Supreme Court back in session: Racial gerrymandering, civil asset forfeiture, and mandatory minimums

The Supreme Court is back in session next week, hearing important cases on racial gerrymandering, civil asset forfeiture, and mandatory minimums in its first 30 days of the term.

OCT 2: Pulsifer v. United States

Pulsifer v. United States is about the interpretation of a federal law that allows defendants to avoid mandatory minimum sentences for certain nonviolent drug crimes. In a twist that originalists and textualists on the Supreme Court are sure to love, the case centers around whether “and” means “and” or if “and” means “or.”

Mark Pulsifer pleaded guilty to one count of distributing at least fifty grams of methamphetamine. He faced a mandatory minimum sentence of 15 years in prison due to a prior “serious drug felony” conviction. However, according to the First Step Act, defendants convicted of nonviolent drug crimes are eligible for individualized sentencing—avoiding the mandatory minimum—if they satisfy several criteria. This includes the requirements that the defendant did not possess a firearm or threaten violence while committing the drug crime and cooperated fully with the government. Key to the case before the Supreme Court, however, is a provision outlining prior offenses that disqualify a defendant from individualized sentencing:

…the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—

(1) the defendant does not have—

(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the sentencing guidelines;

  • In order to calculate a defendant’s criminal history points, the United States Sentencing Commission adds points based on the length of each prior sentence. For example, a prior sentence of imprisonment exceeding one year and one month is assigned 3 points.

Pulsifer had two 3-point drug offenses but no 2-point violent offenses. Therefore, he argued that he was eligible for individualized sentencing before he did “not have—(A) more than 4 criminal history points … , (B) a prior 3-point offense … ; and (C) a prior 2-point violent offense.” The district court and 8th Circuit Court of Appeals ruled against Pulsifer, finding that meeting any one of the criteria disqualifies a person from circumventing the mandatory minimum sentencing. Had Pulsifer’s case been heard in the 9th Circuit, however, he would have received individualized sentencing:

The Seventh, Eighth, and Ninth Circuits have split 1–2 over the meaning of “and” in § 3553(f)(1). In the Ninth Circuit, “and” means “and.” A defendant must have (A) more than 4 points, (B) a 3-point offense, and (C) a 2-point violent offense before § 3553(f)(1) disqualifies him from safety-valve relief. In the Seventh and Eighth Circuits, in contrast, “and” means “or.” A defendant can satisfy § 3553(f)(1) and prove his eligibility for safety-valve relief only if he shows that he does not have (A) more than 4 points, (B) a 3-point offense, or (C) a 2-point violent offense— i.e., that he has none of the above.

Pulsifer asks the U.S. Supreme Court to resolve whether “and” means “and” or if “and” means “or” — and, as a result, determine how many people charged with non-violent drug crimes will be exempt from mandatory minimums.

OCT 3: CFPB v. Community Financial Services Assn

The Consumer Financial Protection Bureau (CFPB) is a federal agency that implements and enforces consumer protection laws in the financial sector, supervising banks, lenders, credit reporting agencies, and debt collection companies. Congress created the CFPB after the financial crisis of 2007–2008 as part of the Dodd–Frank Wall Street Reform and Consumer Protection Act.

In 2017, the CFPB issued a new rule regulating unfair and abusive practices related to short-term loans. One provision prohibits lenders like payday loan companies from making more than two consecutive attempts to withdraw payments from a consumer’s account when previous attempts have failed due to insufficient funds—preventing lenders from causing a consumer to incur excessive fees.

A trade association representing the payday loan industry, the Community Financial Services Association of America, sued the CFPB, seeking an order to block the short-term loan rule. The Association argued that the CFPB exceeded its statutory authority in making the rule and, even if it did not, the Bureau is unconstitutionally structured and should be stripped of its authority anyway.

The district court found in favor of the CFPB. The Association appealed to the 5th Circuit, drawing one of the most favorable panels possible: Don Willet, Cory Wilson, and Kurt Engelhardt, all Trump appointees. The panel sided with payday lenders, even though they say “for the most part, the [Association’s] claims miss their mark.” The one claim the panel embraced just so happens to void the CFPB entirely:

We agree that, for the most part, the Plaintiffs’ claims miss their mark. But one arrow has found its target: Congress’s decision to abdicate its appropriations power under the Constitution, i.e., to cede its power of the purse to the Bureau, violates the Constitution’s structural separation of powers. We thus reverse the judgment of the district court, render judgment in favor of the Plaintiffs, and vacate the Bureau’s 2017 Payday Lending Rule…

Because the funding employed by the Bureau to promulgate the Payday Lending Rule was wholly drawn through the agency’s unconstitutional funding scheme,17 there is a linear nexus between the infirm provision (the Bureau’s funding mechanism) and the challenged action (promulgation of the rule). In other words, without its unconstitutional funding, the Bureau lacked any other means to promulgate the rule.

