GREENER PASTURES? THE EFFECT OF THE FAMILY FARMER BANKRUPTCY CLARIFICATION ACT OF 2017

This post is written by Associate Editor Amy Robinson. Opinions and views expressed herein are those of the writer alone.

 

During the 1980s the American farming community was under much financial duress as interest rates skyrocketed and farm operations which had formerly been profitable were driven out of business.  Variable and adjustable interest rates to farmers were heavily blamed for the disarray that took place in American agriculture during this time period.  Farmers watched as their cost of production would literally triple overnight due to the increased cost of capital funding because of interest rate volatility.  This paved the way for commercial banks to more foreclosures and acquisition of assets than possibly ever before.

One avenue of relief for farmers affected by this financial crisis was to consider a Chapter 12 bankruptcy filing.  Chapter 12 of the Federal Bankruptcy Code is specific to “family farmers” and “family fishermen.”[1]  In order to qualify for this type of relief, a family farm must: (1) be engaged in a farming operation (2) have total debts of his or her operation not exceeding $4,153,150; (3) at least 50% of the total debts that are fixed in amount must be related to the farming operation; and finally, (4) more than 50% of the gross household income for the preceding year must come from the farming operation.[2]  In addition to these requirements, a corporate farm must meet other caveats to qualify, including being a privately-held corporation without publicly traded stock.[3]  The upside to filing Chapter 12 as opposed to Chapters 11 or 13 is its specific tailoring to farming operations.  By comparison, Chapter 11 is much more geared towards large, corporate businesses, while Chapter 13 is friendlier to smaller, wage earner reorganizations.[4]

Filing bankruptcy under Chapter 12 during the farm crisis could have been key for leveling out the agricultural economy during that time period.  However, although many farm families were open and willing to the thought of Chapter 12 and liquidation, often times they were unable to go down this path.  Farmers who liquidated assets by selling would be subject to huge tax ramifications via the federal income tax and the capital gains tax.[5]  Even in Chapter 12 bankruptcy the tax bills would still inevitably be passed on to the already distressed farming operation.  Both farmers and their lenders were in a bind with very limited options.  Even if the lender foreclosed on the property (e.g., by acquiring real estate, equipment, etc.) the farmer-owner would still be subjected to the tax burden.  There seemed to be no good solution.  Many agriculture economists would subsequently argue that the government’s lack of stepping in could be a factor to how long and drawn out the 1980s crisis really was.  If there had been some viable solution for farmers during that time-period, things may have been drastically different for the economic recovery time.

Fortunately in 2005 Congress recognized this issue and amended Chapter 12 procedures in an attempt to remedy the tax problem.  The amendment allowed an eligible farmer under Chapter 12 to liquidate assets and discharge the tax liability as an “unsecured claim” under the plan.[6]  This means that when a farmer sells real estate or equipment while under Chapter 12 bankruptcy, the income and capital gains tax debt can be considered the same as unsecured debt that is outstanding.  Because of this important addition, the unsecured debt was able to be discharged the same as any other unsecured debt.  This was a major victory for farmers who were trying to find relief via Chapter 12 bankruptcy.  However, the courts have since interpreted the statute in many different ways which have been inconsistent from circuit to circuit.[7]  Some of these judicial holdings have been farmer friendly, while others have been more IRS friendly.

In 2012, the United States Supreme Court found more on the IRS friendly side in Hall v. United States.[8]  The issue in this case was whether the income and capital gains taxes incurred during the bankruptcy (through sale of assets) would be dischargeable debt, or if the statute only applied to income and capital gains taxes which occurred as the result of sales before the bankruptcy was filed.[9]  Ultimately the court held that a farmer may not discharge the tax liability if it was incurred during the bankruptcy.[10]  This put farmers in distress essentially back to 1980s era policy surrounding liquidation, which as previously stated, there existed very few options for relief.

Since the Hall decision, Congress has put forth a substantial effort to legislatively address the problem once again.  In October 2017 Congress passed, and President Trump signed into law, the Family Famer Bankruptcy Clarification Act of 2017 (“Act”).[11]  The Act was truly a bipartisan effort to eliminate the ambiguity from the former statute and implement new legislation which would solve the issue once and for all.  The Act eliminated enforcement of the former 2005 amendment to the Code (§ 1222(a)(2)(A)) and implemented a new section for clarification.[12]  The new § 1237 allows a farmer to be discharged of the tax liability even if the liability is incurred through sale of assets during the bankruptcy.[13]  This legislation essentially vacates the decision in Hall, and it removes the requirement that tax liability is only dischargeable if the debt is incurred prior to filing Chapter 12 bankruptcy by removing priority status of the tax debt.[14]

Although the U.S. agriculture economy is not exactly the same presently as it was during the 1980s, farmers are still in a very tough environment today to make ends meet.  Interest rates have remained fairly stable, but agricultural commodity prices are down, while input costs are still at an all-time high.  These market conditions could be the recipe for an agricultural disaster or a repeat of the 1980s.  Congress’ proactive approach and passage of the Act in 2017 was certainly a step in the right direction for both agricultural debtors and creditors when facing adversity.  This tax relief will serve as an important resource in a farmer’s toolbox should the farmer find himself or herself in a situation where Chapter 12 bankruptcy is a viable solution.

