Ames Semi-Final Round – March 21, 2017

Welcome to CR-CL’s Ames Live Blog!

“The Ames Competition is one of the most prestigious competitions for appellate brief writing and advocacy in the country. The students participating in the Semi-Final Round started the competition in fall of this year, and rose to the final four spots through their strong research abilities and excellent written and oral advocacy.” More information here.

Please tune in starting at 6:15 pm EST!


The Liveblog:

Mitha Nandagopalan March 21, 20177:59 pm

Congrats to both teams, and tune in tomorrow night for CR-CL’s live blog of Willa D. Lowe v. Ames Meat, Inc.

Mitha Nandagopalan March 21, 20177:58 pm

…Which kind of calls into question how seriously law students take moot court, if you think about it

Mitha Nandagopalan March 21, 20177:58 pm

J. Raggi admits to being on a semifinal team that didn’t advance – and reassures the Marshall team that life after Ames does go on and may include a federal bench position… or a Pulitzer Prize!

Mitha Nandagopalan March 21, 20177:56 pm

J. Raggi on the brief: This problem had difficulties for both sides. Judging the briefs was an evaluation of what you did with your strengths and how you exploited the other side’s weaknesses.

Mitha Nandagopalan March 21, 20177:55 pm

J. Raggi compliments the oralists on their conversational style, respect for the court, and knowledge of the record and cases.

Mitha Nandagopalan March 21, 20177:55 pm

J. Prost: If you have to read a paragraph twice to figure out what it means or why it’s there, the advocate is going to lose – but your briefs were very clear, and the oral argument was high-level.

Mitha Nandagopalan March 21, 20177:54 pm

J. Prost notes that she regularly hears the best oral advocates, including Solicitors General, but tonight’s briefs and oralists measured up.

Mitha Nandagopalan March 21, 20177:53 pm

J. Chutkan: I’m glad I’m a district court judge, because this is hard! But judging appellate oral advocacy was fun.

Mitha Nandagopalan March 21, 20177:52 pm

And some feedback from the judges.

Mitha Nandagopalan March 21, 20177:52 pm

Best Overall Team: Fred T. Korematsu Team

Mitha Nandagopalan March 21, 20177:52 pm

Best Brief: If we could tie, we would, but the Thurgood Marshall Memorial Team takes the prize.

Mitha Nandagopalan March 21, 20177:51 pm

Best Oralist: Lydia Lichlyter

Mitha Nandagopalan March 21, 20177:51 pm

J. Raggi compliments both teams and acknowledges that all decisions were close.

Mitha Nandagopalan March 21, 20177:50 pm

I don’t know about y’all but we got some drumrollers here in overflow.

Mitha Nandagopalan March 21, 20177:50 pm

“Drumroll please…”

Mitha Nandagopalan March 21, 20177:50 pm

And we’re back. That was a sudden silence!

Mitha Nandagopalan March 21, 20177:37 pm

Jacob Steiner throwing the camera a glance for the benefit of the overflow room

Mitha Nandagopalan March 21, 20177:36 pm

And that’s it for rebuttal, brief recess while the judges deliberate.

Mitha Nandagopalan March 21, 20177:36 pm

J. Raggi packing in a lot of snark late in the game

Mitha Nandagopalan March 21, 20177:35 pm

And a jab about attorneys’ fees

Mitha Nandagopalan March 21, 20177:35 pm

And J. Raggi grants permission for Lichlyter to answer over time.

Madelyn Peterson March 21, 20177:35 pm

J. Raggi: it seems very curious that the document that initiated the charge is the not use of his statement that violates the fifth amendment?

Mitha Nandagopalan March 21, 20177:35 pm

J. Raggi jumps in with a question as we’re running up on time! Must be nice being on the bench.

Mitha Nandagopalan March 21, 20177:34 pm

Lichlyter: As to 5th Amendment, defendants have proposed a piecemeal definition of “criminal case.” Pretrial proceedings must be included in this court’s definition.

Mitha Nandagopalan March 21, 20177:33 pm

Lichlyter: Ferris’ suit may throw some doubt on his conviction, but doesn’t necessarily implicate its validity. Ferris admits the marijuana possession and doesn’t challenge his plea.

