the appointment of a Special Master.

The court rejected the government’s argument that the former president could not seek relief because in the government’s view the former president does not own the materials seized.  Not only is this not wholly true, the court observed, but property ownership is no precondition to assertion of Fourth Amendment interests.

The idea that the former president cannot challenge the search fails, in the court’s view, because the issue before the court is not standing on the merits of any claim, but standing to seek equitable relief in the form of a special master, which the court has found to be present.  

The argument that there exists concern only for materials subject to the attorney client privilege but not the executive privilege also fails, the court found, as the government’s assertion that the executive privilege is lost the moment a president vacates the office lacks support in the law.  

The court rejected the notion that the work of a government privilege review team obviates the need for a special master.  While adequate in some cases, the court observed, this is not an ordinary case, and to the extent that there have been instances of some materials not being cabined by the government privilege review team, even if inadvertent, highlights the need for independent review. 

The court has elicited suggestions for appointees to act as Special Master to be filed by the parties by September 9, 2022. 

The government has been ordered not to make use of any of the seized materials under review by the Special Master in any criminal investigation at least during the conduct of the Special Master’s review.  The government may continue its classification and national security review.  

2022 09 05 Trump v US 22-81294 Order

More Translucent than Transparent, Unsealed Government Inventory and Investigative Status Report Indicate Government’s Quest for Evidence Continues


Donald J. Trump v. United States, No. 22-81294 (AMC).  Minute order entered September 2, 2022.

The federal district court in Florida has heard argument concerning the former president’s request for appointment of a Special Master and for other relief, and has directed that the government’s investigative status report and inventory of items seized at the Mar-a-Lago residence be unsealed, with an order to follow.

The federal investigative team has advised the court that it is reviewing materials seized at Mar-a-Lago, has separated them into items with classified markings and those without, has taken care to conform its work to that of a privilege review team.

The federal investigative team has advised the court that the review of the materials seized is in pursuit of an “ongoing criminal investigation.”  The status report explains that materials are being reviewed for relevance to unstated charges:

The investigative team has reviewed the seized materials in furtherance of its ongoing investigation, evaluating the relevance and character of each item seized, and making preliminary determinations about investigative avenues suggested or warranted by the character and nature of the seized items. The seized materials will continue to be used to further the government’s investigation, and the investigative team will continue to use and evaluate the seized materials as it takes further investigative steps, such as through additional witness interviews and grand jury practice. Additionally, all evidence pertaining to the seized items — including, but not limited to, the nature and manner in which they were stored, as well as any evidence with respect to particular documents of interest — will inform the government’s investigation. Thus, it is important to note, “review” of the seized material is not a single investigative step but an ongoing process in this active criminal investigation.

Notice by Investigative Team of Status of Review, page 2.

The status report is clear that the review of seized materials is not in support of conclusions reached with respect to any violations of criminal or civil law, but in support of investigation of whether any violations of criminal or civil law may have occurred.  The review team is clear that such materials may be used in grand jury proceedings.

Should materials become part of grand jury proceedings, disclosure of the nature of any such materials would become highly restricted in accordance with Federal Rules of Criminal Procedure 6(e).

The status report notes that a federal agency is also reviewing the materials seized to determine the threat to national security should such documents be released.

The government investigators have assured the court that due care has been and will be exercised to consider whether any materials are subject to the attorney client privilege.

The newly unsealed inventory provides information about the place from which materials were seized, the number of items in each container, and the nature of the items, such as “magazines” or “newspapers”, clothing, gift items, books, photographs, or items with classification markings.

2022 08 30 Notice by Investigative Team of Status of Review unsealed 2022 09 02

2022 08 30 Detailed Property Inventory Pursuant to Court’s Preliminary Order unsealed 2022 09 02

Counsel for Former President Urge Court to Reject Any Notion that Ownership is a Prerequisite to Challenge to Search and Seizure at Mar-a-Lago Residence


Donald J. Trump v. United States, No. 22-81294 (AMC).  Movant’s Reply to United States’ Response to Motion for Judicial Oversight and Additional Relief, filed August 31, 2022.  Hearing September 1, 2022 at U.S. District Court in Florida at 1 p.m. 

Counsel for former president Donald J. Trump argue that no precedent exists for the government’s argument that in the absence of a property interest –that interest to be determined by the government — an individual seeking to challenge a search and seizure of his residence has no recourse because, in the absence of a property interest — that interest to be determined by the government — the individual who lacks an ownership interest in materials seized lacks standing to seek review.  In the absence of standing, the court has no power to hear the case.  