[1] 11 U.S.C. §§ 101(18), 101(19A), 109(f) (2016).

[2] Id.

[3] Administrative Office of the Courts, Chapter 12 – Bankruptcy Basics (2017), available at http://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-12-bankruptcy-basics.

[4] Ann Shaw, Michael Crowson, Farmers Only (and Fishermen, Too), 50-OCT Md. B.J. 64, 67-68 (2017).

[5] Brett Morrison, Spoiling a Fresh Start: In Re Dawes and a Family Farmer’s Ability to Reorganize Under Chapter 12 of the U.S. Bankruptcy Code, 53 B.C. L. Rev. E-Supplement 89, 92 (2012).

[6] 11 U.S.C. § 1222(a)(2)(A).

[7] See Morrison, at 94-95 (discussing the disagreement among the Federal Circuit Courts).  

[8] Hall v. United States, 132 S.Ct. 1882 (2012).

[9] Id.

[10] Id.

[11] Family Farmer Bankruptcy Clarification Act of 2017, 11 U.S.C. § 1237 (2017).

[12] Id.

[13] Id.

[14] Id.

Matal (née Lee) v. Tam: The Patent Trademark Office is not the Government’s “Peaceful Grove”

 This post is written by Lead Notes Editor Clay Sabourin. Opinions and views expressed herein are those of the writer alone.

And in Peaceful Grove, you write messages, but peaceful messages.

And above all, you don’t write messages that will provoke others to violence or bad feelings.

Okay? Anything wrong with that? I can’t think of anything wrong with that.

There are thousands of places where you can express hostile feelings.

It’s just in this tiny place, one-quarter of an acre, that you yourself have chosen to take advantage of that, because if you can’t, it will destroy the purpose. It will destroy the purpose of Peaceful Grove.

-Justice Stephen Breyer, Oral Argument for Lee v. Tam, January 18, 2017.

 

“So sorry if you take offense

But silence will not make amends”

-The Slants, From the Heart

 

Matal (née Lee) v. Tam: The Patent Trademark Office is not the Government’s “Peaceful Grove”

 

In June of 2017, the Supreme Court of the United States sided with Asian-American “dance-rock” band the Slants, holding the Patent Trademark Office (“PTO”) could not deny the group’s application to trademark its name.[1] All eight sitting justices ruled in favor of the Slants, though the Court split 4-4 on the precise reasoning for the decision. Justice Alito penned the majority opinion (joined by Roberts, Thomas, and Breyer), while Justice Kennedy (joined by Ginsburg, Kagan, and Sotomayor) wrote a lengthy concurrence.

The PTO denied the Slants application, citing the possibility that a large composite of a minority group could find the trademark “disparaging.” The Court’s decision affirmed the Federal Circuit Court of Appeals, which held sub judice that the PTO could not deny the Slants trademark application under section 15 U.S.C. § 1052(a) of the Lanham Act (the PTO’s organic statute).[2] Section 2(a) of the Lanham Act permitted the PTO to deny otherwise valid applications if they “consist of or compromise . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, national symbols, or bring them into contempt, or disrepute.” Both the Federal Circuit and the Supreme Court found section 2(a), the “disparagement clause,” to be an unconstitutional restraint on free speech.

Though undoubtedly exciting for free speech enthusiasts (and the Slants), the majority opinion written by Justice Alito left plenty of unanswered questions. The concurrence written by Justice Kennedy had similar shortcomings. It is worth emphasizing that the decision was a clear victory for the “marketplace of ideas” –– a lively affirmation of the First Amendment. The majority opinion was a blistering, at times even mocking rebuke of the PTO’s (and by extension, Congress’) attempt to implement an obnoxious “happy-talk” clause into the federal trademark program.[3] The Concurrence flatly concluded the government was attempting to silence speakers and messages it disfavored, constituting facially invalid “viewpoint discrimination.”[4]