Mitha Nandagopalan March 21, 20177:33 pm

Lichlyter: As to favorable termination, the statement being a “but-for” cause of the conviction doesn’t invalidate the conviction. A voluntary guilty plea is not incompatible with a prior constitutional violation, including a 5th Amendment violation.

Mitha Nandagopalan March 21, 20177:32 pm

Lydia Lichlyter on the rebuttal

Mitha Nandagopalan March 21, 20177:31 pm

Johnson wraps up with the precedent, the policy considerations, and the founders’ intent. She’s the only one so far who managed to get in a full summation.

Mitha Nandagopalan March 21, 20177:30 pm

Johnson: For the purpose of this narrow appeal, we focus on the meaning of “criminal case”; the footnote was just to notify the court that “compelled” is also not a settled question.

Mitha Nandagopalan March 21, 20177:29 pm

Johnson: Some circuits assume the individual knows they have a right against self-incrimination violation, so silence on the employer’s part is fine.

J. Chutkan: But do you concede that his statement was compelled in the 5th Amendment sense in this case?

Johnson: We concede that it was compelled in that he didn’t want to answer.

Mitha Nandagopalan March 21, 20177:28 pm

Johnson: To distinguish between “compelled statement” in the lay sense and in the 5th Amendment context, look to Garcetti, which asks what affirmative duty an employer has to inform employees of 5th Amendment before eliciting information? There’s a circuit split.

Madelyn Peterson March 21, 20177:28 pm

J. Raggi asks about what the appellee means by their first footnote.

Mitha Nandagopalan March 21, 20177:26 pm

Johnson: Yes, QI is part of the equation, but the first step of the Harlow QI analysis is whether a constitutional right was violated. So finding a constitutional violation here would have implications for QI. Here, it may be true that the right isn’t clearly established, but it would be clearly established by this decision for the next case. So we ask that this court not include the entire range of investigatory proceedings in “criminal case”

Madelyn Peterson March 21, 20177:25 pm

J. Raggi: is qualified immunity a part of the equation?

Mitha Nandagopalan March 21, 20177:25 pm

Johnson: Court shouldn’t be concerned about that here. First, this case doesn’t involve custodial interests or a trial. Appellant concedes that the charging decision wasn’t a violation of 5th Amendment rights. Second, policy considerations weigh in our favor – government officers need to be able to do their jobs.

Mitha Nandagopalan March 21, 20177:24 pm

J. Chutkan: What about the danger that a city government could make it a condition of employment that all employees answer a marijuana question, and then use that to get search warrants to search all of their homes? Wouldn’t this deprive plaintiffs then saddled with criminal convictions of a civil rights remedy?

Mitha Nandagopalan March 21, 20177:23 pm

Johnson: Actually, the founders thought the 5th Amendment should be even narrower than the liberty interest – specifically it should be a trial right, in a trial setting.

Mitha Nandagopalan March 21, 20177:23 pm

J. Raggi: Why focus on whether there was a risk that he would be incarcerated?

Madelyn Peterson March 21, 20177:22 pm

J. Raggi: what is the difference between an arrest warrant and the summons in the present case?

Mitha Nandagopalan March 21, 20177:22 pm

Johnson: This court could choose to include the arrest warrant in its line for when a criminal case begins. The difference between an arrest warrant and a summons is that a summons doesn’t implicate a custodial interest or threaten immediate loss of liberty.

Madelyn Peterson March 21, 20177:21 pm

J. Raggi: why does an arrest warrant not begin a criminal case? That is when his name is put on the other side of the v.

Mitha Nandagopalan March 21, 20177:20 pm

Johnson: First, J. Chutkan pointed out that this would allow the turning on and off of the right based on when the judge allowed certain actions. That leaves too much power in the hands of the government in deciding when to charge.

Madelyn Peterson March 21, 20177:20 pm

J. Raggi: we are not interested in counting up cases, but in the rational.

Madelyn Peterson March 21, 20177:19 pm

J. Raggi: what about the arrest warrant?

Mitha Nandagopalan March 21, 20177:19 pm

Johnson admits “criminal case” is broader than “trial”

Mitha Nandagopalan March 21, 20177:19 pm

J. Prost: But what precludes us from carving out another proceeding, since SCOTUS left some leeway?
Johnson: “Criminal case” was inserted after the drafting of the BIll of Rights specifically to narrow its application to a limited set of practices – i.e. browbeating defendants before trial and using those statements at trial.

