Rocky Mountain Appellate Blog

Heller: Back to the Drawing Board

In short, it appears that the Tenth Circuit will have to rewrite much of its Second Amendment jurisprudence.  In U.S. v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004), the Tenth Circuit held that “[d]rawing on Miller, we repeatedly have held that to prevail on a Second Amendment challenge, a party must show that possession of a firearm is in connection with participation in a ‘well-regulated’ ‘state’ ‘militia.’”  Similarly, in U.S. v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001), the Tenth Circuit held that “a federal criminal gun-control law does not violate the Second Amendment unless it impairs the state’s ability to maintain a well-regulated militia.”  The court noted that “[t]his is simply a straightforward reading of the text of the Second Amendment.”  These cases and the legal arguments underlying them are obviously inapplicable after Heller. [Notably, however, neither of these cases yet have so much as a yellow flag attached to them by Westlaw.  Either Westlaw is falling behind updating its system or Heller’s approach to Miller is such that it did not trigger whatever system Westlaw uses to monitor reversals]. Indeed, Heller holds that Miller “positively suggests, that the Second Amendment confers an individual right to keep and bear arms.”  Heller goes on to hold that “[a]s for the ‘hundreds of judges,’ . . . who have relied on the view of the Second Amendment Justice S[tevens] claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.”  [This seems to be unnecessarily harsh criticism of much of the federal judiciary, particularly given the repeated refusal of the Supreme Court to clarify Miller and the obligation of the courts to apply Supreme Court precedent].

It is going to be an interesting few years for Second Amendment litigation. 

Heller Case Comes Down

The Heller decision was issued this morning and can be found here.  One critic of the decision is calling it "frightening" (Mayor Daley needs to get a grip) while cooler heads point out that "it leaves a lot for another day."  I think there is a handful of lawyers who will now be making a pretty good living at Heller litigation.

Tenth Circuit Again Addresses Qualified Immunity

In Wilkins v. DeReyes, the plaintiffs alleged that the defendants had coerced false testimony that the plaintiffs were involved in a brutal quadruple murder.  The District Court denied the defendants’ motions for qualified immunity, and the defendants filed an interlocutory appeal.  One of the major issues before the Tenth Circuit was whether the plaintiffs presented sufficient evidence to create a fact question as to the alleged fabrication of evidence.  The plaintiffs identified “numerous statements by the officers, at times threatening to harm [the witnesses] or their families and at other times promising help and safety.”  If the officers had mistakenly coerced statements, perhaps because they did not realize the effect they were having on the witnesses, they might still have been entitled to qualified immunity for reasonably but mistakenly relying on those statements.  However, the Tenth Circuit concluded that because the issue required an analysis of the “meaning and purpose of the officers’ statements” to the witnesses, the Plaintiffs had raised a fact issue.

Petitioners' Merits Brief Filed in Pearson v. Callahan

This past spring I noted the Supreme Court's grant of certiorari in Pearson v. Callahan, in which the petitioners challenge the Tenth Circuit's decision last summer not to extend the consent-once-removed doctrine (under which there is no Fourth Amendment violation if the undercover person is a police officer) to an undercover informant.  In granting cert, the Supreme Court added its own issue for the parties to address:  whether Saucier v. Katz -- the Supreme Court decision setting forth the two-step process for determining whether qualified immunity applies -- should be overruled.

Petitioners filed their merits brief on June 6, and it's available here, courtesy of the Volokh Conspiracy.  (Orin Kerr at GW Law School, a contributor to the Volokh Conspiracy, is on the brief along with Peter Stirba, who represented the defendants before the district court and Tenth Circuit.)  Petitioners' suggested approach to Saucier v. Katz is interesting.  They suggest that Saucier either should be overturned as applied to all Fourth Amendment civil lawsuits, or that it should be narrowed to apply only to Fourth Amendment civil lawsuits that do not arise in the context of motions to suppress.  As to the latter suggestion, I think the point is that the two-step Saucier inquiry is designed to ensure that courts are forced to develop areas of constitutional law instead of always skipping forward to the qualified immunity analysis, but because motions to suppress are constantly being decided on the criminal side, the concern about developing a reliable body of law is seriously diminished.

A Discourse on Substantive Due Process

I've always found substantive due process a somewhat confusing and difficult concept; the very phrase "substantive due process," it seems to me, is inherently contradictory.  However, a recent decision of the Tenth Circuit, Seegmiller v. LaVerkin City, is a terrific exposition on the subject.

