Warrantless Searches for Probationers: The Reasonableness of SCOTUS’s Balancing Test

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

When convicted felons are released on probation, may officers conduct a warrantless search of their homes without violating any constitutional rights protected under the Fourth Amendment? The Supreme Court, by conducting a balancing test, holds that officers may do so when they have a “reasonable suspicion” that probationers are violating their probation conditions; a standard of protection lower than the “probable cause” standard that protects fully free citizens from warrantless searches.[1] The specific fact-pattern before the Court that prompted this rule, however, involved a probation condition that explicitly stated a probationer will be subject to warrantless searches.[2]

But when the probationary condition is less explicit and merely subjects the probationer to unannounced home visits at any time, does the Court’s balancing test still apply, or does the legal analysis change? A current circuit split exists regarding that precise issue—the Fourth Circuit finds such warrantless searches based on a “reasonable suspicion” categorically unlawful, while the Eleventh Circuit permits them when they satisfy the Court’s balancing test.[3] Although the courts’ different interpretations are sensible, as a public policy matter, the Eleventh Circuit’s interpretation should be adopted because it better promotes the rehabilitative and societal-protective purposes of releasing individuals on probation.

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The Legality of Preventing Future Crime: Johnson v. United States

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

“Minority Report” is a futuristic science fiction film in which crime is thwarted before it takes place.[1] In the film, a specialized police department, “Precrime,” apprehends would-be murderers before the murder is committed. Clairvoyant “Precogs” indicate that someone will commit a murder and Precrime apprehends the would-be murderers. This sci-fi notion of preventing crime has found reality in modern law. Preventing crime is part of the rationale behind the Armed Career Criminal Act (ACCA). The ACCA imposes longer prison sentences on criminals with criminal histories in order to prevent future harm.[2] In Johnson v. United States, a case to be argued in front of the Supreme Court on April 20, 2015, the Court must determine what constitutes a “violent felony” under the ACCA, and in the process will clarify a circuit split on this issue. Furthermore, the Court’s decision will significantly impact individuals in situations similar to that of defendant Johnson across the country, whose prison sentences depend on the scope of what is considered a “violent felony.” The Eighth Circuit has decided that possession of a short-barreled shotgun is a violent felony, but the Supreme Court should reverse this decision and hold that mere possession of a short-barreled shotgun is not a violent felony.

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Should There Be a Scienter Requirement for Designer Drugs?

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

Advancements in chemistry and technology have lead to unprecedented innovation in the drug market. Some criminal-minded people have circumvented federal drug laws by creating so-called “designer drugs” like bath salts. The law’s treatment of those manufacturing and distributing designer drugs has led to a contentious circuit split. The split hinges on whether the government must prove that these “underground chemists” knew that they were dealing drugs analogous[1] to controlled substances in order to be convicted of a crime. The courts have interpreted the statute differently as to the scienter requirement applied to analogue substances. Of the circuits that have decided this issue, the majority, led by the Seventh Circuit, has concluded that the prosecution must prove that the defendant knew of the similarities between the controlled substance and the analogue. The minority, in contrast, has determined that the government only needs to prove that the substance was intended for human consumption. Given the plain language of the statute, the majority’s stance is the more reasonable, logical approach, and so should be adopted by the Supreme Court when it reviews this issue later this Term.

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The Formal Notice Requirement Behind Rule 11 Sanctions: Why an Informal Threat Should Not Be Treated as a Binding Promise

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

Talk is cheap, put your money where your mouth is, et cetera—all idioms that reflect a common underlying theme that in order for one’s statements to be taken seriously, one must take a formal action threatening stern consequences. Anything less, and others will think the statements insignificant. In a recent decision from the Sixth Circuit Court of Appeals in Penn LLC v. Prosper Bus. Dev. Corp., the court found that the same theme applies to civil procedure—that for purposes of Rule 11 sanctions, an informal warning letter is insufficient, and formal service of a motion is required.[1] While other circuit courts have reached similar conclusions,[2] the Seventh Circuit disagrees, holding that strict compliance with the formalities of the sanctions process is not required.[3] However, in consideration of the court’s textual arguments, policy rationale, and practical implications, the reasoning of the Sixth Circuit is more persuasive, and other jurisdictions should not follow the Seventh Circuit’s interpretation of Rule 11.

