Starting today I will be posting (likely behind a paywall in the future - because anyone interested enough in Fourth Circuit opinions to read them can likely expense it) a brief summary of published opinions issued by the United States Court of Appeals for the Fourth Circuit for the preceding week. It will be the type of general summary I often wish I had on hand - and, this is as good a way as any to make sure I do. If interested, I hope you find it helpful.
If it is helpful, I’d appreciate comments about what might be helpful in these updates - whether the identity of District Court judges in the snapshot or attorneys of record/on brief. And yes, I did omit the Towers case in this post because it is Insurance and a Acquisition and reading the opinion made my hair hurt.
U.S. v. Samuel Joseph (5/28)
Panel: Heytens (Decision), Bertner, Gibney
Issue: Evidence (suppression)
Facts: Denial of Motion to Suppress. Police officers in Charleston, West Virginia received a tip about drug activity taking place at an area motel. The officers went to the motel and conducted surveillance - witnessing only one person, Samuel Joseph, enter and leave a particular room. An officer knocked on the door to the room and there was no answer, but they could see through the open window blinds what appeared to be drug distribution materials. The officer left the scene and returned several hours later only to see Mr. Joseph carry a duffle bag out of the room and go to the McDonalds across the street.
The officer called for backup and entered the McDonalds to confront Mr. Joseph. Joseph saw the officer and quickly left the building through a second door near where backup had just arrived. Joseph was ordered to stop but instead fled on foot with the officers following and capturing him rather quickly.
The officers retrieved the duffle bag, finding both a knife and a hotel key (with white powdery residue), from Joseph after a pat-down search. Upon examination of the outside of the duffel bag, officers felt what seemed to be a handgun inside. The officers obtained a warrant and, upon a search, found drugs and firearms in the bag.
Standards: Clear error as to factual findings, De Novo as to law
Key Question: Fourth Amendment requirements
Decision:
“The Fourth Amendment only limits ‘searches and seizures,’ U.S. Const. amend. IV, and there was neither a search nor a seizure until Joseph was apprehended.” See California v. Hodari D., 499 U.S. 621, 629 (1991) (holding that a suspect who ran from police officers “was not seized until he was tackled”).
By the time Joseph was apprehended, there was reasonable, articulable suspicion of criminal activity - officers had seen the drug paraphernalia inside the motel room, they had witnessed Joseph’s furtive behavior in entering and exiting the room, and they saw him flee when he saw the police at McDonalds. After the officers apprehended Joseph, he consented to a pat-down and officers found a knife and motel room key covered with a white powdery substance, and a drug dog keyed on to the duffle. All provided the police officers with probable cause to arrest and get a warrant, which they did.
Joseph’s arguments to suppress and on appeal were rejected. Joseph argued that lack of bodycam footage and violation of police department policies, questions about the ‘tip,’ and fact he was arrested (placed in handcuffs) before the drug dog hit on the duffle all called the evidence into question. On appeal, the Court found no clear error (despite acknowledging that the officers’ failure to follow department policies with regards to bodycam use could be used to call their credibility into question). With regards to the arrest, the Court noted, “plac[ing] [a suspect] in handcuffs . . . automatically transform[s] [an] investigatory detention into a custodial arrest requiring probable cause,” United States v. Gist-Davis, 41 F.4th 259, 265 (4th Cir. 2022) and that Joseph had nothing besides the handcuffing to show he had been arrested.
Joseph, because no one who flees McDonalds at the sight of police was at their first or last rodeo, had other arguments related to a traffic stop in Parkersburg, West Virginia. Once again, a tip from the ubiquitous ‘known informant’ said that an out of town dealer was using a specific house as a base to distribute methamphetamine. Officers surveilled the house, saw two individuals get into a car with out-of-state plates (Joseph was riding shotgun), and pulled the car over after it made a minor traffic violation (funny how those cars you are looking to stop always do something wrong, isn’t it?).
Officers called for a drug dog and the dog arrived 15 minutes later for reasons that are well - you just need to read the case. It appears that while the stop was going on, a pedestrian walked by and poked his head into the car window to speak to the driver (who was in the midst of a traffic stop!) and that delayed things - and that delay was the issue on appeal, because after the drug dog got there, you guessed it, firearms, meth, and fentanyl, oh my!).