Mitha Nandagopalan March 21, 20177:18 pm

J. Chutkan: But would a full-fledged in-person hearing be “trial-adjacent”?
Johnson: That’s a minority view among circuits. Most circuits that have ruled limit the 5th Amendment to trial proceedings. The court could choose to follow the minority who extended the 5th Amendment to custodial hearings but still rule for Appellee here.

Mitha Nandagopalan March 21, 20177:17 pm

Johnson: It’s not trial-exclusive. But the preliminary hearing at issue here shouldn’t qualify for 5th Amendment protection.

Mitha Nandagopalan March 21, 20177:16 pm

Johnson: Court should construe “criminal court” narrowly because SCOTUS and other appeals courts have done so

Mitha Nandagopalan March 21, 20177:16 pm

Ooh, Prost getting snarky: Since that’s not a term courts use, could you be a bit more helpful explaining it?

Mitha Nandagopalan March 21, 20177:15 pm

J. Prost: Is “trial-adjacent” something you just made up?

Mitha Nandagopalan March 21, 20177:15 pm

Johnson: No cognizable violation here because 5th Amendment right only applies in context of “a criminal case”

Mitha Nandagopalan March 21, 20177:14 pm

Melinda Johnson on the 5th Amendment for Appelle

Mitha Nandagopalan March 21, 20177:14 pm

Thoma sneaks in that the Muhammed footnote was dicta, and closes out.

Mitha Nandagopalan March 21, 20177:14 pm

Thoma: Even if it’s not a settled issue under Heck, until the Supreme Court says otherwise, the Heck bar applies regardless of habeas eligibility, because Heck says it applies to habeas-ineligible plaintiffs.

Madelyn Peterson March 21, 20177:13 pm

J. Raggi: you are ignoring the language in Mohammad that expresses that members of the Supreme Court were in disagreement on this issue.

Mitha Nandagopalan March 21, 20177:12 pm

Thoma: Acknowledging a circuit split isn’t creating an open question of whether Heck is binding. Ruling for appellant here would essentially be a circuit court attempting to overrule Heck.

Mitha Nandagopalan March 21, 20177:12 pm

J. Prost: But if Heck applied in Muhammed, wouldn’t the Court have just said so? Why acknowledge the circuit split.

Mitha Nandagopalan March 21, 20177:11 pm

Thoma: Muhammed footnote doesn’t name an open question, just a circuit split. And that wasn’t the case to decide that circuit split.

Madelyn Peterson March 21, 20177:11 pm

J. Raggi: the Supreme Court has acknowledged that this is still an open question.

Mitha Nandagopalan March 21, 20177:11 pm

Thoma: Heck is straightforward – a §1983 claimant whose claim would implicate the validity of the conviction if successful is barred without favorable termination

Mitha Nandagopalan March 21, 20177:10 pm

J. Prost: Turn to the habeas-ineligible argument.

Mitha Nandagopalan March 21, 20177:09 pm

Thoma: Ferris doesn’t make a substantive claim about the constitutionality of either the marijuana ban or the procedural window of appeal available to him.

Madelyn Peterson March 21, 20177:08 pm

Thoma: no, this is not the type of case that §1983 was designed for.

Mitha Nandagopalan March 21, 20177:08 pm

J. Chutkan: But wasn’t 1983 enacted because state courts historically were hostile to civil rights plaintiffs?

Mitha Nandagopalan March 21, 20177:08 pm

Emphasis on federalism and forum from Thoma

Madelyn Peterson March 21, 20177:07 pm

J. Chutkan: what if he had forfeited his right to appeal in his plea bargain?

Mitha Nandagopalan March 21, 20177:06 pm

Thoma: Ferris did appeal eventually. He was indiligent, so shouldn’t get a relaxation of the Heck bar.

Mitha Nandagopalan March 21, 20177:06 pm

Thoma: Ferris’ complaint states that he chose not to appeal his conviction because he would rather spend $400 to pay the fine than hire an attorney because it would be less costly, not that he couldn’t afford an attorney altogether.

