Policing Facts

The United States Supreme Court’s understanding of police practices plays a significant role in the development of the constitutional rules that regulate officer conduct.  As it approaches the questions of whether to engage in constitutional regulation and what form of regulation to adopt, the Court discusses the environment in which officers act, describes specific police practices, and explains what motivates officers.  Yet the majority of the Court’s factual assertions are made entirely without support or citation, raising concerns about whether the Court is acting based on a complete and accurate perception.  When it comes to policing facts, the Court too often gets it wrong. This Article explores the influence that the Court’s conception of policing has on the creation and modification of constitutional norms.  It demonstrates that misunderstandings about law enforcement have led to constitutional rules that fail to align with the world that they were designed to regulate.  Confusion about the facts upon which a rule is built creates a gap between the conceptual justification of the rule and its practical consequences, between the effect that the rule was intended to have and the effect it actually has.  Thus, misalignment results in the under- or overregulation of officer behavior and, correspondingly, the under- and overprotection of liberty and privacy interests.  This observation offers one explanation for why the Court’s constitutional pronouncements often fail to have the anticipated result.  Having identified the effects that follow from basing a rule on a faulty factual premise, I explore ways to narrow the gap.  When constitutional rules are predicated on empirical information, a more accurate understanding of police practices will better align those rules with reality, leading to both more precise constitutional rule making and more efficacious liberty protections.

United States v. Scruggs: The Fifth Circuit Creates a New Method To Determine What Constitutes a “More Serious” Charge

Richard “Dickie” Scruggs first found notable success as a plaintiffs’ attorney in asbestos litigation.  Not long after, Scruggs found massive success as one of the key plaintiffs’ attorneys in tobacco litigation.  Scruggs became a subject of national media attention, even finding himself as a character in the Academy Award-nominated motion picture The Insider, Hollywood’s take on the epic legal fight against the tobacco industry.  However, behind the scenes, Scruggs continuously found himself embroiled in fee-sharing disputes with cocounsel.  In particular, Roberts Wilson, Scruggs’s cocounsel in asbestos litigation, filed suit against Scruggs for unpaid fees.  Mississippi Circuit Court Judge Robert “Bobby” DeLaughter was assigned to the case.  Scruggs, having recently lost a similar fee-sharing suit, decided to put into motion a scheme to avoid the same fate twice.  Scruggs hired Ed Peters, a close friend of DeLaughter, as a covert go-between to deliver an offer from Scruggs to DeLaughter:  if DeLaughter tipped the scales in Scruggs’s favor, Scruggs would speak with his brother-in-law, Trent Lott, a United States Senator, and recommend DeLaughter for a federal district court judgeship.  DeLaughter, who openly coveted a federal judgeship, began to work on his end of the corrupt bargain to favor Scruggs. After the case with Wilson settled, the Scruggs-DeLaughter scheme was exposed by members of Scruggs’s legal team who were cooperating with the government’s investigation of a separate judicial bribery scheme.  Scruggs was indicted on three counts of aiding and abetting honest-services mail fraud.  Scruggs pled guilty to a superseding bill of information that charged him with one count of aiding and abetting honest-services mail fraud.  In response to Scruggs stating his plea of guilty to the United States District Court for the Northern District of Mississippi, Judge Glen H. Davidson, sitting in the same seat that DeLaughter so ardently craved, stated on the record, “The Romans had a proverb which said that money was like seawater.  The more you drink, the thirstier you become.  In looking back at your situation, I think that’s certainly applicable, and it’s sad.”  In June 2010, the United States Supreme Court handed down Skilling v. United States.  Addressing the constitutionality of 18 U.S.C. § 1346, the Court clipped the wings of the honest-services statute, limiting its applicability to kickback schemes and bribery only.  In response to the Skilling decision, Scruggs filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, arguing that he did not admit to bribing Judge DeLaughter and thus could not be guilty of violating § 1346 as it is now defined under Skilling.  The district court found that by pleading guilty, Scruggs had procedurally defaulted on the claim.  The court denied Scruggs’s § 2255 motion after finding that Scruggs could not show actual innocence or cause and prejudice.  Scruggs appealed, challenging the court’s subject matter jurisdiction in light of Skilling, in addition to arguing that he did not procedurally default on his claim.  The United States Court of Appeals for the Fifth Circuit held that the district court had subject matter jurisdiction and that Scruggs was required, and failed, to show actual innocence of all three forgone honest-services counts in the original indictment.  United States v. Scruggs, 714 F.3d 258 (5th Cir.), cert. denied, 134 S. Ct. 336 (2013).

A Compelling Case for Streamlining Venue of Actions To Enjoin Arbitration

As arbitration, rather than litigation in court, grows as a favored forum for dispute resolution, the role of federal courts in guiding parties toward arbitration has increased in importance. Federal courts are regularly asked to intervene to compel arbitration or to enjoin arbitration from proceeding. A circuit split has developed regarding whether federal courts have the power to compel arbitrations in districts outside their own, stemming from § 4 of the Federal Arbitration Act’s conflicting permissive versus mandatory venue provisions. There are likewise conflicting opinions regarding whether a federal court can enjoin an arbitration pending in another district. This Article explores the disparate decisions on these issues, arguing that venue for an action to enjoin arbitration should be limited to the district where arbitration is pending in order to promote judicial efficiency, to prevent forum shopping, to avoid inconsistent rulings, and to funnel parties quickly to arbitration.