Nevertheless, both opinions failed to answer critical questions. Though presumably “strict,” the Majority did not explicitly declare the level of scrutiny it was applying. Furthermore, the Majority and the Concurrence declined to resolve whether trademarks are commercial or private speech, concluding section 2(a) of the Lanham Act was unconstitutional either way. The Concurrence at least mentioned the government can continue to suppress speech that is fraudulent, defamatory, or incites violence.[5] On this point, the Majority held its cards closer to its chest. The extent to which other questionable aspects of the Lanham Act survive going forward––the “scandalous or immoral” clause for instance––is open to debate.[6]

Perhaps the most salient takeaway was the Court’s forceful condemnation of the Government’s primary argument that trademarks are “government” speech, immune from customary constitutional precepts. The government relied heavily on Walker v. Texas Div., Sons of Confederate Veterans, Inc., a case in which the Court held Texas did not have to offer license plates depicting confederate flags.[7] Texas objected to the plates over concerns confederate flags could be deemed offensive. In Walker, the Court sided with Texas, stating, “[w]hen the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”[8] In Tam, the Court didn’t think the government was speaking at all. The Court wryly observed, “if trademarks represent government speech, what does the Government have in mind when it advises Americans to “make. Believe” (Sony), “Think different” (Apple), “Just do it” (Nike), or “Have it your way” (Burger King)?”

The Slants typified a sympathetic champion to defeat the trademark office’s ban on “disparaging” speech. In fact, the Slants vigorously argued at every appellate level its proposed trademark was not disparaging at all, but instead was meant to empower Asian-Americans by way of “cultural reappropriation.”[9] There is no reason to doubt the Slants’ sincerity on this point. However, more questionable trademarks with even more questionable purposes are looming. The National Football League’s Washington Redskins, who notably had their trademark protection stripped due to the perception “redskin” was a disparaging racial slur towards Native Americans, are nearly certain to be re-registered.[10] The Redskins, much like the Slants, argued strenuously that its name was a term of empowerment for a minority group. However, unlike the Slants, the ownership of the Redskins is not comprised of Native Americans.[11] In fact, numerous Native American organizations have publicly voiced their displeasure with the team’s use of the term.[12] These considerations make it difficult for the trademark office to discern the Redskin’s true intentions. In the wake of Matal v. Tam, however, it is no longer a concern of the government. An inevitable wave of offensive trademarks are about to be registered, but the consuming public, not the government, must choose an appropriate response.

 

 

 

 

 

 

 

 

 

[1] Matal v. Tam, 582 U. S. ___, 1-2 (2017).

[2] Id. at 5-6.

[3] Id. at 25.

[4] Matal v. Tam, 582 U.S. ___, 1-2 (2017) (Kennedy, J., concurring)

[5] Id. at 2 (citing United States v. Stevens, 559 U. S. 460, 468 (2010)).

[6] https://www.natlawreview.com/article/historic-ip-decision-future-immoral-scandalous-and-disparaging-trademarks

[7] See Generally Walker v. Texas Div., Sons of Confederate Veterans, Inc., 125 S. Ct. 2239 (2015).

[8] Id. at 2245.

[9] Tam, Petitioner’s Merits Brief, at 21-22.

[10] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/19/the-slants-and-the-redskins-win-the-government-cant-deny-full-trademark-protection-to-allegedly-racially-offensive-marks/?utm_term=.77e66ce5b775

[11] http://www.espn.com/blog/washington-redskins/post/_/id/16046/washington-redskins-ownership-at-a-glance

[12] http://ftw.usatoday.com/2017/12/washington-redskins-name-change-hoax-redhawks

Bail is Being Revolutionized in Modern America, but the Job is Not Done

 This post is written by Associate Editor Lindsay Mumley. Opinions and views expressed herein are those of the writer alone.

There have been two major improvements to the bail system in America during a recent push for bail reform: the use of risk-based assessments and getting rid of the money bail system1 Only New Jersey and Washington District of Columbia have abolished the money bail system. The rest of the country continues to utilize the money bail system but have added the risk assessment in an effort to foster objective reasoning in determining bail.

The risk assessment utilized in pre-trial is derived from empirical research that evaluates a defendant’s likelihood to make all future court appearances and have a successful pre-trial free of any new charges 2 The assessments vary depending on the jurisdiction but generally have similar factors that are weighed.3 These factors include criminal history, age, previous failures to appear, and other individualized characteristics.4

The assessment results in the defendant being scored based on his risk level.5 Virginia uses a numerical based scoring that ranges from one to five, five being the highest risk level. States like Kentucky and Colorado translate the numerical score derived from the assessment into categories: low risk, medium risk, and high risk.6 The judge uses this score to make a determination about bail.

