Archive for March, 2010
The story — let us all learn and profit by it — is in Hall v. Maal (Fla. Ct. App. Mar. 30) (en banc). The short version: If you don’t get a marriage license — because a week before the wedding, the groom told the bride “that they were not going to be able to get a marriage license because they had not agreed on the pre-nuptial agreement” — but go through the whole ceremony, live together as husband and wife, have children, and so on, you’re still not married, at least in Florida.
To depart from the requirement to have a license re-creates common-law marriage as abolished by section 741.211 ["No common-law marriage entered into after January 1, 1968, shall be valid, except that nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter." -EV] ....
[Both parties] were aware that to become married in Florida they were required to appear before the clerk of the court together and apply for and receive a marriage license.... Although there is little doubt that [the woman] genuinely wanted to be married, she could not have reasonably believed she achieved that aim after engaging in a wedding ceremony in full knowledge that neither [party] had ever applied for a marriage license....
“The parties were not in substantial compliance with Chapter 741.... [I]n order for there to be substantial compliance, there has to be some compliance. Some compliance would, at a minimum, entail the parties applying for and receiving a license.
Some judges dissent, arguing (among other things) that “The Legislature did not prohibit marriage without a license; instead, it created a type of registration to ensure certain criteria are met. The Legislature’s statute is consistent with the recognition that a ceremonial marriage between an adult man and an adult woman unrelated by blood should not be rendered invalid merely because the couple did not obtain a governmental license.”
in Forbes, by Daniel Freedman. And its date-stamped today, so I assume it’s supposed to be accurate (well, all but the part that pretty clearly isn’t).
An interesting thought about moot court, from Prof. Ken Gallant (which was posted to a lawprofs’ discussion list, and which I repost here with his permisison):
I sometimes coach moot court teams and participate as a judge in mooting teams. HOWEVER, I do believe that moot court is exceptionally unrealistic training for actual appellate advocacy in the common law system.
1. The records are grotesquely unrealistic. Effectively they are not records at all, in most cases. As a result[:]
2. Argumentation from facts as proven by evidence — the heart of most appellate cases — simply is not modeled by moot court.
3. For decades, the brief has been the most important part of the appellate advocacy process in the US. The moot court system vastly overvalues oral argument in its judging structure.
4. The moot court rules effectively make it impossible for the teaching function to occur at the brief writing stage. [There’s a good reason for this -- it’s called the epidemic of “cheating” that occurred some decades ago. And I certainly can’t figure out a way to allow the teaching function to occur here without risking the likelihood that arguments will actually come from faculty rather than students.] All the teaching value effectively goes into the oral argument stage.
In my view, there is a better way to teach appellate advocacy as it exists in our system. It’s called the Appellate Clinic, where students actually write briefs and present oral arguments in appellate cases. Many state supreme courts and a number of US Circuits have programs to encourage law school participation in this type of thing.
I haven’t closely followed the debates about Moot Court (though I know that my former boss, Judge Kozinski, has strong views on the subject), so I’m not sure how sound these criticisms are. But they struck me as valuable, and as a good starting point for further discussion. So if you’ve thought about Moot Court programs, please do post your reactions in the comments.
Kudos to President Obama for agreeing to open up some areas for off-shore drilling (though not nearly as much as we need). This appears to be a significant step in the right direction. In the summer of 2008, candidate Obama hinted that he might be willing to do this, but by inauguration last year he was not saying much that would give one hope for change on this issue.
One must still be cautious about whether there has been real change: the proof will come in the actual granting of permits to drill and open up new wells. I remember advocates of strict gun control arguing that “restrictive licensing” was more effective than a complete ban because restrictive licensing seemed more open to gun ownership or carrying, but in practice almost no one could get a permit. On drilling, time will tell.
UPDATE: According to Robert Costa, Sen. Bob Bennett says that the Administration’s openness on drilling is a sham:
While the administration may act like it is moving to the political center on energy, Bennett says that “tucked away in the language of its policy are countless actions that make it all the more difficult” for exploration. “Just look at what’s happening in Utah,” he says. “I’m trying to push Secretary Salazar in our direction. He keeps telling us that the administration is interested in natural gas, yet there is always some regulatory or legal hang-up that’s cited to keep anything from moving forward. They’re not serious about this. They want to implement onerous regulations. Same goes for coastal exploration.”