Maintain a Seaman’s Protection or Cure a Seaman’s Fraud? Weighing the Proper Balance Between Seamen and Employers

Wallace Boudreaux had been working less than five months when he first filed for maintenance and cure from his employer, Transocean Deepwater, Inc. After working on the anchor of a Transocean vessel in May 2005, he claimed that he had injured his back due to the company’s negligence. Transocean thereafter began making maintenance and cure payments to Boudreaux. These awards did not satisfy the seaman, though, and almost three years later, in April 2008, he sued for further damages. The suit led Transocean to a revelation during discovery: in his initial medical interview with the company, Boudreaux never acknowledged that he had had back injuries and pain as early as 1997. Based on this concealment, Transocean filed a motion for summary judgment, leading the district court to dismiss Boudreaux’s maintenance and cure claims in April 2010. By that point, though, Transocean had already paid him $276,263.36 over nearly five years. Wishing to recover the money, the company filed a counterclaim for restitution in June 2010. It then filed a motion for summary judgment on the counterclaim, arguing that because it successfully showed that it was not responsible for further maintenance and cure payments, the court should also grant it restitution for those payments already made in order to avoid unjust enrichment. The district court agreed with this argument and granted Transocean’s motion for summary judgment on the counterclaim for restitution. Boudreaux appealed, leading the United States Court of Appeals for the Fifth Circuit to consider the novel issue of whether a maritime employer should automatically be granted restitution for prior maintenance and cure payments where the employer successfully defends against further payments by showing that an employee intentionally concealed a relevant, preexisting medical condition. The United States Court of Appeals for the Fifth Circuit held that an employer is not entitled to an automatic right of action for restitution of maintenance and cure payments obtained by a seaman after an inaccurate medical interview, although the employer can use these prior payments to offset further Jones Act damages. Boudreaux v. Transocean Deepwater, Inc., 721 F.3d 723, 728, 2013 AMC 2457, 2464 (5th Cir. 2013).

In State v. Louisiana Land & Exploration Co., the Louisiana Supreme Court Retreats from Progress in Oil Field Contamination Litigation

In the ongoing saga of Louisiana “legacy litigation,” the Louisiana legislature and Louisiana Supreme Court have together taken several cautious steps along an uneasy tightrope strung between the competing interests of private landowners and oil and gas exploration and production companies accused of environmental contamination. The most recent opportunity for advancing the resolution of oil field contamination disputes arose in the matter of State v. Louisiana Land & Exploration Co., in which the state of Louisiana and the Vermilion Parish School Board haled into court a dozen exploration and production companies to answer for alleged contamination resulting from oil and gas operations performed on lands owned by the state and managed by the school board. Though it was undisputed that the original 1935 oil, gas, and mineral lease lacked any express provision for environmental remediation, the plaintiffs nevertheless alleged, inter alia, that they were entitled to “excess remediation damages” in spite of the procedural mechanisms for administering remediation awards put in place by Act 312. The defendant companies—admitting responsibility for the contamination, but objecting to the plaintiffs’ contention that they were liable for damages above and beyond the amount required for a statutory cleanup—moved for partial summary judgment. They sought dismissal of the plaintiffs’ claims for excess remediation damages in light of the procedural requirements established under Louisiana Revised Statute (La. R.S.) section 30:29, which, they argued, acted as a substantive cap on remediation damages. The trial court granted the defendants’ motion for partial summary judgment, and the state and school board appealed. The Louisiana Court of Appeal for the Third Circuit agreed with the plaintiffs, reversing the trial court’s granting of partial summary judgment and holding, “La. R.S. 30:29, by its clear language, provides for a landowner to recover damages in excess of those determined in the feasible plan whether they are based on tort or contract law.” The defendant companies sought review of the appellate court’s determination, and the Louisiana Supreme Court held that Act 312 does not prohibit plaintiffs from pleading for and receiving awards for remediation damages in excess of the amount needed to fund the statutorily required cleanup plan. State v. Louisiana Land & Exploration Co., 2012-0884, p. 16 (La. 1/30/13); 110 So. 3d 1038, 1049.

Cell Phones as an Eye of the Government: In re Application of the United States for Historical Cell Site Data

Federal authorities in Texas sought a court order from a federal magistrate to compel a cell phone service provider to disclose records for a particular cell phone number under the Stored Communications Act (SCA). These records included historical cell site data, which service providers collect and store for each of their cell phone subscribers. Historical cell site data provide the locations of antennae towers that receive the signal of a subscriber cell phone and the direction from which that signal emanates. Service providers may record and collect these data at times when the phone is in use and when the phone is idle. Federal authorities sought this order under the SCA on a showing of “specific and articulable facts,” rather than by a warrant on a showing of probable cause. The magistrate refused to grant the order as pertaining to the historical cell site data. The magistrate found that although federal authorities did meet the specific and articulable facts standard of the SCA, this provision allows the government to effect a search under the Fourth Amendment on a lower evidentiary showing than probable cause and is, therefore, unconstitutional. When the government objected to the magistrate’s ruling, the district court affirmed the magistrate’s decision. The government appealed the district court’s decision while the American Civil Liberties Union, the Electronic Frontier Foundation, and others participated as amici. In a split decision, the United States Court of Appeals for the Fifth Circuit held that court orders to compel service providers to provide historical cell site data based on the specific and articulable facts standard under the SCA do not categorically violate the Fourth Amendment and that courts do not have discretion to require a showing of probable cause when the government seeks to compel disclosure of historical cell site data under the SCA. In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013).