The government’s argument, counsel have submitted, has no support in extant Fourth Amendment jurisprudence, which recognizes that it is governmental intrusion that is central to the Fourth Amendment’s restrictions on governmental power.  What is necessary is “a legitimate expectation of privacy in the premises searched or the items seized.” Reply Memorandum at 5, quoting United States v. Rackley, 742 F.2d 1266, 1270 (11th Cir. 1984).   The government’s position is not only in error as a matter of constitutional law, but the government fails to recognize that the question before the court is the propriety of appointment of a Special Master, which is directed to the power of the court to grant equitable relief. 

Counsel for the former president observe that any authority to conduct privilege review presented within the application for the warrant issued prior to the search and seizure at Mar-a-Lago was narrowly constrained a a certain portion of the property, yet as the government insists that its review is complete, it would appear that the government exceeded those bounds. 

The government’s argument that the court ought not insert itself into what has been styled a ‘national security’ review by a government entity cannot succeed.  Power to adjudicate matters relating to governmental exercise of powers is at the core of the need for a federal judiciary.  

Counsel note that the government has not conducted itself with the high standards which it purports to uphold, as evidence by the dramatic — and apparently staged — submission to the court of a photograph showing documents bearing “classified” cover sheets.

The former president is in need of an inventory of items seized in order to assert his interests in materials gathered through use of criminal process in a matter that ought to have been a routine discussion of items sought for a presidential library under the Presidential Records Act.  

Movant’s Reply to United States, No. 22-81294 August 31, 2022

 

At Your Service: Having Submitted to the Supreme Court an Amicus Brief Arguing Against Post-Presidential Retention of Executive Privilege, Several Counsel Seek Appointment as Special Master in Challenge to Mar-a-Lago Search and Seizure


Donald J. Trump v. United States, No. 22-cv-81294 (CAC).

The judge assigned to former President Donald Trump’s case against the United States concerning search of his Mar-a-Lago residence has indicated that a special master may be appointed to review the documents seized.  

The court has not solicited bids for appointment of a special counsel. 

Today a group called National Security Counselors submitted a letter to the court offering the curriculum vitae of individuals believed to be competent to serve. 

As evidence of experience, the group has filed a copy of an amicus brief submitted to the Supreme Court last term in opposition to a petition for certiorari by former President Trump concerning federal records.  There it was argued that no individual claim of presidential executive privilege ought to survive the end of an administration. 

 

Letter to Court Seeking Appointment August 30, 2022

Notice of Proposed Special Master Candidates August 30, 2022

Curriculum Vitae of Proposed Special Masters August 30, 2022

Amicus Brief in Supreme Court 21-932

 

 

Inclined to Appoint Special Master to Review Mar-a-Lago Materials Seized, Federal Judge demands Status of Review and Itemization of Seized Materials by Tuesday, August 30, with Hearing Set for September 1, 2022.

Donald J. Trump v. United States, No. 22-cv-81294 (AMC) (S.D. Fla). Preliminary Order on Motion for Judicial Oversight and Additional Relief entered August 27, 2022.

In the Matter of the Search of Mar-a-Lago, No. 22-cv-81294 (AMC) (S.D. Fla.) Movant’s Supplemental Filing in Support of Motion for Judicial Oversight and Additional Relief filed August 26, 2022.

Former President Donald J. Trump has challenged the constitutionality of a search and seizure conducted at his Mar-a-Lago residence on August 8th and has moved the court for the Appointment of a Special Master to manage review of the documents and things seized.  

The federal court in the Southern District of Florida has indicated a “preliminary intent” to appoint a special master, subject to the submission of briefs on August 30 and 31st and a hearing before the court on September 1, 2022 at 1 p.m.

The court has ordered the United States to provide a detailed report of the status of its review of the seized materials as well as a detailed account of what was seized and removed from the Mar-a-Lago residence on August 8.

Supplementing its initial motion to the court, counsel for the former president note that the redacted affidavit supporting issuance of the warrant authorizing the search, released on August 26, provides little insight into any necessity for it, particularly as continuous cooperation had been demonstrated, and particularly as the use of police powers seemed needless where compliance with a civil statute, the Presidential Records Act, was said to be in issue.

Published reports indicate that national security agencies are reviewing materials seized.  Whether review will be said to be complete by the time of this week’s briefing, which could be argued to obviate any need for a special master, remains to be seen.  See Classified Documents Seized from Trump’s Home Undergoing Security-Risk Assessment.  Wall Street Journal, August 28, 2022.  