Megan McArdle has a good post on Congress’s decision to hold hearings about corporations’ disclosing their charges against earnings based on estimates of health care costs:
The Democrats, however, seem to believe that Generally Accepted Accounting Principles are some sort of conspiracy against Obamacare, and all that is good and right in America.
Here’s the story: one of the provisions in the new health care law forces companies to treat the current subsidies for retiree health benefits as taxable income. This strikes me as dumb policy; there’s not much point in giving someone a subsidy, and then taxing it back, unless you just like doing extra paperwork. And since the total cost of the subsidy, and any implied tax subsidy, is still less than we pay for an average Medicare Part D beneficiary, we may simply be encouraging companies to dump their retiree benefits and put everyone into Part D, costing us taxpayers extra money.
But this is neither here nor there, because Congress already did it. And now a bunch of companies with generous retiree drug benefits have announced that they are taking large charges to reflect the cost of the change in the tax law.
Henry Waxman thinks that’s mean, and he’s summoning the heads of those companies to Washington to explain themselves. It’s not clear what they’re supposed to explain. What they did is required by GAAP. And I’ve watched congressional hearings. There’s no chance that four CEO’s are going to explain the accounting code to the fine folks in Congress; explaining how to boil water would challenge the format.
Fair enough. But I’ll bet that there will both a few moments of effective Congressional demagoguing and a few moments when the corporate officials are successful in depicting that the hearings are a farce and that corporate accounting is a lot more sensible than government accounting.
Why bring in these corporate officials and ask them questions, when the members of Congress must know they won’t like some of the answers? I think the real reason for announcing the hearings is to intimidate other firms who have not yet taken a charge-off to get them to make only a small one — or none at all. These hearings, coupled with the phone calls from the White House complaining to the corporations about their disclosures, seem part of an effort to remind corporate America that their actions are not viewed positively by those who write and enforce the laws.
It’s not a threat, just a reminder . . . .
UPDATE: For some reason, the words of the eminent journalist Kent Brockman come to mind: “I, for one, welcome our new insect overlords.”
The AP reports that Steve Sarich — who “runs CannaCare, an organization that claims 7,000 members in the state,” which among other things “provides patients with marijuana clones or starter plants and delivers about 50 patients a week with usable marijuana” — has been told by the King County Sheriff’s Office that he may not buy a gun.
The federal law underlying the prohibition is 18 U.S.C. § 922, which bars possession of guns by (among others) anyone “who is an unlawful user of or addicted to any controlled substance,” and bars transfers of guns to such people. The sheriff’s office reported that the FBI’s National Instant Criminal Background Check System “informed us that possession of a medical drug card is sufficient to establish an inference of current use,” and that therefore the sheriff’s office can’t approve the transfer of a gun to Sarich.
Sarich had been trying to buy guns to replace ones seized by investigators who were investigating a burglary and attempted robbery at Sarich’s home; Sarich had shot one of the robbers. Sarich is also being investigated by the Sheriff’s Office “for potential violations of the state’s medical-marijuana law.” The sheriff’s office “insists he was making a handsome profit selling marijuana and starter plants and charging patients for attending the clinics,” and claims that Sarich has had many more plants than he is allowed to possess under state law. But the ostensible reason for the background check coming up with a no-sale result was the possession of the card, not any past conviction — Sarich has not been convicted of the drug crimes that the sheriff’s department is investigating.
Possession of marijuana remains a crime under federal law, notwithstanding any state law exceptions for medical use. The Second Amendment question, I take it, is whether people who violate this law can be barred from acquiring a gun even in the absence of a conviction for violating this law, based simply on an inference (often a plausible inference) that someone with a medical marijuana card is an unlawful user of marijuana.
Thanks to Mike Breeland for the pointer.
