Law in Plain English: McCutcheon v. Federal Election Commission

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: McCutcheon v. Federal Election Commission

Argument: Oct 8 2013 (Aud.)

Background: Congress enacted the Federal Elections Campaign Act of 1971 (FECA) to "promote fair practices in the conduct of election campaigns for Federal political offices." In 1974, Congress amended FECA to prohibit persons from contributing more than $1,000 to any political candidate, individuals from contributing more than an aggregate of $25,000 in any calendar year, and political committees from contributing more than $5,000 to any political candidate. In 2002, Congress passed  the Bipartisan Campaign Reform Act of 2002 (BCRA, popularly known as the McCain-Feingold Act) which replaced the $25,000 aggregate limit with a bifurcated limiting scheme of base limits (not being challenged here) and aggregate limits. During each two-year period starting in an odd-numbered year, no individual may contribute more than an aggregate of $46,200 to candidates and their authorized committees or more than $70,800 to anyone else. Of that $70,800, no more than $46,200 may be contributions to political committees that are not national political party committees. These aggregate limits, which amount to a total biennial limit of $117,000, thus prevent individuals from contributing the statutory maximum to more than eighteen candidates. McCutcheon wanted to contribute more; his additional candidate contributions would amount to aggregate candidate contributions of $54,400. A three-judge panel of the United States District Court for the District of Columbia denied McCutcheon's claim.

Issue: The question before the Court is whether the biennial, aggregate limit on contributions to non-candidate committees is unconstitutional as a violation of the First Amendment.

Holding: In a 5-4 decision, the Supreme Court ruled that the aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance. As a result, the aggregate limits violate the First Amendment and are not constitutional. Justice Thomas did not join the majority opinion, but concurred in the judgment only. Nonetheless, he agreed that the aggregate limits are invalid under the First Amendment, but would go further than the majority and overrule Buckley v. Valeo, 424 U. S. 1, and subject BCRA’s aggregate limits to strict scrutiny, where (he says) they would surely fail.

Women suffragists picketing in front of the White House, 1917

Teen Gets 30 Years in Woodley Park Metro Stabbing

Olijawon Griffin was stabbed and killed last year.

Back in November 2012, I blogged about the murder of Olijawon Griffin at the Woodley Park Metro station:

According to the court documents, a police officer who watched Metro security footage saw Griffin engage one teen in a boxing-style fistfight shortly after 1:15 a.m. and then saw Myers sneak behind Griffin with a knife, stab him in the chest and run.

At the time, I wrote:

Myers "snuck up behind Griffin" which would tend to show deliberation and premeditation, no?

I wondered if Myers was actually culpable for first degree murder rather than second. It turns out I was right:

Myers was indicted on a charge of first-degree premeditated murder while armed and the others were indicted on felony murder. All six were indicted on charges of armed robbery, assault with a dangerous weapon, assault causing significant bodily injury and weapons offenses for their roles in attacks on Griffin and his friend...

The District of Columbia, like many other jurisdictions, allows for accomplices to be charged with murder when someone dies in the commission of another (usually dangerous felony). So while Myers's accomplices didn't actually kill Griffin (or, for that matter, are even accused of killing him), they are charged with felony murder--as if they did kill him.

The now 18-year old Chavez Myers and his friends, charged as adults, will spend a considerable amount of time in prison.

According to this article in the Washington Post, Myers pled guilty to first degree felony murder, and was sentenced to 30 years in prison. The other five accomplices, ages 17 to 20, drew sentences ranging from 15 to 19 years for voluntary manslaughter.

So Myers was indeed convicted of first degree murder, but of the felony murder variety (killing while perpetrating certain crimes, probably robbery) as opposed to the purposeful variety. In the end, the distinction is probably not meaningful--Myers will be in prison for a long time.