While a step forward in much-needed reform, risk assessments can be an incomplete picture of what will determine success in pre-trial. A defendant may be low-risk, however, more intrusive court services are warranted due to a drug addiction or mental health issue.7 Ultimately, the judge is expected to weigh the score and other extrinsic, relevant characteristics in determining bail.8 However, judicial latitude in making these determinations are the reason why more reform is required to restore the presumption of innocence in pre-trial.

 

The Supreme Court repeatedly affirms that liberty and justice are not luxuries of the rich defendants.9 However, using a risk assessment score alone results in two defendants with identical risk scores with vastly different fates: one jailed for being poor and the other, just as “risky” defendant, on the streets. Continuing to use a monetary bail system violates any notion of equal justice or fundamental fairness as required under the fourteenth amendment.10 Reforming how unjustly the impoverished are affected during pre-trial is fundamental in overhauling bail because they make up almost 80 percent of the criminal population.11

Often judges are making an arbitrary bail decision without taking into account the individual financial capabilities of the individual.12 Only half of the individuals are able to meet the financial obligation of bail.13 The other fifty percent are deprived of equal justice despite frequent supreme court rulings disavowing incarcerating an individual because he is poor. The true violation of fundamental fairness is evident when looking at the unjust effect of remaining incarcerated has on the defendant’s criminal case.

Even if innocent, a defendant who is detained pre-trial is more likely to plead guilty in order to be released.14 Regardless of guilt, remaining detained pre-trial has profound effects on the sentence the defendant will ultimately receive. A detained defendant is least three times more likely to be incarcerated and face sentences three times longer than their released counterparts.15  The current bond money system is manufacturing unjust results for being poor and should be abolished.16 It is already happening and the results illustrate that money bail is not necessary to protect the government’s interests.

New Jersey has not only implemented a risk assessment tool but has essentially eradicated the money bail system.17 During the implementation of these new polices, the jail population dropped over thirty percent.18 The community is safer with an unprecedented drop in violent crime and overall crime.19 New Jersey accomplished this without unjustly affecting the impoverished.

The District of Columbia has been without money bail for many years and as a result has one of the lowest pre-trial detention rates in America.20 Ninety-two percent of defendants are released pre-trial and inability to pay is never a factor.21 While release rates are high, the research shows the governments interests to prevent future crime and ensure court appearances are met.22 Ninety percent of released defendants had no issue making all future court appearances.23 Of the defendants released, eight-nine percent were not rearrested on new charges and ninety-eight were not re-arrested on violent charges.24 The District of Columbia is another jurisdiction illustrating that the justice system does not need money bail to ensure appearance rates or protect the public.

The United States Supreme Court held that “in our society, liberty is the norm and detention prior to trial or without trial is the carefully limited exception.” 25 In order to achieve that aspiration, eradicating the money bail system and enforcing objective risk-based assessment is an absolute.

 

1 The State of Pretrial Justice in America. Report. Pretrial Justice Institute. November 3, 2017.

https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=99c5aa38-8756-581b-b722-a61bf0fb20e6&forceDialog=0

2 Pretrial Justice Institute, Pretrial Risk Assessment: Science provides guidance on assessing defendants. Issue Brief, May 2015, http://www.pretrial.org/download/advocacy/Issue%20Brief-Pretrial%20Risk%20Assessment%20(May%202015).pdf

3 Id.

4 Id.

5 Id.

6 Id.

7 Id.

8 Id.

9 The supreme court held that, there can be no equal justice where the kind of trial a man gets depends on the amount of money he has” Griffin v. Illinois, 351 U.S. 12, 19, 76 S. Ct. 585, 591 (1956). And further held that depriving a defendant of liberty based on his inability to pay was contrary to the fundamental fairness required by the Fourteenth Amendment. Bearden v. Georgia, 461 U.S. 660, 673, 103 S. Ct. 2064, 2073 (1983).

10 Id.

11 Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National       Crisis, 57 Hastings L.J. 1031, 1034 (2006).

12Timothy R. Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform, National Institute of Corrections, (2014). note 13, Std. 10-1.1, at 25.

13 Brian A. Reaves, Felony Defendants in Large Urban Counties, 2009 –Statistical Tables, Bureau of Justice Statistics (2013).

14 Justice Pol’y Inst., Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail (2012), available at http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail.pdf.