UPDATE: I’ve done a bit more research, and here’s what I found: United States v. Purdy, 264 F.3d 809, 812-13 (9th Cir. 2001), stated “that to sustain a conviction under § 922(g)(3), the government must prove ... that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm.” Likewise, in United States v. Herrera, 313 F.3d 882 (5th Cir. 2002) (en banc), the government conceded “that, for a defendant to be an ‘unlawful user’ for § 922(g)(3) purposes, his ‘drug use would have to be with regularity and over an extended period of time.’” I don’t see how one can infer from the possession of a marijuana card that the possessor is using marijuana “with regularity and over an extended period of time.” Maybe he is, but maybe he isn’t; I think something more besides the possession of the card would have to be shown.
Here, by the way, is the federal regulation, 27 C.F.R. § 478.11, defining “unlawful user”:
Unlawful user of or addicted to any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.
Again, I’m not sure one can infer from the possession of a marijuana card that the possessor is a current user, whose “unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct.” While it’s a fair bet that people with marijuana cards have used marijuana at some point, I’m not sure how the police can infer that they have used it “recently enough” to be “actively engaged” in the behavior.
With today’s decision in Padilla v. Kentucky, there are only three cases undecided from the Supreme Court’s October sitting: United States v. Stevens, 08–769 (the First Amendment challenge to the federal prohibition on depictions of animal cruelty); Salazar v. Buono, 08–472 (involving an Establishment Clause challenge to a cross used in a war memorial that Congress later transferred to a private entity); and Perdue v. Kenny A., 08–970 (involving whether a reasonable attorney’s fee award under a federal fee-shifting statute ever can be enhanced based solely on the quality of performance and results obtained when those factors already are included in the lodestar calculation). And there are two Justices remaining without a majority opinion from that sitting: the Chief and Justice Kennedy.
In light of Justice Stevens’ (sort of) anticipated authorship of Padilla, I’ll stick with the predicted authorships of my last post on the subject: Justice Kennedy will be writing an opinion invalidating the law in Stevens, the Chief will write Buono, and Justice Ginsburg will handle Kenny A (unless respondents lose, in which case Alito may get the nod). Which means either the Chief is performing a Rehnquistian damage-limitation role and holding his nose to write an opinion that he doesn’t really agree with (see, e.g., Dickerson v. United States), or the government has some good news coming to it. (Of course, that’s assuming there hasn’t be a change of votes post-conference.)
But again, that opinion is worth slightly less than you paid for it.
Today the Supreme Court released its opinion in Shady Grove Orthopedic v. Allstate Insurance. The case concerns whether state law can preclude a federal court from considering a class-action when the federal court is exercising diversity jurisdiction over a case that primarily raises state law claims. I’m sure others will have plenty to say on the import of the Court’s holding. For now I just thought I’d note the interesting line-up: Justice Scalia announced the judgment of the Court. His opinion was joined (in whole or in part) by the Chief Justice and Justices Stevens, Thomas, and Sotomayor. Justice Stevens wrote an opinion concurring in part and concurring in the judgment. Justice Ginsburg dissented, joined by Justices Kennedy, Breyer, and Alito.
Outstanding new film, premiered at the Cato Institute last week. Watch it here. Lots of useful advice for law-abiding citizens about how to properly exercise their rights to refuse searches that are not based on warrants or probable cause, and other efforts to trick citizens into waiving their rights.
On Monday, April 19, the Supreme Court will hear oral argument in this Term’s only significant Fourth Amendment case, City of Ontario v. Quon. Quon considers whether a city violated the Fourth Amendment by obtaining copies of stored text messages sent over a city-provided text pager used by a city employee. In an earlier post, I explained that the Petitioner’s merits brief made the stakes of Quon a lot lower than some had expected: The brief was drafted narrowly to avoid the question of whether the Fourth Amendment applies to text messages generally, and instead focuses specifically on how much notice is required for government employees to waive their rights.