Law in Plain English: Conley v. United States

Antwaun Conley v. United States

Docket No.	Opinion Below	Argument	Opinion	Vote	Author	Term
No. 11-CF-589	N/A	Nov 20 2012	Sep 26 2013	3-0	Glickman	N/A

Plain English Summary: In 2009, the Council of the District of Columbia enacted a statute making it a felony offense for a person to be present in a motor vehicle if the person knows that the vehicle contains an illegal firearm (“PMVCF”), even if the person has no connection to or control over the weapon and is not involved in any wrongdoing whatsoever. The statute was enacted in order to allow convictions to be obtained when a firearm is found in a car with more than one occupant and the government cannot prove who possessed it. Conley was arrested after police found a loaded handgun in the center console of a car he was driving (there was also a passenger in the front seat; and two passengers in the rear of the vehicle). The jury acquitted Conley of several possessory offenses. It found him guilty only of PMVCF, and the judge sentenced him to thirty-four months in prison.

Holding: The DC Court of appeals found the PMVCF unconstitutional because it violated due process. Instead of requiring the government to prove that the defendant‟s continued presence was voluntary, the law requires the defendant to shoulder the burden of proving that his presence in the vehicle was involuntary. This shifting of the burden of persuasion with respect to a critical component of the crime is incompatible with due process. Additionally, the Court found it s incompatible with due process to convict a person of a crime based on the failure to take a legally required action—a crime of omission—if he had no reason to believe he had a legal duty to act, or even that his failure to act was blameworthy. In other words, the statute criminalizes entirely innocent behavior—merely remaining in the vicinity of a firearm in a vehicle, which the average citizen would not suppose to be wrongful (let alone felonious)—without requiring the government to prove that the defendant had notice of any legal duty to behave otherwise. As a result, Conley's conviction was overturned.

News Coverage

• Blog of Legal Times (Sep 26 2013)

Adventures from the strange police department files

In yesterday's post about the Veterans Affairs Police, I questioned whether it was necessary for every executive branch department to have their own branded police department. Rather, I thought it might be worthwhile to consider a government-wide, cross-agency, federal police department that staffs each executive branch agency as appropriate, without having to deal with an extra layer of bureaucracy of individual departments in each agency. But I did not question whether the VA needed police. On the other hand, you might reconsider your position about this one:

Yes, look again. The D.C. Public Library Police. It does exist--or, at least it used to exist. There is some evidence that it may have been wrapped up into the Protective Services Department. Still, Library Police. Better get those overdue books turned in!

The cost of Obamacare: 660% increase

...if you're a student at the University of the District of Columbia.

The cost for mandatory health insurance for the 2012-13 academic year was $149 per year (according to this page, which hasn't yet been updated as of September 20th). This year:

$149 to $1,133 represents a 660% increase in the cost of health insurance, which is mandatory for all students.

To be clear, the University itself specifically indicated in an email that Obamacare's increased coverage requirements ("a minimum benefit of at least $100,000 per policy year, have no limits on benefits deemed essential by the Act, and provide a preventive care benefit with no deductible, co-pays or co-insurance") was the cause:

Due to changes in federal law (popularly known as Obamacare), the cost of coverage has increased significantly for the coming academic year.  

Students may waive the university-sponsored plan by providing proof of comparable coverage.  If you don't have coverage through your employer or other means, tough luck.

In a particularly sweet bit of irony, the image above was provided to me by a student who got a refund from the school, only after the school originally found his government-provided insurance to be insufficient.

Is the UDC exodus worse than expected?

Last month, I posted the reasons that I decided to transfer from UDC to Maryland. I speculated that the exodus from UDC would be noteworthy:

Other students choose to move on. I know of at least a half dozen students in the same boat as myself who have decided to transfer. I suspect the actual number is considerably higher. We had an incoming class of about 70 students last August. With those that are transferring and those that dropped out along the way, I will be very interested to see how many of those 70 students return next month. I wouldn't surprised to see 25% or even more who fail to return.