15 Laura & John Arnold Found., Pretrial Criminal Justice Research (2013), available at http://www.arnoldfoundation.org/wpcontent/uploads/2014/02/LJAF-Pretrial-CJResearch-brief_FNL.pdf

16 The State of Pretrial Justice in America. Report. Pretrial Justice Institute. November 3, 2017.

https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=99c5aa38-8756-581b-b722-a61bf0fb20e6&forceDialog=0

17 New Jersey State Police, Uniform Crime Report, January-September 2017, generated December 13, 2017. http://www.njsp.org/ucr/pdf/ current/20171013_crimetrend.pdf

18 Id.

19 Id.

20 Pretrial Justice Institute, The State of Pretrial Justice in America. Report. November 3, 2017.

https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=99c5aa38-8756-581b-b722-a61bf0fb20e6&forceDialog=0

21 Id.

22 Based on statistics from 2007 to 2012. Criminal Justice Policy Program, Harvard Law Sch., Moving Beyond Money: A Primer On Bail Reform 14-18 (2016), http://cjpp.law.harvard.edu/assets/FINAL-Primer-on-Bail-Reform.pdf 36 moving beyond money

23 The State of Pretrial Justice in America. Report. Pretrial Justice Institute. November 3, 2017.

https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=99c5aa38-8756-581b-b722-a61bf0fb20e6&forceDialog=0

24 Id.

25 United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095 (1987)

 

 

 

Carpenter v. United States: Warrantless Tracking

This post is written by Symposium Editor Matt Kriege. Opinions and views expressed herein are those of the writer alone.

 

Recently, the Supreme Court heard oral arguments in the case of Carpenter v. United States. This case is about location data that is transmitted from cell phones to cell towers in order for the cell phone carrier to know where to send calls when your number is dialed. The case dates back to 2011 when police arrested a man (Carpenter) for a number of armed robberies. One of the co-conspirators in the robberies provided the FBI with the cell phone numbers of all the other participants. Using these telephone numbers, the FBI was able to convince a magistrate judge to issue orders for the “transactional records” of each of the numbers “under the Stored Communications Act, 18 U.S.C. 2703(d).”[1] It is important to note that these orders were not a warrant and did not require the burden of proof that is required for a warrant to be issued. Under Stored Communication Act, 18 U.S.C. 2703(d), “the government may require the disclosure of certain telecommunications records when ‘specific and articulable facts show [] that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.’”[2] This standard is much easier to meet than the probable cause standard that would be required if requesting a warrant from the judge. With the orders obtained under the Stored Communications Act, the prosecution was able to obtain 127 days’ worth of cell site data from the defendant’s cell phone carrier.[3] The issue in the case is whether the warrantless search and seizure of this data constructed a violation of Carpenter’s fourth amendment rights. “Carpenter . . . argue[s] that the Fourth Amendment [] required the government to obtain a search warrant, pursuant to a showing of probable cause, before collecting the data.[4]

When this case came up to the 6th Circuit Court of Appeals they drew a strong distinction between the content of the communication and the “information necessary to get those communications from point A to point B.”[5] This distinction comes from a history of case law that holds the same, this distinction has held in regard to emails and phone calls. The content of the emails are protected by the 4th Amendment, but not the metadata that gets sent along with them.[6] The 6th Circuit held that the business records at issue, in this case, are similar to metadata with emails or phone numbers with phone calls, not protected by the 4th Amendment. The records obtained by the prosecution contain nothing about the content of the phone calls they are only data points, keep by the cell provider, regarding location, duration, and time of the call. Therefore, according to the 6th Circuit Court of Appeals, the governments obtaining of these records was not a search. The court reasoned that Carpenter had no property interest in the data that was being transmitted. As well as, that any reasonable cell phone user would know that their location data was being transmitted to the cell phone provider and therefore would have no reasonable expectation of privacy in the data.

Carpenter puts forth a number of arguments. First, he states that this case is like Jones where The Court deceived that long-term GPS surveillance impedes on a person’s Fourth Amendment rights. The Court states that Carpenter had no expectation of privacy in these records, first they were business records of a third party and second, he knew or should have known this information was being transmitted to this third party.  Also, the court makes a point to note that this is not GPS data that is being pulled from the smartphone, instead it is general location data based on where the phone was pinging cell towers that were kept by the cell phone provider.[7]

In oral arguments in front of The Supreme Court on November 29th counsel for Carpenter was berated with questions. The level of voluntariness of this information going to the phone company, the consumer’s property rights in the data, and the third-party doctrine, were of particular focus. The reason that this case is so important to watch is “[i]f the court determines the government doesn’t need probable cause to access volumes of individuals’ location data, it could open the doors to a new era of official surveillance.”[8] The amount of data that individuals expose to third-parties through the use of smartphones is incredible. Under the current outdated third-party doctrine, all this data is available to the movement without the need for a warrant.