I’ve now had a chance to look through the rest of the briefs in Quon, and I think the really interesting and important issue in the case is one that hasn’t received much attention before. While in the past I have focused on whether the government access violated the rights of the government employees who were assigned the pagers (here, Jeff Quon), I now think that the really juicy questions in the case involve whether the access violated the rights of the individuals with whom those employees were texting (here, Jerilyn Quon, April Florio and Steve Trujillo). That is, the really key question isn’t whether the government access violated the rights of the government employee who had received notice; Rather, it was whether the government access violated the rights of the folks on the other end of the communications. In this post, I want to explain why this is a tricky problem and what I think the Court should do with it.
I. The Problem
To understand the issue in Quon, you need to know a bit about how the Fourth Amendment applies to some earlier technologies. The Fourth Amendment ordinarily protects the contents of communications during transmission and delivery. The same rule applies to government postal mail, private delivery companies like UPS, and phone calls: As soon as the sender of the communication sends off the communication, both the sender and recipient enjoy Fourth Amendment protection in the contents of the mail during delivery. When the item reaches the recipient, the sender loses his Fourth Amendment protection: The Fourth Amendment rights are transferred solely to the recipient. In practice, this works pretty simply. A “sender” of a communication has rights until the communication is delivered, and a receiver has rights as soon as soon as the communication is sent. At least that’s what lower courts have long held.
This is an issue in Quon because Quon is a civil case brought by both the senders and the recipients of text messages over a city-issued pager. As I understand the facts, Quon is a city employee who was texting with three people — his wife Jerilyn; some other private party named Steve Trujillo; and city employee April Florio, with whom Quon was having an affair. All four are plaintiffs in the civil action. That means that the civil case has to address the claims of all four employees: Jeff Quon who was covered by the city policy, and then the others who were only communicating with Quon.
I suspect the Justices will think the rights of Jeff Quon are easily resolved. The parties agree that Quon’s rights are governed by O’Connor v. Ortega; O’Connor says that notice takes away the rights of government employees; and Quon had notice. So far, so good (and pretty easy). But what about the rights of the individuals who are not covered by the policy? Were their rights violated?
II. The Ninth Circuit’s Treatment of this Issue
This ends up being a really hard question because it’s incredibly important to privacy online and yet has hardly been addressed by any relevant authority. The Ninth Circuit’s treatment of this issue was pretty lousy, so it’s not only unhelpful on this point but actually rather misleading. Here’s what Judge Wardlaw said about it:
Absent an agreement to the contrary,Trujillo, Florio, and Jerilyn Quon had no reasonable expectation that Jeff Quon would maintain the private nature of their text messages, or vice versa. See United States v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996) (“[T]he maker of a telephone call has a reasonable expectation that police officials will not intercept and listen to the conversation; however, the conversation itself is held with the risk that one of the participants may reveal what is said to others.” (citing Hoffa v. United States, 385 U.S. 293, 302 (1966))). Had Jeff Quon voluntarily permitted the Department to review his text messages, the remaining Appellants would have no claims. Nevertheless, the OPD surreptitiously reviewed messages that all parties reasonably believed were free from third-party review. As a matter of law, Trujillo, Florio, and Jerilyn Quon had a reasonable expectation that the Department would not review their messages absent consent from either a sender or
recipient of the text messages.
This is a terribly confusing (and confused) paragraph. The first problem is that a reasonable expectation of privacy is not a likelihood that facts won’t come to the attention of the police, as I have explained in detail here and covered here at the blog. Indeed, the Supreme Court has made clear that contractual agreements to maintain privacy are irrelevant: A contrary rule would allow co-conspirators to circumvent the third-party doctrine by just making their co-conspirators promise not to disclose their secrets. More broadly, Judge Wardlaw is confusing the absence of a reasonable expectation of privacy with the distinct doctrine of third-party consent. If two people are sharing a space and both have privacy rights there, one person can consent to a search of the shared space over the rights of the other because he has “common authority” to consent, see United States v. Matlock (1974), not because a person lacks a reasonable expectation of privacy in the shared space. So unfortunately, that passage from Wardlaw’s opinion doesn’t seem very helpful.