A good friend of mine who is still at UDC indicated that about 28 students from our original group of 70 were in class last night. Now it's certainly possible that not all returning evening students were in Monday night's class; although it is the model schedule so you'd expect most of them to be. Even so, it appears that something like 50% of the class has disappeared in barely a year. It's also worth mentioning that last year's evening class appears to have been unusually large as compared to the prior year's class.

Maryland and American appear to be the biggest beneficiaries of UDC transfer students. And of the 15 J.D. transfer students at Maryland, four (including me) came from UDC (two day students and two night students) and six transferred from the University of Baltimore.

Lastly, I know of at least one additional student who will likely transfer after the fall semester. I wouldn't be surprised if he/she isn't the only one.

Pretty sobering.

Farewell UDC

Today is my last day of class at UDC; and tonight are our final oral arguments for Moot Court.*

There are a lot of things I will not miss about UDC--I briefly mentioned a few them in my previous post about why I decided to transfer. On the other hand, I will certainly miss my classmates, many of whom I became good friends with over the last year (some of them decided to transfer to other schools, too). Evening students are typically older than recent undergrads and typically have some real-life work experience and most often a current, full-time job. In some ways, these shared attributes help to bond evening students together in a different way than day students might. There is often more talk about jobs and family and less talk about academics.

To those of you whom I became good friends with over the last year, I will miss hanging out with you; I might even miss (just a little) our shared complaints about certain professors or certain classes. Please, keep in touch. I won't be too far away.

* On a side note, I hope to be able to record tonight's oral arguments for later playback and mockery. One of my practice arguments was posted here; thankfully, my second practice argument (where we argued the opposite side) was not recorded. It. Was. A. Disaster. :-)

Why I transferred

When I was in the process of making my decision whether to transfer law schools, I decided I would eventually publish my reasons for making that decision. I also decided that I would wait until I was accepted and enrolled at the new school before I make the blog post. Now that I have enrolled at UM Carey Law, here are my reasons.

1. Better positioned to take the bar in Maryland. Although I'm not a big fan of the state of Maryland in general and don't necessarily want to stay here forever, I do expect that we will be here for the near future. As a result, I have always planned on taking the bar exam in Maryland. Getting my law degree from one of the two Maryland schools (University of Maryland or University of Baltimore) would better prepare me for that opportunity because both schools have Maryland-specific courses.

2. Better opportunities to network in the Maryland legal community. Because there are only two law schools in Maryland (and within a mile or so of each other), there are likely better opportunities for me to network in the Maryland legal community. While I'm currently working full-time with no expectations of leaving my job for a law job that may or not be there, it cannot hurt me to network within the very community that I will eventually hope to practice in.

3. Both Maryland schools have appellate practice clinics that work in Maryland courts. While I have made no decisions about what areas of law I'd like to practice, I have taken a special interest in appellate advocacy. Both Maryland schools have appellate advocacy clinics that argue cases in front of the Maryland Court of Special Appeals. This an opportunity that would not have existed for me at UDC.

4. Frankly, Maryland is a considerably better ranked school. While the US News rankings are not the be-all and end-all of rankings, they mean something. Transferring from a tier four (essentially, an unranked school) to a tier one school (top 50) school is a no-brainer if you have the opportunity, especially when tuition is not a factor due to the post-9/11 GI Bill. The University of Maryland also has one of the top ten part time/evening programs.

5. Disorganized administration at UDC. It is unfortunate, but the administration at UDC is highly disorganized. Many current students will admit this as a matter of course. They also have come to expect it and largely shrug it off as what to expect at a low-tuition law school. With a few exceptions, I have kept my criticisms of UDC to myself and my fellow students. It is not worth the time to list all of the issues. Just trust me on this one--it can be maddening at times (consider this--an open-ended, one credit class where the professor just randomly assigns things that were never on the original syllabus). I'd rather concentrate on my classes and not have to worry about whether the school is doing things right.

Other students choose to move on. I know of at least a half dozen students in the same boat as myself who have decided to transfer. I suspect the actual number is considerably higher. We had an incoming class of about 70 students last August. With those that are transferring and those that dropped out along the way, I will be very interested to see how many of those 70 students return next month. I wouldn't surprised to see 25% or even more who fail to return.