The facts of the case are interesting enough, if you're at all interested in scandals -- it suffices to say that the case involves a SWAT team, an interdepartmental affair, and a husband scorned.  The more interesting part of the decision was the Tenth Circuit's discussion of the "two strands" of substantive due process doctrine:  one strand protects against an individual's fundamental liberty interest, while the other protects against the exercise of power that "shocks the conscience." 

The district court concluded that the "shocks the conscience" strand applies only to executive action, while the "fundamental liberty interest" strand applies to legislative action.  The Tenth Circuit, however, rejected this distinction.  Although the court acknowledged that there is "some precedential support" for the distinction, the court nonetheless held that "an overly rigid demarcation between the two lines of cases is neither warranted by existing case law nor helpful to the substantive analysis":

[A]s we see it, the "shocks the conscience" and "fundamental liberty" tests are but two separate approaches to analyzing governmental action under the Fourteenth Amendment.  They are not mutually exclusive, however.  Courts should not unilaterally choose to consider only one or the other of the two strands.  Both approaches may well be applied in any given case.

Cross Border Cash

Cuellar was pulled over in a traffic stop in South Texas and officers discovered $81,000 hidden under the floorboards of his VW Beetle. Cuellar was charged with attempting to transport the proceeds of unlawful activity across the border under 18 U.S.C. § 1956(a)(2)(B)(i), which required proof that Cuellar knew the transportation was designed “to conceal or disguise the nature, the location, the source, the ownership, or the control” of the money.

Cuellar was convicted at the district court level, but a panel of the Fifth Circuit held that the statute required a showing that the purpose of the transportation must be to conceal the money, not simply that the money was concealed during transportation.  In other words, under the Fifth Circuit’s reading, “the transportation must be undertaken in an attempt to create the appearance of legitimate wealth.” On appeal en banc, the Fifth Circuit reinstated the conviction, and the Supreme Court granted cert.

In Cuellar v. United States, No. 06-1456, the Supreme Court held that “[a]lthough we agree with the Government that the statute does not require proof that the defendant attempted to ‘legitimize’ tainted funds, we agree with the petitioner that the Government must demonstrate that the defendant did more than merely hide the money during its transport.”  Instead, the government was required to prove that the defendant attempted to transport funds across the boarder; knew that they represented the proceeds of unlawful activity; and knew that the transportation was designed to conceal or disguise the nature, location, source, ownership or control of the funds. The Supreme Court thus reversed, noting that in this case, the evidence suggested that the secretive aspects of the transportation were employed to facilitate the transportation but not necessarily that secrecy was the purpose of the transaction.

Bankruptcy Law Applied to False Hit-and-Run Claim

At issue in In Re Berrien, No. 07-1294, was whether damages caused by a false hit-and-run accusation can be discharged in bankruptcy. Not surprisingly, the answer is no.

Hoping for financial gain the debtor and his wife, the Berriens, fabricated a hit-and-run accident. As a result the target of the fabrication, an eighteen-year-old high school student, was subject to criminal prosecution and faced potential deportation. After the targets'€™ parents, the Tylers, spent approximately $96,000 in her defense, the criminal cases were dismissed. The Tylers also incurred significant expenses defending two civil suits: a subrogation suit from the debtor's wife'€™s insurance company and a suit by the debtor's wife individually.

When their prosecutions and civil suits were finally resolved, the Tylers, not surprisingly, filed their own suit against the Berriens. Mr. Berrien filed for bankruptcy before the case could be tried, and the Tylers then intervened in the bankruptcy proceeding to argue that Mr. Berrien'€™s debt for the damages he had caused the Tylers should not be discharged. The bankruptcy court found that the expense of defending against the criminal charges, as well as lost business opportunity and emotional distress damages (for which the parents received nominal damages) were not dischargeable under 11 U.S.C. § 523(a)(6), covering willful and malicious injury.

The Tenth Circuit affirmed.  In so doing, the court rejected the audacious claim that the parents could not recover the cost of defending their daughter because they were "merely volunteers, with no legal obligation whatsoever to pay for their eighteen-year-old daughter'€™s legal expenses." The Court noted that the parents had an interest in defending the daughter because a conviction may have collaterally estopped them from arguing her innocence in the civil suits against them and because they were exposed to potential individual liability as their car was uninsured at the time of the alleged accident.  The court also noted that the Tylers had independent claims that they were attempting to vindicate in the bankruptcy court: the right to be free from intentional inflection of emotional distress and abuse of process. 

