second amendment – Prof. Zachary Wolfe, Esq.

Oct 30/31 & early November cases

October 26, 2023case suggestions

The next block of arguments include cases on asset forfeiture, First Amendment requirements for social media accounts of government officials, the ability to trademark “Trump Too Small,” and whether the Second Amendment allows the government to prohibit possession of firearms by persons subject to domestic-violence restraining orders.

Monday, October 30

Today is an asset forfeiture case and specifically a question of procedural due process. In Culley v. Marshall, Culley’s son was driving her car when police caught him with drugs and drug paraphernalia and seized the car. Twenty months later, the court ordered the car returned to Cully pursuant to Alabama’s “innocent-owner defense.” (Facts summarized on Oyez.) She later sued, alleging that the delay constituted a due process violation. Both lower courts ruled against her and the Court has accepted review on “What test must a district court apply when determining whether and when a post-deprivation hearing is required under the Due Process Clause?” Asset forfeiture is a subject of intense public attention from time to time, but with many outstanding issues. The list of amici supporting Culley (light green on this link) make for some unusual bedfellows!

Just one case today.

Tuesday, October 31

Halloween has a pair of cases on First Amendment issues involving social media accounts and whether public officials can block constituents from posting comments. Lindke v. Freed involves a city manager who was sued for blocking someone who had left comments on his personal Facebook account (relating to his handling of COVID issues). He won at the 6th Circuit, which held that the First Amendment did not apply where the Facebook page was not part of Lindke’s official duties. O’Connor-Ratcliff v. Garnier involves two school board members who created Facebook and Twitter accounts for their campaigns and later updated them with their elected titles and used the pages to communicate about school district business. This time, the 9th Circuit found that these pages were subject to the First Amendment and the board members had violated the rights of residents they blocked. Amy Howe has a useful overview of the legal issues. Also, it’s notable that Netchoice has filed an amicus brief; this is the organization challenging Texas and Florida laws regulating social media companies (on which the Court recently granted cert. – more later!)

Expect argument in these cases to run long; I’m guessing at least 3 hours, maybe 4. The cases have not been consolidated for oral argument (the only two-argument day this block), plus the Solicitor General is participating in both cases. After the time is up for each arguing counsel, the Justices now each get an additional round of questioning (in order of seniority), which makes for a significant amount of time after the “argument clock” has expired. And today, that will be times 6 arguing counsel (petitioner, respondent, and Solicitor General, times two cases).

Wednesday, November 1

Does the First Amendment require the government to register a trademark of “Trump Too Small”? The law prohibits the Patent and Trademark Office from registering a mark containing a living person’s name without that person’s consent. 15 U.S.C. § 1052(c). But the Federal Circuit held that the First Amendment did not allow enforcement of that bar under these specific circumstances. There may be a substantial governmental interest in protecting private parties from having others trademark their names in most circumstances, but not when it is a criticism of a public official: “As a result of the President’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-President’s approach to governance, the government has no interest in disadvantaging Elster’s speech.” Interestingly, Public Citizen filed an amicus brief opposing registration, explaining that “registration would allow him to seek to prevent other members of the public from promoting their shared political antagonism using the same or similar words on shirts offered for sale.”

This is the only case set for argument today.

Monday, November 6

Today is an unusual issue of sovereign immunity under the Fair Credit Reporting Act. In Department of Agriculture Rural Development Rural Housing Service v. Kirtz, Kirtz sued the USDA for damaging his credit when it reported his account past-due even though it was paid off. In most cases, the federal government is immune from suit unless Congress has “unequivocally and unambiguously” waived immunity. The Fair Credit Reporting Act governs “persons” that it defines to include any “government or governmental subdivision or agency.” 15 U.S.C. § 1681a. The Third Circuit held that this was enough; “FCRA’s plain text clearly and unambiguously authorizes suits for civil damages against the federal government.” In so holding, the court acknowledged that “the [other] Courts of Appeals to have considered this issue are split down the middle.”

Tuesday, November 7

An extremely important Second Amendment case today: “Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.” The Fifth Circuit noted that “Rahimi was involved in five shootings in and around Arlington” in just two months, but nevertheless held that the law cannot survive the new standard announced in Bruen last year, that the law must be “consistent with the Nation’s historical tradition of firearm regulation.” This is obviously a very contentious issue and much has been written so I won’t add more except to recommend Amy Howe’s explainer and call attention to the perspective of March For Our Lives in its amicus brief.

