Today in Supreme Court History: February 25, 1841

2/25/1841: Justice Phillip Barbour dies.

Justice Phillip Barbour

Comments

[Dan Schiavetta]

North Carolina State Board of Dental Examiners v. FTC, 574 U.S. 494 (decided February 25, 2015): upholding FTC ruling that North Carolina Board of Dental Examiners committed antitrust violation by prohibiting non-dentists from providing teeth whitening services (State action is immune from antitrust liability, Parker v. Brown, 1943, but Board was not a governmental entity nor was under State supervision)

Yates v. United States, 574 U.S. 528 (decided February 25, 2015): Yates, caught with undersized fish in violation of conservation laws, threw them overboard despite being told by wildlife official to preserve them. Court holds that this did not violate 18 U.S.C. §1519, which criminalizes "altering, destroying, mutilating, concealing, covering up, falsifying, or making a false entry in any record, document, or tangible object" with the intent to impede a federal investigation. (So if in addition to ditching the fish Yates had written down that he had preserved them, he would have been convicted. Lesson: it's fine to actually destroy evidence, and even admit it, as long as they can't tell such from the records.) 5 - 4 decision. Kagan, in dissent, points out that a fish is a tangible object, and cites Dr. Seuss's "One Fish, Two Fish, Red Fish, Blue Fish".

Prince v. United States, 352 U.S. 322 (decided February 25, 1957): expanding federal bank robbery statute by including "entry of bank with intent to rob it" did not increase maximum punishment (20 years for robbery became 20 years for entry + robbery)

Hernandez v. Mesa, 589 U.S. --- (decided February 25, 2020): parents of unarmed 15-year-old Mexican child shot and killed while crossing border into Mexico (agent claimed he wasn't playing jump-over game with friends but trying to cross the border illegally but WTF??) cannot sue; one can sue federal agents for violation of Constitutional rights such as Due Process and unreasonable seizure (Bivens v. Six Unknown Federal Narcotics Agents, 1971) but not for cross-border incidents which are a political question between countries

Fernandez v. California, 571 U.S. 292 (decided February 25, 2014): post-arrest consent to search apartment can be given by robbery suspect's live-in girlfriend (she was apparent victim of domestic assault by suspect and police reasonably wanted to question her outside his intimidating presence)

[Dilan Esper]

I think you are too unkind to the decision in Yates. I don't think the Court has any problem with evidence spoliation statutes, but rather to the government trying to throw someone in prison for violating what is essentially a destruction-of-documents and falsification-of-records statute, when the person neither destroyed documents nor falsified records.

I realize Yates isn't a rule of lenity case, but I think the rule of lenity has a sort of background role in a lot of statutory interpretation cases in the criminal context. If we are talking about throwing people in prison (rather than a civil penalty) for what is essentially a regulatory offense (not malum in se like murder, for instance), it's not a big ask that Congress spell out the actual offense. Especially since DOJ prosecutors have a lot of lobbying power and can get statutory changes through Congress when they think a statute isn't broad enough.

[Dan Schiavetta]

You make some good points, but I still think the decision is wrong. The problem is the use of the word “in”.

The statute reads:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . .” (emphasis added)

Let’s take every listed act, the way the Court would have it, inasmuch as it applies to “tangible objects”.

“alters in any tangible object”
“destroys in any tangible object”
“mutilates in any tangible object”
“conceals in any tangible object”
“covers up in any tangible object”
“falsifies in any tangible object”
“makes a false entry in any tangible object” etc.

Except for the last, the above are not grammatical. The word “in” belongs only with the phrase that immediately precedes it, “makes a false entry”.

Properly read, the possibilities are, as applied to this case:
“destroys any tangible object”
“conceals any tangible object”

. . . which is what Yates admittedly did.

One can point out that the statute is entitled “Destruction, alteration, or falsification of records”, but something can be a record in itself (archeologists use this logic all the time), particularly given the expansive phrase “any tangible object”.

[Dilan Esper]

This is why I think the right way of seeing this is the rule of lenity. An ordinary person would look at this statute and say "OK, that means I can't destroy or alter evidence or falsify documents". If Congress really means "you can't throw a fish back in the water", there's nothing wrong with just telling Congress to enact that statute rather than relying on the broadest construction of "tangible object".

We're talking about prison time here.

[Dan Schiavetta]

It's admittedly a close call. Supporting your view is the fact that there is a spoliation statute, 18 U.S.C. §2232(a), which Yates was convicted of, a conviction he did not appeal.

[John F. Carr]

The two laws are almost close enough that one is a lesser included offense of the other. 18 USC 2232(a) has the element that the government intend to search or seize the item, while 18 USC 1519 has the element that the item not be a fish. So they are distinct.

[The Margrave of Azilia]

As far as the Bivens stuff - I certainly believe Congress could create a cause of action against federal agents and specify that particular federal courts will have exclusive jurisdiction over such claims.

But what if Congress doesn't pass such a statute? Who fills the resulting gap?

I'd argue that the states would fill the gap with their own causes of action. If this poses too much of a threat to federal predominance, Congress can pass a statute like the one I suggested.

A right without a remedy isn't really a right at all.

[Dan Schiavetta]

Bivens held that one could sue federal agents even though no statute specifically provided for it. That’s still the law.

At issue in Hernandez was whether this included federal agents in cross-border incidents. Interestingly, though it looked like young Sergio was bouncing back and forth with his friends, the agent waited until he was on the Mexican side before shooting.

[The Margrave of Azilia]

Right, but instead of the Bivens approach the Court could simply say there’s no federal law on the subject, so state law applies until Congress specifically fills the gap. Which Congress probably would do, rather than see federal agents accountable to state law.

It's my understanding that plenty of misconduct isn't covered by Bivins and they won't let the state courts do anything either. A law-free zone.

[John F. Carr]

If some day the government wants to buy favor from Mexico, could the agent be extradited to stand trial there?