 

2022 08 27 22-81294 Preliminary Order on Motion for Judicial Oversight and Additional Relief

2022 08 26 22-81294 Movant’s Supplemental Filing in Support of Motion for Judicial Oversight and Additional Relief

 


 

Redacted Affidavit in Support of Warrant to Search Former President’s Residence Reveals Background Information and Theory Concerning Alleged Presence of Classified Materials But Conceals Details


 

In re: Sealed Search Warrant, No. 22-mj-8332 (BER). Redacted Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize docketed August 26, 2022.


The Department of Justice has complied with the U.S. District Court’s order to file a public copy of the affidavit supporting a search and seizure of former President Donald J. Trump’s residence, which occurred on August 8, 2022.  

 

The Department of Justice has outlined the reasons for the redactions made to the documents, which were reviewed by the court before the affidavit was released.  The federal government sought redactions to protect: 1) witness identities; 2) investigative plans or “roadmaps”; 3) Rule 6(e)[grand jury] materials; 4) law enforcement safety; 5) privacy of involved individuals.

 

The redacted affidavit recites that in January, 2022, the National Archives and Records Administration (NARA) received fifteen boxes of documents transferred from the former president’s Florida residence.  NARA became concerned because documents bearing classification markings were included in the transmittal, and was also concerned about the organization and presentation of those materials.  

 

NARA contacted the Department of Justice about these concerns, which prompted the Federal Bureau of Investigation to open a criminal investigation to explore how documents bearing classification markings were removed from the White House, the nature of any storage at the former president’s Florida residence, whether additional materials were stored there, and who was involved in the removal and storage of classified informative in an unauthorized space. 

 

Investigation confirmed the presence of documents marked classified within the transmittal to NARA.  Review prompted the observation that National Defense Information (NDI) was likely within those documents, and that the storage of the fifteen boxes sent to NARA had been at an unauthorized location. 

 

A section of the affidavit provides the caption “There is Probable Cause to Believe that Documents Containing Classified NDI and Presidential Records Remain at the Premises,” but the section is otherwise entirely redacted, with the exception of a recital concerning the location of documents in unauthorized spaces, a reference to ‘violations,’ and a description of the area to be searched.  Concern about the presence of third parties is expressed.  

 

Much of the affidavit recites what the Federal Bureau of Investigation proffers as support in the law for issuance of a warrant to search the former president’s residence and to seize any responsive materials found there, which would include materials believed to be subject to the Presidential Records Act.  

 

The affidavit mentions a published report describing the presence of moving vans at the former president’s Florida residence in January, 2021, and discloses that NARA was advised in May, 2021 that Presidential Records Act materials had been found and were ready to be retrieved. 

 

The affiant reiterates that inventory of the documents transferred to NARA in January, 2022 bore classification markings at high levels of restriction and that those documents were likely to contain National Defense Information (NDI).  

 

Because of believed violations of laws addressing the management of classified information and the belief that materials illegally possess would be found at the former president’s residence, a warrant was sought, with procedural assurances to ensure proper management of seized materials proffered.  

 

Notice of Filing by United States August 26 2022

[Redacted] Affidavit in Support of Application for Warrant Unsealed August 26 2022

[Redacted] Memorandum of Law Supporting Redactions Unsealed August 26 2022

[Redacted] Attachment Itemizing Redactions Unsealed August 26, 2022

 

 

Former President Challenges FBI Raid on Residence, While Magistrate Holds Affidavit in Support of Warrant Must be Disclosed


In the Matter of Search of Mar-a-Lago, 22-cv-81294 (S.D. Fl.).  Motion for Judicial Oversight and Additional Relief, August 22, 2022

In re: Sealed Search Warrant, 22-8332 (BER).  Order on Motions to Unseal, August 22, 2022.


Pursuant to a federal warrant, on August 8, 2022, Federal Bureau of Investigation agents searched for and removed materials from former President Donald Trump’s Florida residence.  Subsequently the former president was presented with a list of materials removed.  

Much speculation and discussion has attended this historic use of law enforcement personnel.  

The former president has raised Fourth Amendment challenges to the search of Mar-a-Lago.  Stressing that at all times documents relating to presidential records he was cooperative with federal authorities, he argues that the warrant itself was so nonspecific and overly broad as to offend the Fourth Amendment.

Moreover, the former president has moved for appointment of a Special Master to oversee the review of seized materials, arguing that a “clean team” of federal agents ought not be permitted to unilaterally conduct the review, and further arguing that the ‘receipt’ from the government is deficient in that it fails to describe fairly what was seized, precluding fair challenge to any review or disposition of seized materials. 

Although the scaffolding of the warrant has been disclosed, the affidavit has been withheld by the government, which has cited the personal safety of informants or witnesses and to potential disruption of ongoing investigations and proceedings.  Multiple media defendants have challenged that position, arguing that the public interest in this matter is sufficient to overcome the government’s interest in protecting sources and materials.