6. Location. From home or work to UDC, I had about a 75 minute commute (driving and Metro). On some days, I left for work before 5AM and didn't get home until 10PM. Maryland is considerably closer and will be something like a 20-30 minute commute in total. More time to spend with the family. That's always a win.

The George Washington University and a small win for intellectual property

Earlier this week, I received the following email from XanEdu on behalf of The George Washington University:

XanEdu is seeking permission on behalf of [xxx] at George Washington University to include the following material in a digital CoursePack for approximately 12 students enrolled in PSSL 6246 during the Summer 2013 semester:

Title: Shodan for Presentation Testers

Author: Schearer, Michael

Web Site URL: http://www.defcon.org/images/defcon-18/dc-18-presentations/Schearer/DEFCON-18-Schearer-SHODAN.pdf

Page Range: 1-79

Total Pages: 79

Publisher: (author) Schearer, Michael 

If permission is granted, XanEdu will post the material on a password-protected web site. Only the instructor and students registered for this course will have access. The material will be removed at the end of the semester.   

You may grant permission by emailing or faxing this request with approval information to my attention.  Should a royalty fee apply, please include that with your email or fax.   

Thank you for your consideration. Please contact us if you have any questions or need more information.

As with most of my materials, I released this presentation under the Creative Commons License: Attribution-NonCommercial-ShareAlike 3.0 Unported (CC BY-NC-SA 3.0).

GWU gets +1 for respecting intellectual property!

Six Teens Indicted For November Metro Station Murder

Back in November, I blogged about the murder of Olijawon Griffin at the Woodley Park Metro station:

According to the court documents, a police officer who watched Metro security footage saw Griffin engage one teen in a boxing-style fistfight shortly after 1:15 a.m. and then saw Myers sneak behind Griffin with a knife, stab him in the chest and run.

At the time, I wrote:

Myers "snuck up behind Griffin" which would tend to show deliberation and premeditation, no?

I wondered if Myers was actually culpable for first degree murder rather than second. It turns out I was right:

Myers was indicted on a charge of first-degree premeditated murder while armed and the others were indicted on felony murder. All six were indicted on charges of armed robbery, assault with a dangerous weapon, assault causing significant bodily injury and weapons offenses for their roles in attacks on Griffin and his friend...

The District of Columbia, like many other jurisdictions, allows for accomplices to be charged with murder when someone dies in the commission of another (usually dangerous felony). So while Myers's accomplices didn't actually kill Griffin (or, for that matter, are even accused of killing him), they are charged with felony murder--as if they did kill him.

17-year old Chavez Myers and his friends, charged as adults, may spend most of the rest of their lives in prison.

Law in Plain English: Bloem v. Unknown Department of the Interior Employees

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

I've made a slight change to the "SCOTUS in Plain English" series to reflect the opportunity to discuss a few cases not at the Supreme Court level that are nonetheless interesting and worthy of discussion. As a result, the series is now called "Law in Plain English."

Bloem v. Unknown Department of the Interior Employees

The National Park Service distributed flyers warning Occupy protesters in McPherson Square that they would begin enforcing a prohibition on camping. Subsequently, many items of personal property (some that belonged to Bloem) were destroyed. Bloem filed a lawsuit against the unnamed Department of the Interior employees for the seizure and destruction of his property. The DoI filed a motion to dismiss, alleging that Bloem had failed to state a claim upon which relief could be granted. The District Court ruled that the tent city was expressive conduct, permitted by the First Amendment. Additionally, Bloem's allegations that the DoI had violated his Fourth and Fifth Amendment rights were sufficient, and thus Bloem had stated a plausible claim. For purposes of a motion to dismiss, which in this case is a 12(b)(6) motion, Bloem's alleged facts are presumed by the court to be true. In other words, the court looks at the case and says: even if we assume that all of his facts are true, has he made a plausible claim? This is a procedure hurdle to make sure that baseless lawsuits don't consume valuable time of the court. As a result, Bloem's claim survived the government's motion to dismiss and the case can move forward.