On appeal, Joseph argued that the traffic stop was delayed for too long in order to allow the drug dog to arrive, but whether a stop is unduly delayed is a question of fact and the lower court’s decision is reviewed for clear error.
The Fourth Circuit reviewed the record, explaining “that officers must ‘be reasonably diligent’ in completing traffic stops, and may not perform such stops ‘in a deliberately slow or inefficient manner, in order to expand a criminal investigation within the temporal confines of the stop.’ citing Rodriguez v. United States, 575 U.S. 348, 357 (2015) (first quote); United States v. Hill, 852 F.3d 377, 384 (4th Cir. 2017) (second quote). The Court found “no reversible error because the district court’s findings are ‘plausible in light of the record viewed in its entirety. citing Everett v. Pitt Cnty. Bd. of Educ., 788 F.3d 132, 145 (4th Cir. 2015) (quotation marks removed).
Affirmed.
Hanan Khashoggi v. NSO Group Technologies Limited (5/21)
Panel: Floyd (Opinion), Agee, Rushing
Issue: Personal Jurisdiction
Facts: Motion to Dismiss. After Washington Post Journalist Jamal Kashoggi’s widow, Hanan, brought suit against NSO Group Technologies (“NSO”) claiming that NSO’s Pegasus spyware program had been unlawfully installed on her electronic devices and used to monitor her data. Ms. Kashoggi alleged that through that monitoring of her data, agents of Saudi Arabia and the United Arab Emirates (“UAE”) were able to track the activities of her late husband, leading to his assassination after visiting the Saudi Arabian consulate in Istanbul, Turkey, on October 2, 2018. NSO moved to dismiss the lawsuit on several grounds, but the grounds germane to the appeal in the Circuit were that the District Court lacked subject matter and personal jurisdiction under FRCP 12(b)(1) and 12(b)(2).
Question: Did the Plaintiff adequately allege Personal Jurisdiction.
Standard: Jurisdiction: De novo. Underlying facts: Clear error
Rules (pertinent part):
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19 .
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.
F.R.C.P. 12(b)(1)-(2).
The District Court determined that it possessed subject-matter jurisdiction because, in providing that “foreign state[s] shall be immune from the jurisdiction of the courts of the United States,” the definition of “foreign state” includes “political subdivision[s] of a foreign state or an agenc[ies] or instrumentalit[ies] of a foreign state” but does not include commercial entities taking action of behalf of the foreign state.
See 28 U.S.C. §§ 1603-1604.
The Court determined however that it lacked personal jurisdiction over NSO and dismissed the suit.
Decision:
The Fourth Circuit upheld dismissal on the basis of lack of personal jurisdiction because there was no sufficient allegation of purposeful availment. Outside of the well-trod ‘contacts’ analysis, one of the increasingly common contacts arguments is of note - the passive surveillance or data capture argument. Kashoggi’s argument was that her data was captured while she was at her home in Virginia, that capture of the data gave rise to the suit, and thus, that capture of the data should be sufficient to establish specific jurisdiction. The Court said no on two fronts, first, NSO might have developed the program that captured the data, but NSO did not direct its activities at the forum state, rather Saudi Arabia and UAE had directed activities towards Virginia. Second, Kashoggi’s arguments regarding personal jurisdiction dealt with her contacts with Virginia (such as the fact she lived there), and the Court emphasized that, “the key issue in a specific jurisdiction case is the extent to which a defendant has purposefully availed itself of the forum, including by directing conduct at the forum.” Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 143 (4th Cir. 2020) (“As the Supreme Court has made clear . . . the connection between the defendant and the forum ‘must arise out of contacts that the defendant himself creates with the forum State.’”).
Affirmed.
US v. Edwin Brown (5/20)
Panel: King, Gregory (Decision), Rushing (Dissent)
Issue: Ineffective Assistance of Counsel
Facts: Appeal of Sentencing. Appellant had been convicted of four counts of possession with intent to distribute cocaine and one firearm count with each of the drug charges carrying a potential 20 year term and the gun charge a 10 year term. The total maximum punishment of Mr. Brown, if convicted on all counts, was 90 years in prison. Mr. Brown rejected a potential plea deal for a 10 year sentence and ended up receiving a 17.5 year sentence after a colloquy with the bench that went into some detail about what the bench was or was not bound to do. Mr. Brown appealed arguing that if his attorney had explained that his maximum exposure was 90 years, he would have accepted the plea.