III. Why This Issue Comes Up Only Rarely
What makes this issue extra hard is that it has rarely come up with earlier technologies involving the telephone or postal mail. In 99% of past cases, when someone communicates with an individual who lacks a reasonable expectation of privacy, the monitoring occurs either at the end point of the communication, when the other side clearly doesn’t have Fourth Amendment rights, or else when there is a real-time communication over which one party can provide third-party consent. For example, if A sends mail to Prisoner B, the mail is searched when it arrives at the prison: The mail has been ‘received,’ the sender’s rights are extinguished, and opening the mail doesn’t violate anyone’s rights. Alternatively, if C is an undercover informant and agrees to speak on the phone to D and have the call taped by the government, D has consented under a third-party consent theory. Either way, the consent of one party to the communication suffices.
Text messages are different, though. As I understand the technology here, individuals were sending texts to Quon through the Arch Wireless service that stored copies of the texts in the course of delivery. But it seems pretty clear that Arch Wireless was not the recipient of the communications: Arch Wireless was making copies in the middle of transmission on their way to and from the plaintiffs, but they weren’t actually the origin or destination point. So that seems to raise quite a different issue: If you’re communicating with someone who has no privacy rights, do you have Fourth Amendment rights in the stored copies of your communications generated in the course of delivery?
This issue has come up only sparingly in the past. The only case that comes to mind is a Fourth Circuit case on phone calls with those using cordless phones. After holding that government monitoring of a cordless phone call doesn’t violate the Fourth Amendment rights of the cordless phone caller, the court then concluded that it doesn’t violate the rights of the person communicating with the the cordless phone caller. See United States v. McNulty, 47 F.3d 100, 104-106 (4th Cir. 1995) (arguing that a person who uses an easily monitored technology like a cordless phone is an unreliable communicant like a government informant, so communicating with a cordless phone user whose communications are being monitored is like communicating with an informant who has agreed to have his communication monitored). But that’s only one case, and I think its reasoning is very much open to question.
IV. The Arguments of the City of Ontario and the United States as Amicus Curaie
The Petitioner, the City of Ontario, and DOJ, as amicus, have each tried to respond to this tricky problem. Their solutions strike me as quite unconvincing.
This is a pretty bad argument, I think. First, I have no idea how someone who sends a text message to a city employee is supposed to have such a detailed understanding of both Fourth Amendment law and the city’s employment policies that they would know the recipient won’t have Fourth Amendment rights in the message. Fourth Amendment rights in new communications networks are a major question mark. But the City’s argument seems to be that individuals who texted Quon several years ago should have known that the Ninth Circuit would be wrong in 2008 when it ruled that Quon did have such rights. Seems like a pretty silly argument to me.
More broadly, even if the others did somehow know that Quon didn’t have any privacy rights when he received the messages, it’s not clearly how that matters for Fourth Amendment purposes. Is that some sort of consent to pre-delivery inspection of the messages, like you might have when you drive on to a military base and are held to have consented to an inspection for your car? If so, that’s a fact question, and there are no relevant facts about this in the record.
DOJ’s amicus brief offers a somewhat better argument, see pages 28-32, although it’s a bit confusing — and whichever of the possible arguments it is making, I don’t think I find it persuasive. I see two possible arguments on this question in DOJ’s brief. One argument is that Arch Wireless is the city’s pager service, so the arrival of the text messages at the server of Arch Wireless is essentially delivery of the message. As a result, the rights of the senders extinguished when Arch Wireless took over delivery of the communication. The second argument is more of a Rehberg. v. Paulk argument: When the text messages arrived on Quon’s machine, the senders lost privacy rights in copies generated in the course of delivery — or at least copies generated by the recipient’s provider.
I don’t think the first of these arguments works because arrival of the texts at Arch Wireless was not arrival at their destination: It seems pretty clear to me that the texts were still in transit when they were copied. And I don’t think the second argument works for all the reasons why I found Rehberg unpersuasive.
