The EDVA made the national news this week with a story that the City of Norfolk has sued the Commonwealth of Virginia in the district seeking a declaratory judgment that it could move a statue in downtown Norfolk commemorating the efforts of the Confederacy during the Civil War.  A copy of the Complaint is here.  At issue is a Virginia statute that criminalizes the removal of monuments “erected for the purpose of marking the site of any engagement fought during the War between the States” and another statute that states  “it shall be unlawful for the authorities of the locality, or any other person or persons, to disturb or interfere with any monuments or memorials .  . .[including] removal of, damaging or defacing monuments or memorials, or, in the case of the War Between the States, the placement of Union markings or monuments on previously designated Confederate memorials.”

For those who still vividly remember the ever-prevalent “issue spotter” exam in law school, read the Complaint at your own risk.  The lawsuit alleges constitutional violations and asserts civil rights claims under 42 U.S.C. § 1983.  In particular, the Commonwealth has allegedly violated the City’s First Amendment rights because the legislation “contains a content-based prohibition that operates to compel the City and its City Council to continue to indefinitely present a particular message” and its Fourteenth Amendment rights because the legislation removes Norfolk’s “right to exclusive possession of its property.”

From my review of the Complaint, I have several legal questions that the case may potentially answer:

• Does a City have First Amendment Rights?

The Complaint certainly alleges it does; Paragraph 25 states that the “City and its City Council have a right to free speech, which right is protected by the Constitutions of both the United States and the Commonwealth of Virginia.” But the rights of municipalities are unclear.  For further reading on this subject, check out a law review article by Matthew A. De Stasio analyzing the first amendment issue in the context of state laws requiring municipal body cameras for police officers here.  Indeed, the scholarship on municipal constitutional rights is extensive.

• Does a City have Fourteenth Amendment Rights?

Again, there is considerable scholarship on this issue arguing that such rights can and do exist.  But that scholarship is against a backdrop of language from the Supreme Court that states explicitly that a “City cannot invoke the protection of the Fourteenth Amendment against the State.”  Newark v. New Jersey, 262 US 192 (1923).

• Even if Cities Have These Constitutional Rights, Can They Assert them in Federal Court?

The Eleventh Amendment can be a bar to suits brought in federal court against a state. Here, the only defendants are the Commonwealth itself and two individuals in their official capacity.  The jurisprudence around the Amendment is complex and contradictory, but it is clearly a potential issue in this case, at least regarding some of the claims for relief.

• Can a Municipality Bring Suit under § 1983?

The City takes care to assert in Paragraph 7 of the Complaint that it is “recognized as a ‘Person’ under Virginia Law in all instances, unless expressly excepted.”  I found the language odd until I realized that the text of § 1983 only protects “any citizen of the United States or person within the jurisdiction thereof.”  The statute actually uses the term “person” twice.  Once to describe who can bring suit, and another time describing who can be liable.  Is a municipality a person entitled to bring a claim under the statute?  Whether suits can be brought against municipalities has been subject to considerable litigation, including in Monell v. Dep’t of Soc. Svcs., 436 U.S. 658 (1978).  That ruling concludes that under the first use of the term “person,” a municipality is a person subject to suit.  And although you would normally read terms within a statue to mean the same thing, this is an interesting wrinkle to a § 1983 suit.

The real question may be, however, whether these thorny legal issues come before Judge Arenda Wright Allen and the Court.  Virginia’s Attorney General, Mark Herring, gave a statement after the suit was filed that he “has long called for the repeal of this law and removal or relocation of Confederate statues.”  It will be interesting to see how, or if, the Commonwealth defends this suit.  We will keep an eye out for responsive pleadings.

As we noted in a previous post, the parties in that case consented to a Magistrate Judge assuming jurisdiction over their claims.  That option is presented in every civil case, and is a topic that is always addressed in the initial pretrial conference.  But how often do parties consent to use a Magistrate?

We looked back at the 249 “Core Civil” cases from 2017 to determine how often the procedure was utilized.  The cases are relatively easy to identify because the Court’s technique of providing case numbers includes the initials of both the presiding Article III Judge and the Magistrate Judge.  Where only a single set of initials is used, a consent was filed.

We identified only 15 cases, or approximately 6% of all cases, in which both parties consented to the appointment of the Magistrate Judge.  The parties may consent for any number of reasons, and there are far too few cases and too little information to make any definitive determinations about what led the parties to consent.  Within that small population, cases were transferred away from all of the Article III Judges other than Senior Judge Doumar, and Magistrate Judge Miller took over case management in 9 of the 15 cases.