Standard: De Novo
Key Question:
Do arguments that you would have accepted a plea agreement but for ineffective assistance of counsel require contemporaneous evidence that you would have accepted the plea if there had been effective assistance.
Decision:
Those arguing that but for ineffective assistance they would have accepted a plea do not need to show contemporaneous evidence that they would have accepted the plea. That requirement, detailed in Lee v. United States, 582 U.S. 357 (2017), deals with evidence needed when someone is arguing that they would have rejected a deal but for the fact that had ineffective of counsel. While the Tenth Circuit and the D.C. Circuit have decided that the ‘contemporaneous’ evidence requirement applies in both the accepted and rejected plea contexts,1 the Fourth joined the Fifth Circuit in deciding that “accepted and rejected pleas arise in different contexts and require distinct tests and therefore, Lee’s requirement for contemporaneous evidence is simply irrelevant” in the context of rejected pleas.2
Reversed and the Government is required to re-offer Mr. Brown the original plea terms.
Eileen Chollet v. Scott Brabrand (5/19)
Panel: Wynn, Harris (Decision), Heytens
Issue: Takings (COVID-19)
Facts: Motion to Dismiss. Plaintiffs of special needs children alleged that public schools transitioning to remote learning during the COVID-19 pandemic constituted a takings in violation of the Fifth Amendment to the United States Constitution. Specifically, special needs students are entitled to certain Individualized Education Programs pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 1400 et seq.. The Plaintiffs argued that moving to remote learning meant that their children were denied the Individualized Programs required by law and that denial constituted an unconstitutional taking of their children’s property interest in their education. The Defendant (the Superintendent of the Fairfax County Public School system), moved to dismiss on the grounds that Plaintiffs had failed to state a claim. The District Court agreed and dismissed.
Standard: De Novo
Key Question: Is the right to public education a property right for which the takings clause applies?
The Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Decision:
No. While public education is a property right protected by the U.S. Constitution, not all property interests are likewise covered by the takings clause. The important factor is the reference to private property int eh Fifth Amendment. The Court held that, “property interests that trigger Due Process Clause protections and private property under the Takings Clause are two different things.” Private property, according to traditional property law, is that property over which an owner has full rights of possession, control, and disposition. It is property over which you have free use, enjoyment, disposal, and the right of exclusion. Under any of those defining qualities, public education cannot be said to be a private property right. It is simply not a right one can sell or transfer. You have a property interest in your public education, but that interest is incompatible with private ownership.
Affirmed.
Lynne Kritter v. Brent Mooring (5/19)
Panel: Agee, Richardson, Berner (Decision)
Issue: North Carolina Summary Judgment standard in negligence cases
Facts: Summary Judgment. The Plaintiff’s deceased husband, a North Carolina Helicopter Pilot who owned and operated a cropdusting company, was killed after colliding with a low hanging wire on Defendant farm while engaged in spraying pesticide to combat a stinkbug infestation. The low hanging wire had been erected by the property owner who then leased the property to the farming operation. Plaintiff brought suit against the landowner, the farming operation which hired the Company, and the Company which hired the deceased to provide services alleging negligence under North Carolina law.3 After discovery, the parties brought cross motions for summary judgment - with the Court granting Defendant’s Motion and denying Plaintiff’s finding that neither the farm owner, farming operation, or Company owner Plaintiff’s husband a duty of care (to make the deceased aware of the presence of the low hanging wire). Plaintiff appealed.
Standard: De Novo
Key Question: Did the District Court err in awarding summary judgment to Defendants?
Decision: North Carolina case law is clear that summary judgment is rarely appropriate in negligence cases as ordinary negligence cases will almost always hinge on decisions regarding disputes of material fact that must be determined by juries, etc. The same holds true for contributory negligence defenses. Whether on questions regarding premises liability or undertaking liability, the Court held that all involved key questions of fact which could allow a jury to find for Plaintiff or Defendants depending on the evidence put forth at trial.