On WMATA, do whatever you want (because they don't care)

While riding the Metro this afternoon, two gentlemen (and I use that term loosely) got onto the train with food and proceeded to start eating. A (brave) passenger sitting behind me got up and approached them, politely reminding them that eating was not permitted. The two guys laughed in his face, then ignored him and continued to eat (and have a hearty laugh about the whole incident).

They can do this because Metro rarely enforces its own rules. I have ridden the Metro on and off for parts of two decades and never seen these rules enforced. In fact, on more than one occasion, I have seen Metro employees as the ones breaking their own rules. Do as I say, not as I do? More like: do whatever you want, because they don't care.

The DC Metro...and textualism?

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

I wrote a previous blog post about the ejusdem generis canon. To recap: where general words follow an enumeration of two or more things, they apply only to persons or things of the same general class specifically mentioned.

I was riding the Metro the other day and came across an example of where we might be able to use ejusdem generis in practice:

For the sake of this example, let's focus on the last bullet. So, "[i]n any Metro Station or train it is unlawful to...Carry any animals, flammable liquids or other dangerous articles." (Sorry, no Oxford comma...)

First: what does Carry and any modify? Presumably, it modifies all of the items. In other words, It is unlawful to carry any animals, carry any flammable liquids, or carry any other dangerous articles. It would be odd to suggest that you could bring have flammable liquids or other dangerous articles if you weren't carrying them. Even then, what does it mean to carry? If I have a (non-service) dog on a leash, am I really carrying an animal?

Animals: Without any other guidance, this would seem to mean all animals (but probably not service animals, who are already exempt). It's also a very general term in a list.

Flammable liquids: On the other hand, "flammable liquids" is a rather specific term that refers to items such as diesel, gasoline, and kerosene. The text suggests that the purpose here is to reduce the fire hazard. But what about that vegetable oil you bought at the store on the way home? It is flammable. What about lighter fluid? In a bottle? In a lighter?

Other dangerous articles: The ejusdem generis canon suggests that "other dangerous articles" should be  of the same general class specifically mentioned. But the classes specifically mentioned aren't necessarily very helpful. All animals and flammable liquids do not necessarily lend themselves to understanding what is meant by "other dangerous articles." Presumably, though, this means firearms (although it seems odd, especially in Washington, D.C., that they don't explicitly mention this), knives or other hand-held weapons. What about nunchuks? Brass knuckles? A baseball bat?

You can see here how a rather simple sounding regulation could be potentially very confusing. The Metrorail Rules and Manners page makes some reference to these rules, but does not provide clarification.

[Shmoocon 2013] These Go to Eleven: When the Law Goes Too Far

I'll be speaking at Shmoocon in Washington, DC (February 15-17, 2013). Here is my talk info:

Title: These Go to Eleven: When the Law Goes Too Far

Abstract: Agents line up at a non-descript door which houses command and control servers for a criminal botnet. They enter with a court order to shut it down and seize the servers--but these agents aren't law enforcement--they're from Microsoft. Somewhere across the ocean, a domain goes offline. Customers--some legit, some not--lose their work product. They are on the receiving end of civil asset forfeiture by ICE or DHS which seized the domain with no warning and scant due process. These are but two of the ways the law is pushing its own boundaries to go on the offensive to deal with sophisticated and complex cybercrime. It's time we stop and pause to review these tactics--the results might just surprise you.

The conference schedule is available here.

Metro murder: first or second degree?

Chavez Tyrek Myers is a 17-year-old from District Heights charged as an adult with second-degree murder while armed:

Court documents allege that he snuck up behind Griffin during a fight at the Metro station and plunged a knife into his chest.