Justice Kegan even acknowledges third-party doctrine is dated. In oral argument, the Government states that “[if] the government reaches into the phone, pulls out information. That, I would concede, is a search. What we’re doing here is not going to the individual and extracting information from him. We’re getting information from a third-party provider, relying on the line of cases that Justice Alito alluded to, that allow us to use subpoenas.”[9]

However, Justice Kegan responds, “that line of cases was developed in a period in which third parties did not have this kind of information.” Justice Kegan makes a really good point here.  Just by going into my settings on my iPhone and looking under “privacy” I can see that there are roughly 100 apps that have access to my location data either while I am using that specific app or all the time. These apps using my location make things easier for me. When I get out of my car my phone, it knows where I left it parked. When I have to be at a certain place at a certain time, my phone knows when I should leave based on my location. The sharing of this type of data with those third parties is for my convenience, however, that doesn’t mean that just because I am sharing for my convenience I should lose all expectation of privacy in that data. This doesn’t even scratch the surface of information I am sharing. I have health data, photos, contacts, and even data regarding smart lights installed in my bedroom. Is there even a way to have a reasonable expectation of privacy in anything anymore with the third-party doctrine and our increasingly connected lives.

 

To learn more about this case check out these links:

[1] Carpenter v. United States, Oyez, https://www.oyez.org/cases/2017/16-402 (last visited Nov 29, 2017).

[2] Id.

[3] United States v. Carpenter, 819 F.3d 880, 886 (6th Cir. 2016).

[4] Id.

[5] Id.

[6] See, e.g., United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010); United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008); United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2007).

[7] Carpenter, 819 F.3d 880.

[8] The US could be on the verge of dismantling digital privacy as we know it, Quartz https://qz.com/1140277/carpenter-v-united-states-the-us-could-be-on-the-verge-of-dismantling-digital-privacy-as-we-know-it/ (Last visited November 29th,2017).

[9] Transcript of Oral Argument at 68, Carpenter v. United States (No. 14-1572)

Presidential Tweeting: Private or Government Speech?

This post is written by Associate Editor Alex Kubala. Opinions and views expressed herein are those of the writer alone.

 

One of the many duties of the President of the United States is to communicate with the American people. Whether through in-person meetings, televised speeches, or “fireside chats,” Presidents have a lot of options when it comes to picking a mode of communication, which now includes social media.[1] Although former President Barack Obama also had a twitter account while in office, President Donald Trump is perhaps most famous for using twitter as a favored mode of communication, both during his campaign and throughout his presidency. There are three main twitter accounts associated with this President, which include his personal account, “@RealDonaldTrump,” a presidential account “@POTUS,” and a White House account “@WhiteHouse.”

This new age of technological communication presents interesting First Amendment questions with respect to the President’s habitual social media usage.[2] Though there are multiple twitter accounts, does the President’s personal twitter account constitute private speech made by a private citizen or as government speech from the highest public official? People use twitter for many different reasons such as venting frustrations, sharing details of their day, and generally communicating a variety of ideas, and the President does not appear to be immune to any of these. However, if the President writes a tweet that intentionally antagonizes another foreign leader or discusses foreign affairs, does that constitute government speech?[3] Does the content of the tweet matter in deciding if this is government speech, or are all of his tweets in his personal account since his inauguration considered a representation of the U.S. Government?

In July of this year, President Trump tweeted from his personal account, “North Korea has just launched another missile. Does this guy have anything better to do with his life? Hard to believe that South Korea and Japan will put up with this much longer. Perhaps China will put a heavy move on North Korea and end this nonsense once and for all!”[4] President Trump has also tweeted several insults directed at North Korea’s Kim Jong Un.[5] Does it matter which twitter account posts these messages in determining if this is government speech?

It is assumed that a President will strategically communicate with foreign leaders, mostly behind closed doors, but this country has never had a President so candidly share his opinions on such a readily available communication platform.[6] When one becomes President of the United States, that person is the President twenty-four hours a day, seven days a week until that person’s term ends, or he or she is impeached, or resigns. Thus, when Donald Trump tweets from his personal account, he does not stop being the President simply because he wants to personally vent on his own twitter. Also, it is hard to make the argument that his tweets involve some sort of “right to privacy” since he is sharing his opinions in a public forum.[7] Thus, should his personal account be considered functionally the same as the White House twitter account? It is hard to imagine the White House tweeting many of the things President Trump tweets from his own account because one assumes government speech takes a more professional tone.

Government speech is treated differently than private speech when examined by a court.[8] Thus, how these tweets are characterized as either private or government speech would determine how they were examined.[9] The First Amendment implications of a President’s antagonizing and potentially dangerous tweets is uncharted constitutional territory. This author is not suggesting that it is necessarily a wise policy to monitor Presidential speech as that could interfere with the duties of the office. But, could it be possible that a truly outrageous Presidential tweet should be removed for endangering public safety? Or is the President just held politically accountable?[10] These are questions with no clear answers.