The case numbers where consent was granted were:

2:17-cv-00020-DEM (Smith);

2:17-cv-00048-DEM (Jackson);

2:17-cv-00087-RJK (Allen);

2:17-cv-00167-DEM (Morgan);

2:17-cv-00174-RJK (Morgan);

2:17-cv-00267-DEM (Morgan);

2:17-cv-00355-DEM (Davis);

2:17-cv-00378-DEM (Allen);

2:17-cv-00423-LRL (Allen);

2:17-cv-00444-DEM (Morgan);

2:17-cv-00445-LRL (Davis);

2:17-cv-00536-DEM (Davis);

2:17-cv-00560-RJK (Jackson);

2:17-cv-00622-LRL (Smith);

2:17-cv-00634-DEM (Morgan).

Judge Doumar issued an interesting opinion In Re Vulcan Construction Materials, LLC, As Owner of the Tug Jeanie Clay, Case No. 2:18-cv-00668.  The case came before the Court as a maritime Limitation of Liability Act case in which a vessel owner petitions the Court to limit its liability for any claims arising during a vessel’s voyage to the value of the vessel at the conclusion of the voyage.   The Act, adopted in 1851, was a measure to protect shipowners from unlimited liability and to encourage the competitiveness of the American shipping industry.  The Act has been subject to significant criticism as anachronistic, but that is a topic for another day.

Today, we focus on the issue that Judge Doumar decided, which was whether the notice that an injured worker provided was sufficient to put the shipowner on notice of a potential claim.  Such notice is required to trigger the start of a six-month clock on filing a Petition under the Act.

In this case, the style and appearance of the notice is excepted on page 6 of the Opinion.  The Opinion notes that the notice “does not contain letterhead indicating it was sent from a law firm (or any legitimate enterprise, for that matter).”   The Opinion also observes that there was no subject line to the letter, and that it only lists a single signer of the letter, and thus “no indication of who ‘we’ is” when the letter states “we represent.”  The Court also observes that the only indications that the signatory was a lawyer was the use of the notation “VSB No.” (presumably Virginia State Bar Number) and the title “Esq.”

Considering the totality of the circumstances, Judge Doumar concluded that “the style and appearance of the note fail to alert a recipient to a potential claim, while the substance similarly fails to ‘make clear that claimant intends to seek damages from’ Vulcan.”  This was despite the fact that the letter was titled “Notice of Claim” and that it stated that “A claim may be filed.”

The July 16, 2019, Order is postured as a Motion for Reconsideration, but the Court concluded that there was no new evidence on the issue nor any clear error in the Court’s previous ruling.  You can read the opinion here.

Interestingly, within two weeks of the Opinion, a Consent to Jurisdiction was filed and the case was reassigned to a Magistrate Judge.

Whether for work or vacation, many of us have traveled to and from North Carolina.  Some of us have seen or interacted with the state’s law enforcement officials.  I had my own interaction once; the officer and I were very cordial to one another, and the speeding ticket he issued was deserved.  But others take a different approach to dealing with North Carolina law enforcement.

The North Carolina Court of Appeals issued a ruling on August 6, 2019, in North Carolina v. Ellis, COA 18-817, which can be found here.  This non-EDVA case is too interesting to ignore.  It was an appeal from a conviction of Mr. Ellis for “resisting, delaying, and/or obstructing a public officer during a stop.”  Mr. Ellis’s criminal conduct was his refusal to provide identification to the officer and his refusal to exit the vehicle when requested.  The subject of the appeal, however, was what Mr. Ellis did before the traffic stop.

In the Court’s words, while a State trooper was assisting a motorist on the side of the highway, the trooper observed Mr. Ellis “make a hand-waving gesture in the trooper’s general direction.”  But then Mr. Ellis changed the gesture to “an up-and-down pumping motion with his middle finger extended.”  The dissent’s description is far more colorful, explaining that Mr. Ellis was “shooting him the bird.”

Both the dissent and the Court’s opinion agree on one key point: it is probably not illegal to “flip off” a law enforcement officer.  As the rap group N.W.A. would tell you, you have a First Amendment right to direct obscenities towards the police.  That said, I would not advise it, as Mr. Ellis’s case suggests.

The issue before the Court was whether Mr. Ellis’s gesture created reasonable suspicion of a crime sufficient to justify an officer instigating a traffic stop.  I cannot give much more insight into the Court’s thought process, so I’ll leave you with its reasoning:

[W]e conclude that the trooper had reasonable suspicion to initiate the stop of Defendant. The trooper saw Defendant make rude, distracting gestures while traveling on a highway in a moving vehicle in the vicinity of other moving vehicles. A reasonable, objective officer having viewed Defendant’s behavior could believe that a crime had been or was in the process of being committed. For instance, the crime of disorderly conduct in North Carolina is committed where a person “makes or uses any . . . gesture . . . intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.” N.C. Gen. Stat. § 14-288.4(a)(2) (2017). Defendant’s actions, both his waving and middle finger taken together, aimed at an unknown target could alert an objective officer to an impending breach of the peace. Again, the reasonable suspicion standard may be satisfied even if the trooper did not witness an actual crime but only enough to infer a need to investigate further.