I thought this was maybe a bit questionable--it seems like this could potentially be a first degree murder, not second? Here's the DC statute for first degree murder (emphasis in bold is mine):

§ 22-2401. Murder in the first degree - Purposeful killing; killing while perpetrating certain crimes.
 Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate an offense punishable by imprisonment in the penitentiary, or without purpose to do so kills another in perpetrating or in attempting to perpetrate any arson, as defined in § 22-401 or § 22-402, first degree sexual abuse, first degree child sexual abuse, first degree cruelty to children, mayhem, robbery, or kidnaping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, or in perpetrating or attempting to perpetrate a felony involving a controlled substance, is guilty of murder in the first degree. For purposes of imprisonment following revocation of release authorized by § 24-203.1(b)(7), murder in the first degree is a Class A felony.

Now here is the statute for second degree murder:

§ 22-2403. Murder in the second degree.
Whoever with malice aforethought, except as provided in §§ 22-2401, 22-2402, kills another, is guilty of murder in the second degree. For purposes of imprisonment following revocation of release authorized by § 24-203.1(b)(7), murder in the second degree is a Class A felony.

Myers "snuck up behind Griffin" which would tend to show deliberation and premeditation, no? Maybe the issue here is "kills another purposely" (first degree) vs. "kills another" (second degree). It's difficult to understand the distinction here, but it seems that perhaps the prosecutors doubt their ability to prove that Myers actually intended to kill Griffin, rather than just intent to inflict a serious bodily injury that resulted in Griffin's death.

#WMATA's holiday schedule doesn't add up

WMATA's "holiday" schedule on Monday was like politicians' budgets; the math doesn't add up:

@bangnowski @smallz827 our ridership is down compared to a normal weekday. Through 1p today was 189,400 vs 320,400 last Monday
— @wmata (@wmata) November 12, 2012

Rush hour trains are typically 3-4 minutes apart, but this was their plan:

@smallz827 @bangnowski this PM it should be about every 10-12 min.
— @wmata (@wmata) November 12, 2012

So, ridership is down ~1/3 from a normal Monday. But they reduced train service by 2/3.

One journey ends, another begins

A number of years ago, I began to get requests from people and small businesses to do work for them. I was already gainfully employed, but the work often sounded interesting. So in 2010, I started a small business and made the deal kosher with my then-employer (Booz Allen) by signing some paperwork approving my outside employment and agreeing to avoid conflicts of interest.

To be fair, I never intended to make much money off of this, what was then, a side business. But it would be nice to write a book chapter and get paid, or give a talk and get paid, and have it all be above board. And the work, frankly, was more challenging to me on a technical level. So those two things were really the point of my business.

About a year and half ago, due to a confluence of factors, I started looking to do my business full-time. This was a huge leap of faith for me (as I expect it would be for many people). Going on your own is risky and fraught with potholes. But I needed to do it. So I did--I quit my perfectly good and well-paying job to do it all on my own.

Much of the past year, I had so much work that I had to turn down more work on a regular basis. The infosec industry (at least in the DC metro area) is a buyer's market; the demand for work outstrips the supply. Within reason, you can ask for (and usually get) what you want. In fact, I had three separate contracts ongoing: one which was basically full-time, and two others that were part-time (and one of them, all remote work).

A few months ago, that full-time gig ended rather suddenly. I still had the other part-time work, but it wasn't enough to keep me busy (or pay the bills for very long). So I started looking.

My requirements started out pretty high: #1: 1099 work (many companies won't even look at you if you ask for this) at a comparable rate to what I was already making), #2: MD/DC work; northern VA is increasingly difficult to get to from where I live in MD due to traffic, construction, etc., although remote work would be ideal), and #3: exclusively focused on penetration testing. I have a background in SIGINT and CNE and a clearance, so all those folks jumped aboard, but very few of them met requirement #3. In fact, virtually all of the literally dozens and dozens of people I talked to met one or two of my requirements, but not all three. Asking for just one or even two of these requirements (instead of three), I have absolutely no doubt in my mind I could have found work within a week or two.