Madelyn Peterson March 21, 20177:06 pm

J. Raggi: but isn’t that implied in his complaint?

Madelyn Peterson March 21, 20177:05 pm

Thoma: Mr. Ferris does not claim that he did not have a true chance to appeal his conviction.

Mitha Nandagopalan March 21, 20177:05 pm

Thoma: Ferris doesn’t claim he didn’t have a true chance to appeal.

Mitha Nandagopalan March 21, 20177:05 pm

J. Chutkan: Forcing plaintiffs to appeal before filing a civil rights claim would be a huge bar.

Mitha Nandagopalan March 21, 20177:05 pm

Thoma: Even if this court did relax the Heck bar for habeas-ineligible plaintiffs, it shouldn’t do so here because Ferris failed to diligently pursue favorable termination.

Mitha Nandagopalan March 21, 20177:04 pm

J. Raggi: But can’t different uses of evidence count as 2 different things, and be a basis of separate claims?
Thoma: That would be logically inconsistent, since here the statement was a but-for cause of the summons, search warrant, and conviction.

Mitha Nandagopalan March 21, 20177:03 pm

J. Prost: There could be a case with 2 pieces, one which necessarily led to the conviction, and the other of which is eligible for 1983 claims. Is your argument that this case only rests on 1 piece of evidence?
Thoma: Yes.

Mitha Nandagopalan March 21, 20177:03 pm

Thoma turns to the voice identification process

Mitha Nandagopalan March 21, 20177:02 pm

Necessarily implicates,” from the bench.

Mitha Nandagopalan March 21, 20177:02 pm

Thoma: If there’s no search warrant or charges filed before he’s offered the plea deal, there may not be a Heck concern. We agree that there are likely no damages here, but Heck does apply because it requires an implication of the validity of the conviction.

Madelyn Peterson March 21, 20177:02 pm

J. Raggi: is the problem not that there is a Heck violation but that there are little to no damages?

Mitha Nandagopalan March 21, 20177:00 pm

Thoma: But it would be inconsistent to let Ferris say that his conviction is valid and also that it was based on an unconstitutional self-incrimination

Mitha Nandagopalan March 21, 20177:00 pm

J. Chutkan: But he stands by the guilty plea. He’s asking for damages on the incriminating statement on pain of losing his job.

Madelyn Peterson March 21, 20176:59 pm

J. Raggi: how does allowing Mr. Ferris to maintain this claim call into question his conviction?

Mitha Nandagopalan March 21, 20176:59 pm

J. Raggi: Why does the fact that he was subject to a search warrant infected by 5th Amendment problems in any way affect the validity of his conviction?

Thoma: Search warrant and summons are but-for causes of guilty plea

Mitha Nandagopalan March 21, 20176:58 pm

Thoma: Favorable termination rule was meant to ensure respect for state courts, finality, federalism, consistency, and let’s throw in the kitchen sink.

Mitha Nandagopalan March 21, 20176:58 pm

J. Chutkan: So why is he forced to seek other remedies?

Mitha Nandagopalan March 21, 20176:57 pm

J. Chutkan: But Ferris isn’t seeking to have his conviction vacated or record expunged. He’s asking for damages on the compelled statement.

Mitha Nandagopalan March 21, 20176:57 pm

Thoma jumps right in on the fact that Ferris could have appealed

Mitha Nandagopalan March 21, 20176:57 pm

Anne Thoma on the favorable termination issue, followed by Melinda Johnson on the 5th Amendment

Mitha Nandagopalan March 21, 20176:56 pm

And now to the appellees

Mitha Nandagopalan March 21, 20176:56 pm

Lichlyter gets her request in on time.

Mitha Nandagopalan March 21, 20176:56 pm

Lichlyter: A pre-charge hearing doesn’t make a defendant a “witness against himself” because there’s no case against him.

Madelyn Peterson March 21, 20176:55 pm

J Prost: is doesn’t matter at all that the warrant wasn’t executed?

Lichlyter: no is doesn’t.

Mitha Nandagopalan March 21, 20176:55 pm

J. Chutkan: But wouldn’t that implicate the 5th Amendment whenever a judge signs a search warrant?

Mitha Nandagopalan March 21, 20176:55 pm

Lichlyter making a text-base argument about the meaning of “case” in the 5th Amendment

Madelyn Peterson March 21, 20176:55 pm

J Raggi – the charge is not a violation?