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Constructive Discharge: Drawing the Line

Author: Matt Huffman, Associate Member, University of Cincinnati Law Review

In Green v. Donahoe,[1] the Tenth Circuit considered when the limitations period starts for a constructive discharge claim under Title VII of the 1964 Civil Rights Act. The court held that the forty-five day clock starts ticking on the date of the employer’s alleged discriminatory act that causes the employee to resign. In so holding, the Tenth Circuit agreed with similar holdings by the Seventh Circuit and the District of Columbia.[2] The Second, Fourth, and Ninth Circuits, however, have all considered the same issue and concluded that the limitations period for Title VII constructive discharge claims starts to run on the date the employee resigns. In its decision in Green, the Tenth Circuit fell on the wrong side of an already blurred line, ensuring an increase in the premature filing of constructive discharge claims by employees eager to preserve their right to bring a claim.

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Specialty License Plates as Government Speech: How the Supreme Court Is Likely to Resolve a Five-Way Circuit Split

Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review

Currently, all fifty states in the U.S. require vehicles to be registered and fitted with a unique license plate. Historically, these plates were generic and distinguishable only by the series of letters and numbers used to identify the owner of the vehicle. However, with time, license plates were customized by state with distinctive markers such as state seals, slogans, flags, etc.[1] Beginning around the late 1980’s, states began issuing specialty license plates, decorated with emblems and verbiage designed by non-profit organizations and political groups, as a means to generate additional revenue.[2] As these plates became more popular, litigation around the First Amendment implications of specialty plates increased.[3] But, thirty years later, debate over this issue—whether specialty plates qualify as government or private speech and to what extent states have the right to champion one viewpoint or another via this forum—is anything but settled. In fact, the Supreme Court is set to readdress the matter later this year through review of a dispute out of the Fifth Circuit. And, although license plate text may seem like a mundane legal issue, the Court’s decision here could have potentially far-reaching implications.

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Are Magistrate Judges’ “Additional Duties” Stinking Up the Courtroom?

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

On July 14, 2014, the Seventh Circuit in United States v. Harden held that the Federal Magistrates Act (FMA) does not permit magistrate judges to accept guilty pleas, even if both the prosecution and defense consent.[1] The decision severely limits a district court’s ability to manage its caseload and conduct business efficiently. Thankfully, this view on the Federal Magistrates Act is not universal: there is an emerging circuit split regarding whether a federal magistrate judge may accept a guilty plea to which all parties consent. The FMA contains a catch all provision that states, “[a] magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.”[2] The split arises out of the Supreme Court’s decision in Peretz v. United States and how to interpret the “additional duties” provision of the statute. In Peretz, the Court allowed a magistrate judge to conduct voir dire because both the prosecutor and defense counsel consented. Furthermore, the Court created a test for whether a magistrate judge has jurisdiction to conduct voir dire under the FMA. After Peretz, appellate courts have largely disagreed over what duties can fall under the “additional duties” of the FMA. The Seventh Circuit has held that the acceptance of guilty pleas is “too important” to fall under this provision. In so doing, it disagreed with the Fourth Circuit, which had previously held that the acceptance of guilty pleas is comparable to other duties that magistrates are undoubtedly able to perform.[3] In light of both decisions, it is evident that the Fourth Circuit correctly interpreted the FMA and Peretz because the general language in the statute proves that Congress intended to give federal judges leeway to experiment with possible improvements in the efficiency of the judicial process.[4] Furthermore, the Seventh Circuit’s ruling allows defendants to enter a plea but then revoke it with no consequences, which in turn leads to judicial waste.