10th Circuit Reverses Conviction Based on Trial Court's Exclusion of Character Evidence

United States v. Yarbrough involved a Tulsa police officer charged with obstruction in the investigation of a drug and gambling ring.  When the DEA and FBI initiated an investigation targeting a close friend of Yarbrough's, it appears that Yarbrough told his friend of the investigation, and even gave his friend advance warning of a search warrant. 

At trial, Yarbrough sought to introduce evidence of his status as a law-abiding, trusted police officer.  The district court excluded the evidence, holding it was irrelevant because the question did not concern the existence of certain historical facts (i.e., whether Yarbrough actually advised his friend of the investigation and the search warrant), but whether Yarbrough's actions were done with the requisite mens rea.

The Tenth Circuit reversed, holding that there is no such distinction in Fed. R. Evid. 404(a)(1).  In fact a nearly 50-year-old Tenth Circuit decision, United States v. Peterson, 268 F.2d 87 (10th Cir. 1959), makes clear that character evidence is relevant even when the sole issue before the jury is whether the defendant undertook undisputed acts with the requisite mens rea.

From a footnote in the court's opinion, it appears that the government completely botched the analysis of the issue, having merely cited Fed. R. Evid. 608(a), which the court deemed utterly irrelevant.  Not only that, but the court acknowledged that Yarbrough's conviction could be reversed only if the district court's error was not harmless (i.e., it affected Yarbrough's substantial rights).  Although the burden of demonstrating harmless error lies with the government, in this case the government failed to even address that standard.

Mind Control and the Tenth Circuit

The plaintiff in Jamison v. Costco Wholesale, No. 07-4278, presented a unique theory of liability.  She alleged that her employer (who, interestingly, is not a defendant in the lawsuit) “attached her to an ‘integrated communication system’ that allowed others to read her thoughts and control her thoughts, behaviors, and bodily functions.”  The defendants then allegedly used this system to control her in various ways such as causing her to act in a racially stereotyped manner and (and I think this is the heart of the complaint) canceling her Costco membership without justification. Notably, because the plaintiff “is being held on the system, she is unable to obtain physical evidence proving its existence.”

The question, of course, is what to do with such a complaint.  One of the most appealing aspects to me of the American justice system is its commitment to taking seriously every allegation brought before it.  One cannot literally be “laughed out of court.”  Rather, the plaintiff received a hearing before a magistrate, the district court, and the Tenth Circuit. 

Because the Plaintiff filed her complaint in forma pauperis, the court could dismiss it if it found that “the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.”  The Tenth Circuit found that the complaint in this case met that standard, and upheld its dismissal. 

A Victory for Website Parodies

In a decision issued yesterday, the Tenth Circuit issued an opinion that gives website parodies (here's a good example, which the court cited in a footnote) a little breathing space.

Utah Lighthouse Ministry (UTLM) v. Foundation for Apologetic Info. & Research (FAIR) involved a trademark infringement claim against FAIR, a volunteer organization that responds to criticism of the Church of Jesus Christ of Latter-day Saints.  FAIR operated a parody website spoofing the anti-Mormon efforts of the Utah Lighthouse Ministry, although it did not have a disclaimer stating that it was not associated with UTLM.  The parody website contained no advertising and offered no goods or services, but it did contain several external hyperlinks, once of which was a link to FAIR's homepage.  FAIR's homepage, in turn, contains a link to its on-line bookstore.

Prior to the UTLM decision, the Tenth Circuit had not examined the issue of when hyperlinking renders an otherwise noncommercial website subject to an infringement claim under the Lanham Act.  The court essentially adopted a case-by-case approach utilized by the Ninth Circuit in Bosley Medical Institute v. Kremer.  Because the parody website contained critical commentary about UTLM, and because the links to the FAIR website were to its homepage and not directly to its bookstore, the court held that the "roundabout path" to the advertising or commercial use of others is simply "too attentuated" to invoke the trademark protections of the Lanham Act.

Interestingly, the opinion mentions, without further comment, that the defendants shut down their parody website and began to transfer any related domain names to UTLM in April 2005, the very same month UTLM filed its complaint -- leading one to wonder why this lawsuit wasn't settled more than three years ago.