The magistrate judge who issued the warrant has agreed with the media intervenors, subject to any appropriate redactions, proposals for which he has invited the Department of Justice to submit by August 25.  

In re Matter of Search of Mar-a-Lago 22cv81294 (S.D. Fla.) Motion for Judicial Oversight and Additional Relief, August 22 2022.

In re Sealed Search Warrant 22mj08332 (BER) Order on Motions to Unseal August 22 2022.

Up in Arms! Supreme Court Holds New York’s Demand that Permit Seekers Demonstrate Special Need for a Gun Violates the Second and Fourteenth Amendments

New York State Rifle & Pistol Association, Inc., et al. v. Bruen, Superintendent Of New York State Police, et al., No. 20–843. June 23, 2022


The opinion of the Court issued today begins by reciting that Supreme Court precedent has established the right of “an ordinary, law-abiding citizen to possess a handgun in the home for self defense.”  District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). While the parties to this suit agree that there exists a similar right to carry handguns outside the home, petitioners argue, and the Supreme Court has agreed, that New York’s handgun licensing scheme, which requires that an applicant make a showing of “proper cause” for issuance of a license, violates the Second and Fourteenth Amendments of the U.S. Constitution.

 

Handguns have been regulated in New York since the early 20th century.  To obtain a license to carry a handgun outside the home, New York requires an applicant to demonstrate that special cause exists that makes a license necessary.  The applicant must show that he or she needs special self protection beyond that which is needed by the general community.  

 

No statute defines the “proper cause” which must be found to exist for a license to be granted, the undefined standard appears to be high, requiring particular threats or danger.  

 

Judicial review of denial of a license is limited.

 

Most states mandate licensing where minimal criteria are met.  New York and six other states confer discretion in licensing.  The most common reason for denial of a discretionary license is failure to demonstrate cause or suitability.  

 

Both petitioners here were awarded limited licenses that forbade carrying a concealed weapon in public spaces.  Unlimited licensing was denied before of a perceived failure to meet the “proper cause” standing by demonstrating a “unique need for self-defense.”  Slip Op. at 7.

 

As the United States Court of Appeals for the Second Circuit had previously upheld New York’s “proper cause” standard as advancing an “important government interest,” petitioners failed to obtain relief in the Second Circuit.

 

Today the Supreme Court rejected the line of cases subsequent to Heller and McDonald that have applied history and means-end scrutiny in Second Amendment cases. 

 

Today the Supreme Court announced that the Second Amendment presumptively protects conduct covered in the plain text of the Second Amendment. Regulation –no matter how important the government cause – is impermissible unless it is consistent with historical firearm regulation.  Slip Op. at 8. 

 

Post-Heller, post-McDonald analyses have looked at whether a regulation falls outside core Second Amendment protection, through historical analysis.  Regulations not within this scope do not enjoy Second Amendment protection.  Where there is ambiguity or insufficient history to inform consideration, however, the courts look to whether a regulation addresses activity close to the core Second Amendment right and “how severely the regulation burdens that right.”  Kanter v. Barr, 919 F. 3d 437, 441 (7th Cir. 2019). 

 

The “core” Second Amendment protection is self defense in the home, the Circuit Courts of Appeal have conceded, with some exceptions.  Outside the home, regulations, if not seen as “core,” require strict scrutiny. Non-core regulation needs to meet only intermediate scrutiny.  

 

In today’s case, the Supreme Court rejects this analytical scheme notwithstanding tha the parties agree to it.  Ensuring that any asserted interest reflected in the text of the Second Amendment, in accordance with history, is correct. Any further analysis need not apply means-end dissection but the regulating government entity must show that the regulation under consideration is historically sound, refecting “the outer bounds of the right to keep and bear arms.”  Slip Op. at 10.  

 

The historically informed textual analysis reflects the Court’s determination that the Second Amendment is not novel but that it represents codification of an existing right.  Historic support for any analysis may be found in legal scholarship; 19th century case law, Congressional and public discourse, and post-civil war commentary.  

 

The Supreme Court today emphasized that the Heller decision, informed by history, focused on the extremity of a ban on all handguns.  

 

The difficulty with judicial means-ends testing is that the enumerated rights within the Second Amendment removes decision making power from the government, including the courts.  Slip Op. at 14. 

 

With respect to enumerated rights, “the Supreme Court observed in Heller:   “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” Heller, 554 U.S. at 634.  Judicial deference to legislative determinations in applying means-ends analysis overlooks, and in so doing overrides, the means-ends analysis the people already made in enumerating a Constitutional right.  Slip Op. at 17. 