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True Threats and the First Amendment: Objective vs. Subjective Standards of Intent to Be Revisited in Elonis v. United States

Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review

Last month, the Supreme Court heard oral arguments in an appeal of the Third Circuit’s decision in United States v. Elonis.[1] Anthony D. Elonis was convicted under 18 U.S.C. § 875(c), a federal statute that prohibits making “any threat to injure the person of another” via the internet.[2] Elonis does not dispute that he posted Facebook status messages regarding his desire to kill his wife, detonate bombs in the presence of law enforcement, and shoot up a local elementary school (among other threats).[3] Rather, he disputes that these were intended as threats, stating that he was merely “expressing frustration.”[4] At trial, the jury was instructed to apply an objective standard and construe the threats as they would be perceived by a “reasonable person,” not according to the standard requested by Elonis, which would have asked the jurors to look at the subjective intent of the speaker.[5] After the Third Circuit affirmed Elonis’ conviction, the Supreme Court granted certiorari on the issue of whether an objective or subjective standard is required by the statute under which Elonis was charged and, if the former, whether such a standard is constitutionally permissible as part of any “true threat” statute that regulates pure speech.[6]

In being asked to clarify this matter, the Court has an opportunity to extend protection for victims of stalking, harassment, and violence often associated with these crimes by permitting the objective standard of intent applied by the Third Circuit. Alternatively, if the Court finds that the First Amendment requires a subjective intent standard with respect to these laws, this ruling could further insulate the perpetrators of such crimes from prosecution by making conviction more difficult than the actual statute and principles of justice require. These divergent possibilities have garnered the attention of free speech activists and victims’ rights advocates alike, both of whom are concerned by a potential change in the law. But their concerns are likely unnecessary. Although it is possible that the Court will dramatically change the way lower courts review “true threat” statutes, it is more likely that the standard will stay exactly the same.

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Confusion in Lock-Up: Irrevocable Agreements and Section 11 Claims

Author: Dan Stroh, Associate Member, University of Cincinnati Law Review

On October 6, 2014, the Supreme Court denied a writ of certiorari in Moores v. Hildes, which involved the interpretation of § 11 of the Securities Act of 1933.[1] Section 11 protects investors by requiring disclosures regarding the purchase of securities and imposing liability on actors responsible for misstatements or errors in information regarding the securities.[2] By holding directors and other company leaders responsible for the accuracy of required statements, § 11 aims to instill confidence in securities investors. Generally, the Act does not require an investor to show he relied on misleading information in a company’s registration statements to impose liability on those responsible for the accuracy of the information.[3] However, the Eleventh and Ninth Circuits are split as to whether a plaintiff must show reliance on a misleading registration statement when the registration statement was issued after the shareholder entered a binding lock-up contract in a merger. By choosing not to review Moores v. Hildes, the Supreme Court refused to address the issue of reliance when an investor utilizes § 11 to enforce accountability for this type of error. Because § 11 is one of the few remaining areas of securities law where injured investors turn for protection from misstatements affecting the value of their investments,[4] the Supreme Court’s failure to affirm the ruling in Hildes will result in continued confusion, lack of protection for investors, and disparate rulings that vary by jurisdiction.

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Tax Characterization of FCA Settlements: First Circuit Says, “No Agreement? No Problem.”

Author: Matt Huffman, Associate Member, University of Cincinnati Law Review

On August 13, 2014, the First Circuit addressed an issue of first impression in Fresinius Medical Care Holdings, Inc. v. United States,[1] holding that a court may consider factors beyond a tax characterization agreement when determining the deductibility[2] of a settlement payment under the False Claims Act (FCA).[3] In so holding, the court rejected the government’s argument that the Ninth Circuit had appropriately adjudicated this issue in Talley Industries, Inc. v. Commissioner[4] and that the only pertinent inquiry in determining the deductibility of an FCA settlement payment is whether a tax characterization agreement exists between the government and the settling parties. The court explained its disagreement with the Ninth Circuit: “[i]f Talley stands for the proposition asserted by the government, then Talley is incorrectly decided and does not deserve our allegiance.”[5] In its decision, the First Circuit correctly parted from Talley and determined that the economic realities of a settlement agreement should be considered in the absence of a tax characterization agreement. Nonetheless, in adopting this test, the First Circuit should have gone further to hold that economic realities should not be ignored even in the presence of such an agreement. Considering that FCA settlements often involve hundreds of millions of dollars, the First Circuit’s decision will have significant tax consequences for companies settling FCA suits in the future.

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