The U.S. Supreme Court will consider whether the statute providing funding to the Consumer Financial Protection Bureau is unconstitutional.

OCT 4: Acheson Hotels v. Laufer

Acheson Hotels v. Laufer is about whether people who “test” businesses for compliance with the Americans with Disability Act (ADA) have standing to sue when they have no intention to visit the location.

Deborah Laufer is a disabled person who lives in Florida and is dependent upon a wheelchair for independent movement. She is a self-appointed ADA “tester” who searches the internet for hotel websites that do not provide adequate information for people with disabilities. When she finds a hotel that is not in compliance, she files a lawsuit seeking a court order that the business comes into compliance and money to cover attorney’s fees.

According to the ADA, all hotel websites must identify and describe the accessible features of the property and the accessible guest rooms in enough detail to enable an individual to decide if the facility will meet his or her needs. Laufer discovered that Acheson Hotels in Maine did not provide enough information and filed suit.

Acheson argues that Laufer does not have standing to sue because she had no intention of staying at their hotels. Circuit Courts have split on the issue.

  • More information: NAACP and ACLU amicus brief in support of Laufer

OCT 10: Great Lakes Insurance v. Raiders Retreat Realty Co.

Ballotpedia: In 2019, a yacht owned by Raiders Realty Co., based in Pennsylvania, ran aground and acquired at least $300,000 in damages. The yacht was insured by Great Lakes Insurance SE, which denied coverage due to the fact that the yacht’s fire extinguishing equipment had not been inspected or recertified on time.

Great Lakes filed for the U.S. District Court for the Eastern District of Pennsylvania to issue a declaratory judgment that the insurance policy was invalid. Raiders Realty Co. filed five counterclaims based on Pennsylvania law…The district court dismissed the counterclaims and rejected Raiders Realty Co.’s argument, concluding that based on the insurance policy’s choice of law provision, New York Law should be applied… Raiders Realty Co. appealed to the U.S. Court of Appeals for the Third Circuit which reversed the district court’s decision. The court of appeals held that the district court had not considered whether there is strong Pennsylvania public policy that would intercept applying New York Law.

OCT 10: Murray v. UBS Securities

Trevor Murray worked as a research strategist for USB Securities, a commercial mortgage-backed securities (CMBS) company. His job was to report on CMBS markets to UBS’s current and potential customers while complying with the SEC requirement that he “certify that his research was independently produced and accurately reflected his own views, rather than those of the company’s trading desk.” However, two UBS trading desk leaders pressured him to misrepresent his findings and publish reports favorable to UBS business strategies. Murray was fired roughly a month after informing his supervisor of the pressure to skew his reports.

Murray sued UBS for violating the Sarbanes-Oxley Act’s prohibition on retaliating against whistleblowers who report publicly traded companies’ misconduct. The question the Supreme Court is asked to resolve is whether the burden of proof lies on the whistleblower to show that their employer acted with retaliatory intent or the burden of proof is on the employer to show a lack of retaliatory intent.

OCT 11: Alexander v. South Carolina NAACP

This case, Alexander v. South Carolina State Conference of the NAACP, is about whether and to what extent lawmakers are allowed to take race into consideration during redistricting.

As the name suggests, the case involves the redistricting maps created by South Carolina’s Republican-controlled legislature in 2022. According to the ACLU and the NAACP, the legislature intentionally singled out minority communities, cracking predominantly Black cities and neighborhoods across multiple districts to reduce their electoral influence. A panel of federal judges agreed, finding that GOP leaders drew the 1st Congressional District used race to achieve the partisan goal of making it safer for Republicans:

Analyses of partisan voting patterns within Congressional District No. 1 provided by both Plaintiffs and Defendants indicated that a district in the range of 17% African American produced a Republican tilt, a district in the range of 20% produced a “toss up district,” and a plan in the 21-24% range produced a Democratic tilt. The Court finds that this data demonstrating the need to limit the African American population to a certain level to produce the desired partisan tilt resulted in a target of 17% African American population for Congressional District No. 1…