But there's another thread to this story, which began in 1997. I was graduating from Bloomsburg and decided to go to law school. I applied to, and was accepted to American University's law school. Very late in that process, I switched gears and decided to get my Master's Degree at Georgetown. So that was the first time I was accepted to law school, but didn't go

Toward the end of my time in the Navy, due to the shrinking size of my community, I decided to do a JAG transfer. Again, I was accepted to law school, but the Navy didn't approve my transfer package. That was the second time I was accepted to law school, but didn't go.

So over the last few years, having regretted not going before, I've been looking for opportunities to go back. And finally, the third time I was accepted to law school, I'm going. Part time, so it'll take four years instead of three, but I refuse to turn it down again.

Back to the present: independent contractor work and school don't get along well. There's travel sometimes, but mostly there isn't always a "regular" workday. Sometimes over the past year, I have worked nights and weekends. When you don't have something else going on, that's not a problem. But again, not really compatible with a school schedule.

So I essentially dropped my 1099 requirement and decided that I could be OK with it in return for the stability of a somewhat regular day job. I'm going back to Booz Allen, but in a different role: I'll be leading one of their penetration testing efforts. Sure, there will be some travel and other issues, but I'm going into it with full visibility and support from my boss, so I know I can make it work.

I will miss the challenges of working on my own--giving all of that up is a sacrifice--and given the circumstances, I would do it again in a heartbeat.

When I was single, I looked at guys who were married (and with kids) and wondered how they did it all. Now I look back and wonder, how could I have done it all without Tracy? She has always been my bedrock of emotional support; never wavering a second. Of this I am truly confident: I could not have done this without her.

In one of those unique circumstances that just seems to work out that way, I start law school and my new job on the same day. How's that for a new journey!

WMATA, sovereign immunity, and AEDs

Reminder: I am not a lawyer (yet), and this is not legal advice.

Under what conditions might a lawsuit against the Washington Metropolitan Area Transit Authority (WMATA) succeed in overcoming WMATA's sovereign immunity, for failing to properly maintain an installed automated external defibrillator (AED)?

To understand this, we need to review the concept of sovereign immunity and how it applies to WMATA; and more importantly, the associated waivers of sovereign immunity. Essentially, sovereign immunity is a principle that states are immune from being sued without their consent (or, by their own waiver).

See the following from Morris v. WMATA (781 F.2d 218), which is a nice summation of the history of WMATA's sovereign immunity:

On November 6, 1966, Congress consented to, and enacted for the District of Columbia, a compact whose signatories were Maryland, Virginia, and the District of Columbia....The Compact created WMATA to operate a mass transit system for the District of Columbia and the surrounding suburban areas of Maryland and Virginia.

...

WMATA's sovereign immunity exists because the signatories have successfully conferred their respective sovereign immunities upon it. Congress has power to legislate for the District of Columbia and to create an instrumentality that is immune from suit....

The relevant portion of the WMATA Compact is Section 80. The section in bold below is important because this identifies WMATA's partial waiver of immunity:

80. Liability for Contracts and Torts

The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any proprietary function, in accordance with the law of the applicable Signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function. The exclusive remedy for such breach of contracts and torts for which the Authority shall be liable, as herein provided, shall be by suit against the Authority. Nothing contained in this Title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the Zone of any immunity from suit.

So the distinction here is a matter of function: WMATA cannot be sued for "governmental" functions but it can be sued for "proprietary" functions. So, what is the difference? Let the courts answer (all citations omitted for clarity):

Federal courts...interpreting the WMATA Compact have adopted certain tests

to aid in their determination of which functions are “governmental” and thus immune from suit.

Activities that are “quintessentially governmental” fall within the scope of § 80's grant of

immunity. Such functions have been defined as those activities exclusively within the purview of the government by way of its legal and authoritative nature. The oftcited prototypical governmental function as pertains to WMATA is the act of maintaining a police force.