V. What Should the Supreme Court Do?
So what should the Supreme Court do with this issue? My own view is that the Supreme Court should decline to address the question. In my view, it’s misguided for the Court to try to address such a complicated and important question of Fourth Amendment law that was addressed by one paragraph in the opinion below and gets only short treatment at the tail end of the briefing by the parties. It’s a recipe for disaster to try to answer the question in this case. The Court should approach this question with caution and not answer what it can’t answer well.
Part of the problem is that the issue is incredibly important to how the Fourth Amendment applies to new technologies, and we don’t have any precedents at all in this area to serve as reference points. The Supreme Court has never directly addressed the analogous issues for phone calls and postal letters, so there isn’t Supreme Court precedent to build on to see how these principles should apply to text messages. Indeed, it’s not clear if the Fourth Amendment applies at all to text messages, e-mails, and other electronic network communications — is the Court supposed to answer that first, even though no one has bothered to brief it?
To make matters worse, Quon is being argued in late April, near the end of the Term, when there is very little time amidst all the other major cases to overcome these limitations and really get it right before opinions are out at the end of June. Finally, the question of rights in communications with those who have no Fourth Amendment rights is a hugely important question with global communications networks: For example, this question has come up before here in debates on the NSA’s powers to monitor international communications. It seems like a bad idea to try to answer this very thorny question in this case.
In my view, the Court should conclude that Jeff Quon had no Fourth Amendment rights because of the policy but then come up with a way not to answer the question of whether the others had their rights violated by the access. As a procedural matter, I’m not sure of the right way to do that. The wisest course may be to DIG the case: It was a really weird grant in the first place, as I wrote when the case was granted, and it now it turns out that the only hard issue is a novel question with tremendous future importance that is treated as an afterthought to the lower court opinion and by the briefing. The best option may be to make like Monty Python’s King Arthur and “Run Away! Run Away!,” waiting for a future case to address these issues rather than jump into them now.
From the Census site:
|1||New York city, NY||33,131|
|2||Philadelphia city, PA||28,522|
|3||Boston town, MA||18,320|
|4||Charleston city, SC||16,359|
|5||Baltimore town, MD||13,503|
|6||Northern Liberties township, PA||9,913|
|7||Salem town, MA||7,921|
|8||Newport town, RI||6,716|
|9||Providence town, RI||6,380|
|10t||Marblehead town, MA||5,661|
|10t||Southwark district, PA||5,661|
|12||Gloucester town, MA||5,317|
|13||Newburyport town, MA||4,837|
|14||Portsmouth town, NH||4,720|
|15||Sherburne town (Nantucket), MA||4,620|
|16||Middleborough town, MA||4,526|
|17||New Haven city, CT||4,487|
|18||Richmond city, VA||3,761|
|19||Albany city, NY||3,498|
|20||Norfolk borough, VA||2,959|
|21||Petersburg town, VA||2,828|
|22||Alexandria town, VA||2,748|
|23||Hartford city, CT||2,683|
|24||Hudson city, NY||2,584|
An unfortunate story, detailed in Revell v. Port Authority (3d Cir. 2010): Gregg C. Revell was flying from Salt Lake City to Allentown, Pennsylvania, via Minneapolis and Newark. He had an unloaded gun legally checked in his luggage, which was supposed to meet him at Allentown.
Supposed to. In fact, the flight to Newark was late, so Revell missed his connection. He booked himself on the next flight, but the airline changed those plans. He was supposed to get on a bus, but his luggage didn’t get on the bus with him. He found the luggage, but the bus had left, so he had to stay overnight at the hotel, with his luggage.
Aha! That’s where the crime came in. The Firearms Owners’ Protection Act protected Revell on the plane, and would have protected him on the bus. But the moment the luggage came into his hands or otherwise became “readily accessible” to him outside a car — here, when he got the luggage to go to the hotel, but it would have also happened if he had gotten the luggage to put it into the trunk of a rental car — he violated New Jersey law, which requires a permit to possess a handgun (and which bans the hollow-point ammunition that Revell also had in a separate locked container in his luggage). Revell was arrested when he checked in with the luggage at Newark Airport, and said (as he was supposed to) that he had an unloaded gun in a locked case in his luggage; he then spent four days in jail until he was released on bail. Eventually the New Jersey prosecutor dropped the charges against him, but Revell didn’t get the gun and his other property back until almost three years later.