I would expect long and early lines for this argument. See my lines info post.

Wednesday, November 8

The final case in this block of arguments, as Oyez explains, “involves the interpretation of education benefits under two different programs for veterans.” It is quite technical and fact-specific, so see their explainer for more.

The next block of arguments starts November 27.

November 1-3 arguments

October 29, 2021case suggestions

All the attention is on Monday’s arguments about the Texas anti-abortion law, but also see below for some interesting First Amendment and Second Amendment cases.

The Court’s audio page seems to be the best for listening in live. (Other options and info here.)

Monday, November 1 — SB 8

I try to focus this blog on cases you might not have heard enough about elsewhere — and the Texas anti-abortion law SB 8 is not in that category! So just a couple things that I’ll point out:

• There are two cases, not consolidated for argument purposes.
–So at 10:00, we’ll hear argument in Whole Woman’s Health v. Jackson, the case brought by doctors and clinics. The question in that case is “Whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”
–Then after that argument is concluded (probably around 11:30), we’ll hear argument in U.S. v. Texas on “Whether the United States may bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit Texas Senate Bill 8 from being enforced.”

• It’s in that second case that attorney Johnathan F. Mitchell has been given 10 minutes of Texas’s 30 minutes to argue on behalf of “intervenors” (Texas residents who support the law, but don’t represent the state itself). In the 5th Circuit, Mitchell’s brief argued that states are not required to follow Supreme Court holdings; that “federal and state political branches have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court’s.” Reply Brief, US v. Texas, No. 21-50949 (5th Cir. Oct. 14, 2021).

Tuesday, November 2

First up is a First Amendment case involving censure of elected officials — one that, especially in light of January 6, might be getting a lot more attention if it weren’t for yesterday’s cases taking so much focus. The plaintiff in Houston Community College System v. Wilson was an elected member of the HCC board. Harvard Law Review has a useful description of the legal issues; I’ll quote their summary of the factual summary: “After trustee David Wilson disagreed with the majority’s funding decisions, he publicly criticized his fellow trustees through automated phone calls, a website, and local radio, accusing them of failing to represent their constituencies. Adding to the tension, Wilson hired private investigators to surveil HCC and a fellow trustee at her residence. In response, the Board censured Wilson, denouncing his recent behavior as against HCC’s interests and violative of bylaws, including one about ‘respect for . . . collective decision-making.’ Wilson sued HCC under 42 U.S.C. § 1983, alleging that the censure violated his right to free speech.”

The second case today is a technical civil procedure matter involving cases that challenge arbitration awards. If interested, read the 5th Circuit opinion.

Wednesday, November 3

Just one case today, a Second Amendment issue involving New York’s “proper cause requirement” for concealed-carry licenses. See an overview here. Lots of attention to this one — New York State Rifle & Pistol Association Inc. v. Bruen has 87 amicus briefs! I recommend reading the Second Circuit ruling and a couple of briefs, all available here. For people interested in international law, note the brief from Amnesty International. And it’s always worth reading a brief from the NAACP LDEF.

[There are cases scheduled for Nov 8-10 as well, including a case involving the FBI about FISA and the states secrets privilege. But I wanted to get the above posted and will make a new post later on those cases.]

October 2017

August 10, 2017case suggestions

The new Supreme Court term begins with some very significant cases, including Trump’s Muslim travel ban and a profoundly important case involving partisan gerrymandering. I highlight some significant October cases below, and will add cases to be argued in future months as those schedules become available. (The Court does not schedule oral argument when it grants cert., but rather waits until written briefing is complete.)

One of the cases receiving a lot of national attention, Masterpiece Cakeshop (involving discrimination, in violation of state law, by refusing to prepare a cake for a same-sex marriage), is not likely to be heard until 2018. The Cakeshop’s brief is due on August 31, with the Colorado Civil Rights Commission’s brief coming October 23, followed finally by the company’s reply brief on November 22. So I would expect oral arguments in January or February, although it could be as early as December.