Reversed and Remanded.
James Brady v. City of Myrtle Beach (5/16)
Panel: Wilkinson (Decision), Rushing, Yoon
Issues: Takings, Due Process, Equal Protection
Facts: Directed Verdict during jury trial. There is an area of Myrtle Beach, South Carolina, known as ‘The Superblock,’ an area with bars and restaurants that experienced a surge in violent crime between 2013 and 2016 (after a few night clubs opened). James Brady, owned one of those clubs, Pure Ultra, an establishment that saw eight shootings in its immediate vicinity between 2015 and 2016. In response to the shocking amount of crime, the city of Myrtle Beach stepped up law enforcement in the area. In the course of that increased law enforcement and scrutiny of the businesses, business licenses for two clubs were revoked and a third business closed down due to lack of business. Owners of those three clubs sued the city, alleging that the increased law enforcement and decisions regarding their businesses were not due to increased crime but rather racial discrimination (that white-owned businesses experiencing crime were not treated the same way). The owners alleged violations of their rights under the Takings Clause, Due Process Clause, and Equal Protection Clause and that the City conspired to violate their constitutional rights in violation of 42 U.S.C. § 1985. During a jury trial, the District Court directed a verdict for the City on all counts, finding that the businesses did not have a property right in the right to operate their business (so no takings clause violation), and that the City acted within the legitimate bounds of state police power in taking action and there were thus no Due Process or Equal Protection violations. As to the civil conspiracy count, the Court found that there could not be a conspiracy because all of the alleged actors were government actors for the same principal and ‘one can’t conspire with himself.’ The businesses appealed.
Standard: De Novo
Key Question: What is a property interest.
Decision:
“[T]he activity of doing business, or the activity of making a profit is not property.” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999). Under South Carolina law, business licenses are not property interests either as, “an interest that depends totally upon regulatory licensing is not a property interest.” Mibbs, Inc. v. S.C. Dep’t of Revenue, 524 S.E.2d 626, 628 (S.C. 1999).
Both of those principles are deeply rooted in traditional property law. As the Court explained, “[s]ince the days of the Early Republic, it has been well understood that an individual does not have a property interest in “mere ‘privileges’” which “belong[] to private people only so long as the legislature allowed them to exist.” Caleb Nelson, Vested Rights, “Franchises,” and the Separation of Powers, 169 U. PA. L. REV. 1429, 1433 (2021); see also, e.g., Brick Presbyterian Church v. City of N.Y., 5 Cow. 538 (1826); Metro. Bd. of Excise v. Barrie, 34 N.Y. 657 (1866); Bos. Beer Co. v. Massachusetts, 97 U.S. 25 (1877).
The Court noted that while there would be property interests in either owning or renting a piece of property, neither interest would be implicated in the case because the City’s enforcement powers did not have a significant economic impact, “the interference with reasonable investment-backed expectations [was] nonexistent, and the character of the government regulation [was] ordinary.” “State laws from time immemorial have expected businesses to take basic measures to prevent crime on their premises. On top of that, the licensing laws enforced [with respect to the three clubs] only prevent[ed] appellants from using their land to operate a bar. That hardly ‘saps too much of the property's value’ such that it must qualify as a ‘taking.’” citing Sheetz v. Cnty. of El Dorado, 601 U.S. 267, 274 (2024).
As to Due Process and Equal Protection arguments, the Court agreed that either no evidence had been offered of discrimination or that ample process had been provided. Likewise, the Court agreed that the intra corporate conspiracy doctrine applied. “[A] corporation cannot conspire with its agents because the agents’ acts are the corporation’s own.” Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 352 (4th Cir. 2013).
Affirmed.
Though the Circuit split is not quite what it seems - those Circuits hold that in virtually all cases, the evidence that the plea and eventual sentencing were markedly different will suffice.
Anaya v. Lumpkin, 976 F.3d 545, 556 (5th Cir. 2020).
To further complicate the matter, the owner of the property passed away during the pendency of the litigation and Mooring, the property owner’s son, became estate representative and named party in the matter.