So, immunity applies to governmental functions but not proprietary ones. If a function is proprietary, a second test must be applied:

If it is not discretionary, as where a “statute, regulation, or policy specifically prescribes a course of action for an employee to follow,”  the activity is “ministerial” and not protected by governmental immunity. If, on the other hand, the activity is “discretionary,” the court must decide whether it falls within what the Supreme Court has termed the “exception for discretionary governmental functions,” commonly referred to, by the federal appellate courts, as the “discretionary function exception.” If the discretionary function exception applies to the challenged activity, then that activity, like activity falling within a quintessential governmental function, “constitute[s] [a] ‘governmental’ activit[y] within the meaning of the ‘governmental/proprietary’ test” of section 80 of the WMATA Compact, and is thus shielded from tort liability.

Got it? Good (yeah, it's a little confusing to say the least!).

Essentially, the function must be both proprietary and also ministerial or WMATA's sovereign immunity applies.

Here's an example. In this case, "WMATA failed to maintain, repair, inspect, or operate the escalators at the Anacostia station such that they became wet and icy, and second, that WMATA failed to warn the public of the wet and icy escalators...WMATA concedes that its actions were not 'quintessentially governmental activities.'" So the first part of the test is conceded; the function of maintaining, repairing, inspecting and operating of escalators is not a governmental function, but a proprietary one. However, the court found that "discretion exercised over the maintenance, repair, inspection, and operation of the escalators is 'subject to policy analysis' and thus discretionary." So escalator maintenance fails the second test because it is discretionary and not ministerial. Thus, WMATA's sovereign immunity applies.

Can we assume that AEDs are similar to escalators in that the function of maintaining, repairing, and inspecting of AEDs is not a governmental function, but a proprietary one? I don't see any reason why not. Absent a strong argument otherwise, the first test appears to be met.

WMATA has much less of an argument if they want to suggest that function of maintaining, repairing, and inspecting AEDs is subject to discretion. There may be differing methods of dealing with escalators in cold and wet weather, but the maintenance of AEDs seems pretty straight forward. In fact, to have AEDs installed without a specific maintenance procedure seems negligent, no?

To establish that the function of  maintaining, repairing, and inspecting of AEDs as a ministerial function rather than a discretionary one, an argument would be bolstered by specific instructions, or policies, to check AEDs on a regular basis. A further example would be the District of Columbia's AED law which states in part that:

The defibrillator is maintained and tested according to the manufacturer’s operational guidelines, and written records of the maintenance and testing are maintained...

(For the record, I know the action took place in the Pentagon Metro Station in Virginia, I am simply citing the DC law as an example of a positive duty to maintain the AED device. I haven't found related laws in Virginia or Maryland yet).

This DC law (whether or not it is truly applicable to WMATA remains to be seen) seems to suggest a positive duty to maintain the AED device; such would make it (in my opinion) a ministerial function. Even absent specific laws in MD or VA, some cases suggest that certain organizations may have a duty to maintain.

In such a case, the function of maintaining AEDs would be both proprietary and ministerial and thus not subject to WMATA's sovereign immunity; as such, WMATA could be sued for failing to maintain the AED (this post does not elaborate on whether or not such failure contributed to the death of the passenger, although common sense suggests it is probable).

I am curious to hear your thoughts and opinions.

Appeals court derails use of GPS in case

From the Washington Times:

A sharply-divided federal appeals court has upheld a ruling that police can't use GPS to track a suspect's vehicle without a warrant, rejecting a bid by the Justice Department to have the life sentence of a convicted drug dealer reinstated.

In a case closely watched by national civil liberties groups, the U.S. Court of Appeals for the District of Columbia Circuit in a 5-4 decision upheld a lower court ruling that GPS data proved 'essential to the government's case' against Antoine Jones and a warrant was needed.

The decision, released late Friday without comment, came three months after a three-judge panel reversed the life sentence of Jones, who was convicted of running a drug ring from a D.C. nightclub. His lawyers had argued that the government's use of GPS technology violated his 'reasonable expectation of privacy.'

The decision in its entirety is here:

United States of America v. Antoine Jones