Lichlyter: no

J Raggi – the guilty plea is also fine?

Lichlyter: yes

J Raggi – but because the statement was used in a search warrant there is a claim?

Lichlyter: yes

Mitha Nandagopalan March 21, 20176:55 pm

J. Raggi honing in on what exactly Appellant’s complaint rests on – the conviction, the charge, the warrant?

Mitha Nandagopalan March 21, 20176:54 pm

Lichlyter: No, this is a violation of the core right of the 5th Amendment. There is no controlling precedent here. It would be new law to declare pretrial proceedings outside the scope of the 5th Amendment

Mitha Nandagopalan March 21, 20176:53 pm

J. Prost: But the issue is how far we can extend the 5th Amendment beyond core trial proceedings

Mitha Nandagopalan March 21, 20176:53 pm

Lichlyter: 3 parts to a “criminal case” – (1) trial, (2) trial-adjacent proceedings, and I didn’t catch the last one

Mitha Nandagopalan March 21, 20176:52 pm

Lichlyter: Vogt is particularly compelling: statements used at a pretrial probable cause hearing, and the court found that the 5th Amendment applied to a probable cause hearing

Mitha Nandagopalan March 21, 20176:51 pm

Honestly that could have been phrased more clearly the first time

Mitha Nandagopalan March 21, 20176:51 pm

J. Prost: What’s the best precedent?

Mitha Nandagopalan March 21, 20176:51 pm

J. Prost: What’s your best case?

Mitha Nandagopalan March 21, 20176:51 pm

J. Prost: What’s your strongest case?

Mitha Nandagopalan March 21, 20176:50 pm

Lichlyter: “Witness against himself” suggests that the speaker is the target of investigation.

Madelyn Peterson March 21, 20176:50 pm

Lichlyter: if formal charges had been filed then yes, there would be a case. If it was prior to charges, no.

Mitha Nandagopalan March 21, 20176:50 pm

J. Chutkan: This case is unusual because the warrant and summons were issued simultaneously. What if the warrant had been issued without the summons? Is there a case?

Mitha Nandagopalan March 21, 20176:49 pm

Longest silence from the bench so far.

Mitha Nandagopalan March 21, 20176:49 pm

J. Chutkan: Does the fact that this was a phone hearing make a difference?
Lichlyter: No. Otherwise any judge could hold all hearings by phone to avoid 5th Amendment issues.

Mitha Nandagopalan March 21, 20176:49 pm

Lichlyter moves on to the purposes of the 5th Amendment, to force the prosecution to prove its own case.

Madelyn Peterson March 21, 20176:48 pm

J. Raggi – are you prepared to stipulate that Mr. Ferris did not lose his job because of the conviction?

Mitha Nandagopalan March 21, 20176:48 pm

Lichlyter: We are willing to stipulate that Ferris didn’t lose his job because of the conviction.

Mitha Nandagopalan March 21, 20176:48 pm

Lichlyter: Injuries from summons flow from compulsion of the incriminating admission, for instance the loss of Ferris’ job.

Madelyn Peterson March 21, 20176:48 pm

J. Raggi – what constitutional injury is there from the summons?

Mitha Nandagopalan March 21, 20176:47 pm

Lichlyter: There is some injury even from a warrant that isn’t executed – the violation itself implicates the 5th Amendment. Extent of injury is better assessed at the damages stage.

Madelyn Peterson March 21, 20176:47 pm

J. Raggi – what injury is there from a warrant that is never executed?

Mitha Nandagopalan March 21, 20176:46 pm

J. Raggi: But what about the fact that the search warrant was never executed?

Mitha Nandagopalan March 21, 20176:46 pm

Lichlyter: That wouldn’t change things. 5th Amendment protection starts when charges are filed.

Mitha Nandagopalan March 21, 20176:46 pm

J. Chutkan: Suppose the same negotiation occurred between Ferris and the prosecutor, but there was no court hearing. Would that be any different?

Mitha Nandagopalan March 21, 20176:45 pm

Lichlyter: “Criminal case” should be “an action, suit, or cause instituted to confront infraction of criminal laws”

Mitha Nandagopalan March 21, 20176:45 pm

Lichlyter: Summons implicates Ferris’ liberty, since it requires him to come to court to answer charges.