 

Today’s opinion, without equivocation, makes clear that regulation of enumerate rights requires the government to prove that any action with respect to those rights is constitutional.  This will ordinarily call on history.  

 

The New York State Pistol and Rifle Ass’n decision does not shirk from undertaking the review of history that the Court today commended to the inferior appellate and trial courts.  

 

The Court’s review prompted the Court to conclude that prior to the Civil War, carrying firearms in public was regulated, sometimes included surety statutes that incentivized safety, and sometimes restricted carrying firearms provided carrying was generally permissible.  

 

The Court’s review did not find a home in history for New York’s imposition of a “proper cause” requirement:  law-abiding, ordinary citizens have not, historically, been precluded from carrying arms in public for self-defense.  Slip. Op. at 51.  Only a very few, ‘outlier’ laws and decisions would support New York’s position, and such laws and decisions, sometimes limited by the very transitory nature of the territories in which they were found, were not enough to counterbalance the overarching ordinariness of carrying arms for self defense.

 

Emancipation brought with it the recognition that all freed slaves must be able to access all rights enjoyed by others, a recognition often staunchly resisted in practice.  Yet this struggle, in the Court’s view, only underscored the importance of being able to bear arms for self defense.

 

The Court’s review compelled its conclusion that the state failed to meet its burden of finding a tradition that would justify the ‘proper cause’ requirement:  “The Second Amendment guaranteed to all Americans the right to bear commonly used arms in public subject to certain reasonable, well defined restrictions.”  Heller, 554 U.S. at 581.  

 

Valid restrictions include considering the intent accompanying carrying arms, the manner of carrying, or exceptions to carrying, such as before government officials.  Other than the outliers noted by the Court, governments have not required applicants for licensure to demonstrate a need for self defense that exceeds that of the public generally.  Slip Op. at 62. 

 

The Court stressed that the right to bear arms in public for self defense is not inferior to other rights, nor is the Second Amendment subject to rules not applicable to other guarantees in the Bill of Rights. No requirement exists that a citizen must demonstrate to a government a special need to exercise any such right.  Slip. Op. at 63.  

 

The “proper cause” requirement violates the Fourteenth Amendment as it inhibits citizens form exercising Second Amendment rights, the Court has concluded.  

 

Justice Alito wrote a separate concurrence in counterpoint to the dissent, observing that the dissent seems to have wandered afar from the determination that central to the Second Amendment is the right to self-protection, within or without the home.

 

Recitations of catastrophic events or crimes involving guns is immaterial to the Court’s core concern in this case, nor is judicial arrogation of analysis of an enumerated right by means-end analysis of utility where the core principle is a guarantee against government intrusion, including intrusion by the courts.

 

Justice Kavanaugh, with Chief Justice Roberts concurred in the Court’s perception that the text, history, and tradition test iterated in Heller and McDonald is to be applied in determining whether  order to understand the  government regulation impedes exercise of the Second Amendment right to carry guns for self-defense. 

 

The two concurring justices noted that the instant decision does not disturb any mandatory licensing schemes.  Those remain intact.  In this case the discretion conferred by New York’s statute unconstitutionally impairs, by demanding special justification, exercise of a guaranteed right to self defense.  

 

Recognition of the right to self defense by carrying a gun does not prohibit recognition that some persons and some settings preclude possession and carrying of guns nor does it preclude imposition conditions on sale of weapons.  Finally, the two justices noted that the opinion concerns weapons that were in use at the time the Second Amendment was adopted. 

 

Justice Barrett concurred separately to note that the Court left open and unresolved proper approaches to post-ratification practices as they bear on original meanings of the Constitution.  Of equal significance is the Court’s failure to resolve in this case whether courts ought to rely on understandings of an individual right at the time of the Bill of Rights or at the ratification of the Fourteenth Amendment.  Readers ought not take the opinion to endorse “freewheeling” references to history across the 19th century in order to understand the original meaning of the Bill of Rights. 

 

Justice Breyer, with Justices Sotomayor and Kagan, have dissented, lamenting the gun deaths that plague the United States.  The Court ought not to have opined in this case without a trial, without an opportunity to develop a record that would illustrate the state’s compelling need for regulation in order to prevent gun violence, or without consideration of the dangers of guns.  

 

The dissenters examine not only the perceived need to regulate gun carrying in an effort to restrain gun violence but also suggest, through the presentation of other historical views, that the majority’s review may have been incomplete.  

 

20-843 New York State Rifle & Pistol Assn., Inc. v. Bruen (06_23_2022)