 

 

[1] Scott Horsley, Episode 2: White House Press Corps, Civics 101 Podcast (Jan 25, 2017).

[2] See U.S. Const. amend. I.

[3] See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239 (2015).

[4] Donald Trump (@RealDonaldTrump), Twitter (Jul. 3, 2017, 10:19 PM, 10:24 PM); See Saba Hamedy and Joyce Tseng, All the Times President Trump has Insulted North Korea, CNN (Dec. 1, 2017, 10:25 AM). http://www.cnn.com/2017/09/22/politics/donald-trump-north-korea-insults-timeline/index.html [hearinafter Hamedy].

[5] See Hamedy.

[6] See U.S. Const. art. II.

[7] See generally Rene Reyes, Do Even Presidents Have Private Lives? The Case for Executive Privacy as a Right Independent of Executive Privilege, 17 Kan. J.L. & Pub. Pol’y 477 (2008).

[8] Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009).

[9] Id. 467-69.

[10] See id. at 468.

Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection? (McCoy v. Louisiana)

 

This post is written by Senior Editor Brittany Grigery. Opinions and views expressed herein are those of the writer alone.

As 2018 begins, the Supreme Court will consider the case of Robert McCoy, who was convicted of first-degree murder for the shooting deaths of his estranged wife’s son, mother, and step-father. After firing his public defender, McCoy was represented by Attorney Larry English. An attorney paid by his parents. McCoy maintained his innocence and “emphatically opposed” his attorney’s proposal to concede his guilt. His attorney believed pleading guilty would spare McCoy the death penalty because of the overwhelming evidence against McCoy. A few days before his trial, McCoy attempted to fire English and proceed pro se. The court rejected this request on the ground that it came too late. [1]

When the trial began, English conceded McCoy’s guilt, despite McCoy’s objection. The court permitted English to tell the jury that McCoy had in fact committed the acts for which he was on trial. With the court’s approval, English assured the jury that his “client committed three murders” and told them he “took that burden [of proof beyond a reasonable doubt] off of” the prosecutor. [2]

In an interview with the New York Times, English remembers his pre-trial meeting with McCoy. “I met with Robert at the courthouse and explained to him that I intended to concede that he had killed the three victims,” Mr. English recalled. “Robert was furious and it was a very intense meeting. He told me not to make that concession, but I told him that I was going to do so.” [3] English later explained, “I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims … but I believed that this was the only way to save his life.”[4]

McCoy was subsequently convicted and sentenced to death. McCoy appealed the concession of guilt. He is arguing that it violated his constitutional right to have effective assistance of counsel.[5] Specifically, McCoy is arguing that when the accused in a criminal proceeding chooses to defend against the charges rather than admit guilt, the Constitution does not allow his lawyer to override that choice and tell the jury, over the client’s express objection, that the client is guilty. [6]

The Louisiana Supreme Court found that English made a reasonable strategic decision to admit McCoy’s guilt and thereby supposedly improve McCoy’s chance of receiving a life sentence rather than death.[7] Louisiana relies on Florida v. Nixon[8] which holds that when a defendant is unresponsive after being consulted about whether to admit guilt or claim innocence, no blanket rule demanding the defendant’s explicit consent bars counsel from conceding guilt in the hope of securing a more lenient sentence.[9] But McCoy argues in his brief that it is irrelevant whether an admission of guilt might have been reasonable trial strategy. [10] Once McCoy communicated his contrary decision, that choice was not English’s to make. [11]

The Cato Institute[12] filed an amicus brief in support of McCoy. It argues that the constitution protects the autonomy of criminal defendants, overruling a defendant’s decision to deny guilt violates defendant autonomy, and failure to protect defendant autonomy will undermine the integrity of the entire judicial process. [13]

Oral argument is set for Wednesday, January 17, 2018.

[1] Amy Howe, Justices issue orders from “long conference”, SCOTUSblog (September 28, 2017, 10:54 am), http://www.scotusblog.com/2017/09/justices-issue-orders-long-conference/

[2] Brief of Petitioner at 2, McCoy v. Louisiana, 218 So. 3d 535 (La. 2016) (No. 16-8255).

[3] See Adam Liptak, Facing the Death Penalty With a Disloyal Lawyer, NY Times (October 9, 2017), https://www.nytimes.com/2017/10/09/us/politics/death-penalty-supreme-court-attorney.html?_r=0

[4] See Adam Liptak, Facing the Death Penalty With a Disloyal Lawyer, NY Times (October 9, 2017), https://www.nytimes.com/2017/10/09/us/politics/death-penalty-supreme-court-attorney.html?_r=0

[5] Amy Howe, Justices issue orders from “long conference”, SCOTUSblog (September 28, 2017, 10:54 am), http://www.scotusblog.com/2017/09/justices-issue-orders-long-conference/

[6] Brief of Petitioner at 19, McCoy v. Louisiana, 218 So. 3d 535 (La. 2016) (No. 16-8255).