The dissent by Judge Arrowood better captures my view of the issue.  As it explains:

There is also no testimony or indication that anyone other than the trooper, the person to whom the obscene gesture was directed, saw it. There was also no indication that the vehicle was creating any danger to other motorists on the road. Even viewing the evidence in a light most favorable to the State, what we have here is a passenger in a vehicle making an uncalled-for obscene gesture. While defendant’s actions were distasteful, they were, in my opinion, within the realm of protected speech under the First Amendment of the United States Constitution. Given that this was protected speech, I believe that the stop was not supported under the reasonable suspicion test of the Fourth Amendment. I do not believe that this action was sufficient to justify the trooper in becoming alert “to a potential, future breach of the peace,” because he did not see any evidence of aggressive driving or other interactions between the vehicles on the road that would suggest road rage. If that was truly his concern he could have followed the vehicle further to see if there was evidence of some road rage toward other vehicles. He did not do so, nor did he testify that he saw any improper driving. He chose not to take any actions to determine if road rage was occurring. Instead, he initiated an improper search and seizure to engage in an improper fishing expedition to find a crime with which to charge the defendant who had directed an obscene gesture to him moments earlier.

Whatever your view of the issue, I think we can all agree that Mr. Ellis can appropriately sing loudly out his window next time he drives down the highway the great Clash lyrics “I fought the law, and the law won.”  But I’d suggest he keep his hands inside the car and out of view while he’s singing.

On July 24^th, we discussed a suit to enjoin a permit issued by the Army Corps of Engineers that would allow the construction of a parking lot, residential buildings, and trails in the Pungo neighborhood of Virginia Beach.  In the Complaint, the Plaintiff was seeking a preliminary injunction to stop any further activity.

It appears we will never get a ruling on the preliminary injunction.  The Court has entered an Agreed Order from the parties withdrawing the Motion for Preliminary Injunction and setting an agreed briefing schedule for Summary Judgment.  The initial brief will be filed at the end of August, and subsequent briefing will last through October.   When the briefs have matured, we will take a look at the case again.

On July 10, 2019, the Sixth Circuit issued an opinion in Wilson v. Safelite Group, Inc., No. 18-3408.  The case deals with the issue of whether an employee benefit plan is covered by ERISA and whether certain state law claims by the former CEO of the Defendant are preempted.  But unless you practice in this area, you can actually skip the first 12 pages of the opinion.  For those non-ERISA practitioners, rest assured that I do not have any interest in ERISA today.  Much like an online article where the interesting information may be in the comments, in this case the interesting issues are in a set of dueling concurrences.

The first concurrence is written by Judge Thapar, appointed to the Sixth Circuit in 2017.  If the name sounds familiar, he was on the list of “Potential Supreme Court Justice Picks” that the then President-elect Donald Trump released in 2016.  Judge Thapar takes the concurrence as an opportunity to stump on behalf of “corpus linguistics” as a “tool” that Courts should consider adding to their “belt.”   As Thapar explains it, he is encouraging judges throughout the country to use searchable databases to find specific examples of how a word is used at a given time.  He provides some examples about how the U.S. Supreme Court could have used such a database to define “use” of a firearm in Smith v. United States, 508 U.S. 223 (1993) or “carrying” a firearm in Muscarello v. United States, 524 U.S. 125 (1998).  Judge Thapar then uses the corpus linguistics tool to search the Corpus of Historical American English during the 1960s and 1970s to determine whether the phrase “results in” was ever used in the database to mean “requires.”  After reviewing a few hundred results (thankfully, he only quotes a few in the opinion), Judge Thapar concludes that the Court’s interpretation of the terms of ERISA are consistent with this technique.

Judge Stranch, a more senior judge on the Sixth Circuit with a decade of experience on that bench, disagrees with Judge Thapar and takes the opportunity in her concurrence to question the technique.  Her concerns are largely practical.  Why worry in an ERISA case about how the term “results in” was “used in a book about farm animal management in 1976, or in an article from Sports Illustrated about New York’s cool spring weather in 1964?”  She suggests that the use of corpus linguistics is a task better left to “trained lexicographers” and judges would be better served to stick with dictionaries.  She makes clear that she is not excluding the use of corpus linguistics categorically, but that it would be the unusual case in which it would be useful.

You can decide who has the better of the debate.  But the technique is out there, and the attention to it will only grow after this opinion.  A Lexis search indicates this is only the thirteenth court opinion to use the term “corpus linguistics”—and the first at the federal level.  But this concept has started to appear in amicus curiae briefs to the U.S. Supreme Court and  the Fourth Circuit (brief here).  If the judges are talking about this technique, you may want to make sure you understand what it is.

You can try your hand at the technique here; I discovered the term “corpus linguistics” only appears twelve times in the Corpus of Contemporary American English.