Mitha Nandagopalan March 21, 20176:45 pm

Lichlyter: Any court hearing after the filing of formal charges would implicate the 5th Amendent. Here, both the search warrant and the summons implicate the 5th Amendment.

Madelyn Peterson March 21, 20176:44 pm

J Raggi – would you challenge this use if that statement had only been used for a search warrant or if it was only an issue because the charges had been filed.

Mitha Nandagopalan March 21, 20176:44 pm

Lichlyter: Issue is what constitutes a criminal case. For instance, plea colloquies count.

Madelyn Peterson March 21, 20176:44 pm

J. Raggi – asks counsel to discuss the two uses of the statement that are being challenged.

Mitha Nandagopalan March 21, 20176:43 pm

Lichlyter: Distinguishes 5th Amendment privilege against self-incrimination and the right. The right requires (1) self-incriminating statements, and (2) use in a “criminal case.”

Mitha Nandagopalan March 21, 20176:43 pm

Lichlyter cites Castigar, which dealt with the federal immunity statute. You can compel self-incriminating testimony provided the witness is immunized.

Madelyn Peterson March 21, 20176:42 pm

J Raggi – points out that the application in grand jury and pre-trial proceedings.

Mitha Nandagopalan March 21, 20176:41 pm

Lydia Lichlyter up for the 5th Amendment issue

Mitha Nandagopalan March 21, 20176:41 pm

And a belated request that the order of dismissal be reversed.

Madelyn Peterson March 21, 20176:41 pm

J. Raggi thanks counsel for his time and informs him his time is up.

Mitha Nandagopalan March 21, 20176:41 pm

Ding: Here, requiring favorable termination would essentially require Ferris to prevail on state appeal.

Madelyn Peterson March 21, 20176:40 pm

J. Prost – points out that Mr. Ferris did not show how the time precluded him.

Mitha Nandagopalan March 21, 20176:40 pm

Ding: Even if this court believes habeas and appeal are comparable, courts generally apply the Heck rule where prisoners were imprisoned for a far longer time.

Mitha Nandagopalan March 21, 20176:39 pm

J. Prost: Is there a different diligence requirement just because he had a shorter time frame?

Mitha Nandagopalan March 21, 20176:39 pm

Ding: Vast different between a prisoner who was imprisoned for a year and lost habeas, and Ferris, who was imprisoned for 14 days.

Madelyn Peterson March 21, 20176:39 pm

Ding: Heck would not apply because he did exhaust all options.

Mitha Nandagopalan March 21, 20176:39 pm

Ding: Heck only applies to category 2 prisoners where the defendant loses habeas through indiligence.

Mitha Nandagopalan March 21, 20176:38 pm

J. Raggi: How does Heck apply where a defendant was imprisoned for a year, pursued an appeal, and lost. Does Heck apply?

Mitha Nandagopalan March 21, 20176:37 pm

Ding: Spencer and Muhammed show that SCOTUS left this question open under Heck.

Mitha Nandagopalan March 21, 20176:37 pm

Ding: Lower courts rule in our favor for category 3 plaintiffs.

Madelyn Peterson March 21, 20176:37 pm

Ding: we do not rely on the counting of decisions but on the reasoning.

Mitha Nandagopalan March 21, 20176:36 pm

J. Prost refers to Appellants’ brief, Ding responds with a terse, “Exactly, Your Honor.”

Mitha Nandagopalan March 21, 20176:36 pm

Judges really honing on on the exhaustion or no-exhaustion versus state or federal forum.

Madelyn Peterson March 21, 20176:36 pm

J Raggi – If there had been habeas available here how would habeas have hurt him? Why should he be in a better position, why should he not have to show or do what individuals with habeas available have to do?

Mitha Nandagopalan March 21, 20176:34 pm

Ding: Habeas statute explicitly requires exhaustion of state remedies, but 1983 doesn’t.

Mitha Nandagopalan March 21, 20176:34 pm

Ding: Heck rests on the premise that the plaintiff fits the overlap between habeas and 1983.

Madelyn Peterson March 21, 20176:34 pm

J. Raggi – points out that Habeas is one of three ways that you can invalidate a conviction, but Hecks requires that you still invalidate the conviction.