[7] Id. at 2.

[8] Florida v. Nixon, 543 U.S. 175 (2004)

[9] Brief of Petitioner at 2, McCoy v. Louisiana, 218 So. 3d 535 (La. 2016) (No. 16-8255).

[10] Id.

[11] Id.

[12] Brief for The Cato Institute at 1, McCoy v. Louisiana, 218 So. 3d 535 (La. 2016) (No. 16-8255) (The Cato Institute is a nonpartisan public policy research foundation founded in 1977 and dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s concern in this case is defending and securing the principle of defendant autonomy, and ensuring that the criminal defense bar functions as a check on government power through zealous representation of individual citizens – not as an arm of the state imposing its own view of the good on unwilling defendants.)

[13] Id.

Civil Asset Forfeiture

This post is written by Associate Editor Alex Wilcox. Opinions and views expressed herein are those of the writer alone.

Civil asset forfeiture is currently one of the most highly contested legal processes in the United States. The process allows for law enforcement agencies to seize and subsequently sell off real property suspected to be used in the commission of or garnered from illegal activity, without charging the owner criminally, much less obtaining a conviction. U.S. citizens who have had the displeasure of dealing with the process hate it and feel that it violates their rights granted to them by the Constitution, but lawmakers contend that it is the most direct and effective method at combatting the influence of narcotics and their purveyors in the United States.

The notion of the sovereign acquiring real property from its citizens without the need for a finding of criminal guilt is one that dates back, in common law, to England. The Crown would either seize the actual ships believed to be engaging in smuggling or piracy or create a cause of action in rem against the ship itself while the owner was out of the jurisdiction.[1] An early U.S. Congress used similar laws based on British admiralty laws to collect customs duties needed to fund the fledgling nation. By the Prohibition Era, forfeiture had taken a form similar to that of today, bootleggers’ cars, equipment, and money were seized by the government regardless of the guilt of the perpetrators. The war on drugs had begun in the 1980s and in 1984 the Comprehensive Crime Control Act was passed to allow federal and local law enforcement agencies to seize large sums of cash, drugs, and related items believed to be used in relation to crime, and to distribute the funds amongst the police bodies. The ability of policing agents being allowed to retain the vast majority of proceeds from civil forfeitures has raised the eyebrows of many who suspect this motivates officers to seize all they can and return only what proceeds the owner can afford to defend.

Today civil asset forfeiture is alive and well. Texas collected $53 million dollars in assets in 2015 through the legal process, but many Americans take issue with how the assets are seized.[2] In the Supreme Court Case U.S. v. Ursey, Justice Rehnquist defended the practice and made the clear ruling that civil asset forfeiture proceedings are against the personalty named in the complaint and not the actual owner.[3] This opinion has caused significant issues regarding innocent individuals feeling that their rights have been violated.

The Bennis v. Michigan case illustrates the opinion of a majority of states, that regardless of the co-owner of a cars criminal innocence, her car can be seized and sold off by the state without her having any part of the civil legal process.[4] The court made a point to discuss that due process was not violated through civil asset forfeiture because the proceeding was against personal property and not Mrs. Bennis, the owner of the car.[5] Her innocence in the criminal matter was wholly irrelevant because forfeiture is used as a remedial measure against the property and not a punitive one against the owner.[6] While Bennis may no longer be good law, it took until 2012 for Congress to allow protections for property owners that did not consent to illegal use of their property. This does not however address the issue regarding wholly innocent property owners perceived to be entangled in criminal acts having their property seized and being forced into the complex legal system to reclaim the bargain bin value of their property which is likely to have been long sold regardless.

While proponents of civil asset forfeiture are certainly correct that it can be used to appropriately and effectively to drain cartels’ coffers, those ends do not justify the means of innocent U.S. citizens having their property taken by the government without adequate legal recourse to make them entirely whole.

 

[1] David Benjamin Ross, Comment, Civil Forfeiture: A Fiction That Offends Due Process, 13 Regent U. L. Rev. 259, 262 (2000-2001).

[2] Tex. Atty. Gen., Ann. Rep. of Forfeits (2015). https://www.texasattorneygeneral.gov/files/cj/Annual_Report_of_Forfeited_Funds2015.pdf

[3] See United States v. Ursery, 518 U.S. 267, 270-72 (1996)

[4]See  Bennis v. Michigan,  516 U.S. 442 (1996).

[5] Id.

[6] Id.