Defending due process in the DC Court of Appeals

On September 21, 2017, a panel of the DC Court of Appeals ruled unanimously in favor of Nigel Barrella’s client, who had been convicted of driving with a revoked license, even though the DC DMV never sent him notice of the revocation. Nigel had argued his client’s case before the court in October 2016.

In this case, the DC government had argued that because operating after revocation is a so-called “strict liability” crime, it did not matter whether the DMV had sent him notice that they were revoking his license, or whether he received that notice. The government maintained that all it had to prove for a conviction was that his license was revoked and that he was driving in DC.

Nigel argued that the regulations required the DMV to send notice, and that due process (i.e. the Fifth Amendment to the Constitution) also requires it. The Court of Appeals agreed that the DMV’s regulations required them to send notice, and the court also held that failure to receive notice could be treated as a defense to operating after suspension or revocation.

In future cases when motorists are charged with this crime, the DMV should be prepared to prove that they provided notice of their action revoking or suspending the license. DMV regulations already required record-keeping of notices sent to motorists.

Anecdotes from many motorists suggest that the DC DMV frequently has not been sending notices in the manner required by regulation. Going forward, the Court’s ruling creates an important incentive for the DMV to carry out its duties in a manner consistent with due process.

Bottom line: if the DC DMV does not send notice to motorists, it should not expect to be able to prosecute the motorists who are (unknowingly) driving without a valid license. That’s not just common sense anymore — it’s the law.

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Petitioning FDA for flexibility

On March 2, 2017, Nigel Barrella, on behalf of his client the Good Food Institute, submitted a citizen petition to FDA. The petition notes the proliferation of new, innovative foods in the marketplace, and requests that FDA formally acknowledge its policy of allowing new foods to be named in a natural, commonsense way that consumers understand.

The petition particularly addresses the increasing variety of plant-based foods, including dairy alternatives such as soy milk, almond milk, soy yogurt, and so on. Some voices in the dairy industry have asked FDA to adopt anticompetitive policies towards these products — regulating the language that these products use in order to thwart consumer understanding and connote inferiority. The petition describes how this would lead to confusion, and is inconsistent with hundreds of products already on the market. Additionally, the petition notes that this attempt to regulate natural language would likely be unconstitutional under the First Amendment.

The petition is open for public comment online. For more information, contact Nigel.

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Presentation on free speech and labeling

On October 30, 2015, Nigel Barrella presented at the Food and Drug Law Institute’s “Constitutional Challenges” Symposium. His article, Constitutional Limits on Compulsory Labeling, is to be published in the Food and Drug Law Journal later this year.

The article is a comprehensive review of how courts have handled First Amendment challenges to mandatory labeling laws (particularly in the food and drug context). Increasingly, businesses have been using the First Amendment to object to labeling requirements, but courts (while taking the issue seriously) have rarely invalidated compulsory labeling requirements involving factual information. In the article, Nigel describes which challenges to labeling laws are most viable, and which are not.

A draft version of the article is available here. If you would like a copy of the final, published version, contact Nigel.

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DCCA: D.C. gun law unconstitutional

Can it be a crime to simply ride in a car in which you know there is an illegal gun? In a 2-1 opinion by Judge Glickman today, the D.C. Court of Appeals says no.

The law in question is a 2009 D.C. law, D.C. code § 22-2511, which criminalizes the knowing presence in a motor vehicle containing a firearm. (“PMVCF” for short.) The law was supposed to make it easier to convict the occupants of a car where a gun is found, when the government can’t prove who actually owned it or had control over it.

The court found two constitutional problems with the law: first, it shifted the burden away from the government and onto the defendant regarding whether the defendant’s presence in the car was voluntary or involuntary. But the court wrote this constitutional flaw would not require striking down the statute entirely, but rather modifying the law to put the burden on the government.

More troubling to the court was that this was a “crime of omission.” In other words, if you learn that there’s an illegal gun in the car, failing to get out of the car as soon as you can is a crime — and laws that criminalize the failure to do something are very rare. The court compared it to a 1957 Supreme Court case in which Los Angeles required convicted felons to register with the city when they moved there; the Supreme Court found that law unconstitutional, because it was an unexpected and unusual crime of omission.

Although ignorance of the law is no excuse, you simply wouldn’t expect to be punished just for being around someone who’s breaking the law. The court pointed to one way in which the law is illogical — you can hang around with someone all day and go anywhere with them while they’re carrying an illegal gun, but don’t you dare get into a car with them. This is not what an ordinary person would expect.

Judge Thompson concurred in the judgment only, finding that the jury was improperly instructed and that the defendant should get a new trial. She dissented, however, from the court’s decision to hold the statute unconstitutional. She argued the 1957 Lambert case was an anomaly, and has almost never been used to strike down other statutes.

The defendant’s conviction was reversed, and the statute prohibiting presence in a motor vehicle containing a firearm was struck down. For now, PMVCF is no longer a crime in the District. But given the hard line DC takes on gun charges, it’s probably still not a good idea.

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Fourth Circuit: NC town can’t deny forum for takings claim

In an opinion published last week by the U.S. Court of Appeals for the Fourth Circuit, Judge Shedd writes that a town being sued for a Fifth Amendment taking can’t avoid the suit by playing jurisdictional games.

In this case, homeowners were suing their town over various regulations and actions dealing with beach erosion; one of their claims was that the town was depriving them of the value of their land without just compensation, a “taking” under the Fifth Amendment. (The town is Nags Head, on the NC outer banks, nestled between the sites of the first heavier-than-air flight and the Lost Colony.)

The homeowners initially sued in state court. The town removed the case to federal court, and then asked to have the takings claim dismissed because it was unripe. Under existing Supreme Court precedent, takings claims must first be raised under state procedures for dealing with those claims before a federal court will deem those claims “ripe” for federal litigation. The federal district court dismissed the claims under this “state-litigation” requirement.

The appeals court, however, saw mischief here. The town itself took the case out of state court and into federal court, only to ask to have it dismissed because it should be in state court instead of federal court. The Supreme Court has ruled that similar manipulative litigation is not allowed when a state invokes Eleventh Amendment immunity. The situation here is analogous, the Fourth Circuit wrote. The town waived its opportunity to have a state forum when it removed the case from that forum.

The Fourth Circuit sends the case back to the district court to deal with the landowners’ Fifth Amendment takings claims.

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