Revell sued, and lost; the Third Circuit concluded that once he took the luggage in hand in New Jersey, it became “readily accessible,” and the FOPA immunity was lost. And this is indeed a sensible reading of the statutory text:
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.
So what do you if this happens to you?
Stranded gun owners like Revell have the option of going to law enforcement representatives at an airport or to airport personnel before they retrieve their luggage. The careful owner will do so and explain his situation, requesting that his firearm and ammunition be held for him overnight.
[Footnote 18:] Of course, this suggestion leaves unanswered the question of what the gun owner should do if the law enforcement officers decline to assist him. It may be hoped, however, that officers will not compound a blameless owner’s problems in that way.
Hope does spring eternal, but I suspect that airport police and airport staff aren’t going to be willing to hold people’s luggage for them overnight, especially when it contains a gun. And of course the airport police or staff would then have to personally check in the luggage for the owner, since the owner can’t take it in hand without losing the FOPA immunity.
So watch out when you travel with your gun in checked luggage. If your flight gets routed to a different city, or you have to stay overnight at one of the stops, you could be arrested. Or if you drive across country but your car breaks down, and you need to move the luggage to another car, you could likewise be violating the law (though you’d be less likely to be caught, since you have no obligation declare your gun when you switch cars the way you do when you get on a plane). FOPA gives you a good deal of protection on your travels — but, as Mr. Revell learned, not complete protection.
I mean this in less snarky way than the title of this post suggests, but I continue to be surprised by some of what worked its way into the health care reform bill.
Today the Supreme Court held 7-2 in an opinion by Justice Stevens that 31 U.S.C. 3730(e)(4)(A), a provision of the False Claims Act that bars qui tam actions that are based upon the public disclosure of allegations of fraud against the government in (among other things) “a congressional, administrative, or [GAO] report, hearing, audit, or investigation,” includes state and local administrative hearings, audits, or investigations, and not just federal ones. But tucked away in a footnote is notice that the holding of the case (Graham County Soil & Water Conservation District v. United States ex rel Wilson, 08-304), will have limited application going forward:
On March 23, 2010, the President signed into law the Patient Protection and Affordable Care Act, Pub. L. 111–148, 124 Stat. 119. Section 10104(j)(2) of this legislation replaces the prior version of 31 U.S.C. §3730(e)(4) with new language. The legislation makes no mention of retroactivity, which would be necessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tam suit. See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 948 (1997).
The health care reform law changes the relevant text to provide for dismissal of a qui tam action based on a public disclosures “in a congressional, [GAO], or other Federal report, hearing, audit, or investigation.” Thus, it essentially overrules today’s decision. The amendment also eliminates the old language, under which a court would not have jurisdiction over a case based on a public disclosure, to simply state that a court shall dismiss an action, unless opposed by the Government, if substantially the same allegations were publicly disclosed.
The full text of the revised language is available after the jump. A redline reflecting the change is available here.
Critics of the change note that the amendments “are not limited to FCA actions against health care companies,” but it’s not unusual for Congress to make a change apply across-the-board even if it is nominally motivated by concern in a particular area. (Think of the USA PATRIOT Act, which, unless you believe the conspiracy theorists, was prompted by terrorism investigations but which amended provisions of general applicability.) But the case before the Court involves flood cleanup, not health care fraud. The amendment to the FCA is germane to health care reform in that it makes it easier to maintain a qui tam action against an entity that allegedly has defrauded the government. But the provision still looks a bit like the sort of provision that gets attached to must-pass legislation as a favor to a powerful constituency, rather than something that Congress considered directly relevant to the subject of the legislation.
UPDATE: Both because I assume a high degree of background knowledge from our readers, and because I’m too lazy to provide much background, I don’t explain much about the qui tam mechanism. One of the posts in the comment thread gives a helpful primer for people who aren’t already steeped in this area of the law. It’s a fascinating area, with an interesting historical pedigree and which raises juicy separation-of-powers issues.