“First Monday,” October 2

The 2017 term opens with the issue of mandatory arbitration clauses. The Court has taken on a number of arbitration disputes in recent years, typically finding that the Federal Arbitration Act requires state courts to enforce these provisions against a variety of legal challenges. In these three consolidated cases (one hour total, for NLRB v. Murphy Oil, Ernst & Young v. Morris, and Epic Systems v. Lewis), the issue is whether arbitration clauses are enforceable when they infringe on rights protected under the National Labor Relations Act. Most of the briefing in these cases was completed before the 2017 Presidential Election, so there is an odd set of conflicting positions in briefs filed by the NLRB initially and by the Solicitor General after Trump took office.

The Court will also re-hear argument in the first of two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Sessions v. Dimaya, involves the vagueness of the terms “aggravated felony” and “crime of violence.” Dimaya was ordered removed from the US on the basis of two burglaries of unoccupied homes–no violence was involved, but it’s the kind of crime that can involve violence.

Tuesday, October 3

The first case today takes on the important but vexing issue of partisan gerrymandering, and deserves to be one of the most-watched cases of the term. In Gill v. Whitford, there does not seem to be any dispute that the Wisconsin legislature engaged in “packing” and “cracking” to concentrate Democratic votes in as few districts as possible and ensure they were small minorities in all other districts. The issue is whether this is the sort of political practice that is unconstitutional, and whether the courts can craft a set of criteria that allow for legal challenge without exceeding the judiciary’s role. A good summary is here, with a set of thoughtful positions collected here.

The second case today is the second of the two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Jennings v. Rodriguez, involves a detained immigrant’s right to post bond for pre-hearing release.

Wednesday, October 4

This is a criminal law day, with both cases coming out of Washington, DC. The first involves probable cause and qualified immunity. Under DC law, the crime of unlawful entry (trespassing) requires that the person knew or should have known that the entry is unlawful. In DC v Wesby, MPD officers responded to complaints about a loud party and arrested the partiers for unlawful entry even though they said they had permission from a person who was leasing the house. Police spoke with that person, who confirmed, but then called the owner, who said the lease had not begun yet. Lower courts held that there was not probable cause to believe that the partiers knew they did not have the owner’s permission. They also held that the police should have known that an arrest under these circumstances would violate the 4th Amendment, so were not entitled to qualified immunity. The Court has accepted review of both questions.

The second case, Class v. US, is a criminal procedure case in the context of gun laws. Mr. Class brought three guns from his home in North Carolina to Washington, DC, leaving the guns inside his car when he went to tour the US Capitol. He says he did not realize the parking lot was on Capitol grounds, where firearms are prohibited. A Capitol Police officer noticed something suspicious in the car, and Class was arrested upon returning to the car. He raised various Second Amendment and due process claims, but ultimately pled guilty after the trial court rejected those constitutional claims. He then appealed, but the appellate court held the guilty plea waived his right to appeal. The Court has granted cert on the question “Does a guilty plea inherently waive a defendant’s right to challenge the constitutionality of his conviction?” This case also had briefs filed by both the Obama and Trump administrations, although both sided against Mr. Class (first arguing that the Court should not grant review, and then arguing that it should reject his arguments).

(the Court does not hear cases on Monday, which is Columbus Day)

Tuesday, October 10

This will be one of the most highly watched arguments of the year–the “Muslim travel ban” cases, Trump v. International Refugee Assistance Project and Trump v. Hawaii. I don’t have anything to add to the extensive commentary on these cases…. Scotusblog has a useful introduction and then a series of thoughtful articles from a variety of perspectives. It is also worth reviewing a few of the amici briefs that have been filed in this case (especially those by the “Former National Security Officials” and the “Constitutional Law Scholars”).

The other case this morning, Hamer v. Neighborhood Housing Services, is a technical issue of appellate procedure.

Wednesday, October 11

The first case scheduled for this morning involves court jurisdiction for Clean Water Act cases, under the “Obama Water Rule.” I say scheduled because Trump has said he will rescind the rule, so the case may become moot and get removed from the docket.

The second case involves corporate liability under the Alien Tort Claims Act. The ATCA has received a lot of attention from the Supreme Court in recent years, after almost no attention for centuries (it was enacted by the first Congress, in 1789). Jesner v. Arab Bank is brought by victims of attacks in the West Bank and Gaza now living in the US, who claim that US branches of the bank were involved in laundering funds for Hamas. The Court has accept cert. on the question of whether corporations can be sued under the ATCA. Scotusblog has some good background.