Senator Campsen’s announced intention to include Berkeley and Beaufort Counties whole in Congressional District No. 1, as well as portions of Dorchester County, presented a challenging problem for [cartographer Will] Roberts as he attempted to complete the Charleston County portion of the district to produce a congressional district with a Republican tilt…Under the Court’s close questioning, Roberts admitted he abandoned his “least change” approach and the Clyburn staff model he had relied on in all other counties and made “dramatic changes” that “created tremendous disparity” within Charleston County. (Tr. Vol. VI, Will Roberts at 1556-1559:8). Roberts ultimately moved 62% (30,243 out of the 48,706) of the African American residents formerly assigned to Congressional District No. 1 to District No. 6, leaving only 18,463 African Americans in the Charleston portion of Congressional District No. 1…When asked what community of interest the residents of North Charleston would have with the residents of Congressional District No. 6 in Columbia, Roberts could only think of their common proximity to Interstate I-26, albeit over 100 miles apart…

As a result of this effective bleaching of African American voters out of the Charleston County portion of Congressional District No. 1, Roberts was able to produce an African American percentage in Congressional District No. 1 of 17.8%.

As you may remember, the U.S. Supreme Court ruled in Rucho v. Common Cause (2019) that federal courts may not hear claims of partisan gerrymandering. Alexander v. South Carolina NAACP provides the conservative majority with the opportunity to exempt racial gerrymandering from federal review, as well.

OCT 30: Culley v. Marshall

Culley v. Marshall is about what happens after a person challenges the law enforcement seizure of property.

Alabama police officers seized the vehicles of two women, Halima Culley and Lena Sutton, in separate incidents in 2019. In both cases, someone had borrowed their cars and, unknown to the owners, drove with drugs in the vehicle. Under Alabama’s Civil Asset Forfeiture statute, law enforcement took possession of the cars even though they never charged the owners with a crime.

Culley and Sutton tried to get their cars back, but police refused and made them each go through more than a year of civil asset forfeiture proceedings in state court:

Neither was involved in or knew anything about the illegal activity, as judges would later conclude. Yet the police—who stood to keep the cars upon forfeiture, or any money they might generate—wouldn’t hear it and refused Petitioners’ repeated pleas to return their cars. The consequences were devastating. For Sutton, fourteen months without a car meant she couldn’t find work, couldn’t keep up with her bills, and couldn’t keep her mental-health appointments—all because there was no opportunity for a neutral magistrate to ask Respondents what they were doing.

Culley and Sutton filed separate class action lawsuits in federal court, claiming that Alabama had deprived them of due process by retaining their cars for over a year without providing a retention hearing. The district court and 11th Circuit Court of Appeals sided with the state.

The 11th Circuit reached its decision by applying the framework analysis developed in Barker v. Wingo, which is normally used to implement the Sixth Amendment’s Speedy Trial Clause. Instead, Culley and Sutton argue, the court should have followed the framework laid out in Mathews v. Eldridge—as is customary in all other appellate courts in the nation.

The court of appeals erroneously believed that this Court’s decisions in $8,850, 461 U.S. 555, and Von Neumann, 474 U.S. 242, required it to apply Barker rather than Mathews. Pet. App. 7a-8a. But Barker is inapposite. It addresses whether the government, through its delay, has violated a criminal defendant’s Sixth Amendment right to a speedy trial. The issue here, in contrast, is whether the Constitution requires additional process to protect a claimant’s right to possess and use her property during civil forfeiture proceedings. These questions, as then-Judge Sotomayor explained, “are not parallel.” Krimstock, 306 F.3d at 53. The court of appeals erred in applying Barker over Mathews.

Culley and Sutton are asking the Supreme Court to decide which framework courts should use in civil asset seizure cases—should the majority side with the 11th Circuit, Americans across the nation will lose what little due process rights they have when police take their property.

OCT 31: O’Connor-Ratcliff v. Garnier and Lindke v. Freed

This pair of cases is about whether it is a violation of the First Amendment for a government official to block a constituent on social media.

James Freed, the city manager for Port Huron, Michigan, blocked Kevin Lindke from his Facebook profile after facing criticism for his handling of the Covid-19 pandemic. Michelle O’Connor-Ratcliff and T.J. Zane, members of the Poway Unified School District Board of Trustees in California, blocked Christopher and Kimberly Garnier from their social media pages for “post[ing] repetitious and non-responsive comments” on their pages. Freed, O’Connor-Ratcliff, and Zane all used their social media pages for a mixture of personal and official communications, yet the 6th Circuit ruled for Freed and the 9th Circuit ruled against O’Connor-Ratcliff and Zane.

The U.S. Supreme Court is asked to resolve this conflict and determine when a public official’s social media activity is state action subject to the First Amendment.

  • You may remember this issue was previously brought to the Court when then-President Trump blocked users from responding to his Twitter threads. By the time it reached the Supreme Court, Trump was no longer president, so the justices dismissed the case.

Leave a Comment

Your email address will not be published. Required fields are marked *