Mitha Nandagopalan March 21, 20176:33 pm

Ding: Appellees suggest state courts would need to be deficient to guarantee 1983 to plaintiffs like Ferris. But that wasn’t Congress’ purpose in enacting 1983.

Mitha Nandagopalan March 21, 20176:32 pm

J. Chutkan: But federal court isn’t Ferris’ only option. He could have appealed in state court.

Mitha Nandagopalan March 21, 20176:32 pm

Ding: 3 categories. (1) Those like Roy Heck, who are eligible for habeas at the time of their 1983 petition. (2) Prisoners who were eligible for habeas but lost it. (3) Plaintiffs like Ferris, who were never eligible for habeas. Without 1983, Ferris wouldn’t have access to federal court.

Mitha Nandagopalan March 21, 20176:31 pm

J. Prost: Prisoners who have been released aren’t eligible for habeas. So why does that matter?

Mitha Nandagopalan March 21, 20176:31 pm

Ding: Heck isn’t so clear. Heck refers to plaintiffs and prisoners interchangeably, and ambiguously. J. Souter says we should recognize the ambiguity.

Madelyn Peterson March 21, 20176:31 pm

J Raggi wants to know what the basis for finding that.

Mitha Nandagopalan March 21, 20176:30 pm

Ding: Heck‘s ruling doesn’t extend to plaintiffs like Ferris, who were never eligible for habeas. The plaintiff in Heck could have used habeas to address the same claims he brought through 1983.

Mitha Nandagopalan March 21, 20176:29 pm

Ding turns to his second argument: habeas eligibility

Mitha Nandagopalan March 21, 20176:29 pm

Ding: For Heck to apply, this case must necessarily undermine the conviction. Ferris isn’t disputing the conviction here.

Mitha Nandagopalan March 21, 20176:28 pm

J. Raggi: But he lost his job because of the conviction.

Ding: The record doesn’t say that that was the reason.

Madelyn Peterson March 21, 20176:27 pm

J Raggi asks counsel to clarify what the injury to the victim was.

Mitha Nandagopalan March 21, 20176:27 pm

Ding cites to McMahon. No challenge to the conviction, but the injury to the client includes him losing his job.

Mitha Nandagopalan March 21, 20176:27 pm

J. Raggi: You’re missing my question. The complaint alleges there would have been no conviction but for the incriminating statement. So how does the challenge not implicate the conviction?

Madelyn Peterson March 21, 20176:26 pm

J. Raggi concerned with how the guilty plea infects the conviction.

Mitha Nandagopalan March 21, 20176:26 pm

Ding: If the guilty plea was involuntary, or if the 1983 claim would negate an element of the crime, Heck would apply. Neither of those is the case here.

Mitha Nandagopalan March 21, 20176:25 pm

J. Prost: So, are guilty pleas never convictions for the purposes of 1983?

Mitha Nandagopalan March 21, 20176:25 pm

Judge Prost points out that the only piece of evidence behind the conviction was 1 statement.

Mitha Nandagopalan March 21, 20176:24 pm

2 reasons why the 1983 action is not barred:

1. Success on his claim wouldn’t necessarily overturn his conviction
2. He wasn’t eligible for federal habeas.

Madelyn Peterson March 21, 20176:24 pm

Judge Raggi asks counsel to clarify exactly which piece of the rule they will be challenging.

Mitha Nandagopalan March 21, 20176:23 pm

Co-counsel Lydia Lichlyter will handle the 5th Amendment issue.

Madelyn Peterson March 21, 20176:23 pm

Mr. Ding starts off with a discussion of the favorable termination rule.

Mitha Nandagopalan March 21, 20176:22 pm

Frederick Ding for the Appellant starts us off…

Mitha Nandagopalan March 21, 20176:22 pm

Silence your devices, folks. Unless you’re in overflow.

Mitha Nandagopalan March 21, 20176:21 pm

Dean Minow shouts out everyone who contributed to writing this year’s problem and coordinating the competition.

Mitha Nandagopalan March 21, 20176:19 pm

Dean Minow promises a hot bench…

Mitha Nandagopalan March 21, 20176:18 pm

Dean Minow introduces the judges. If you missed it, we assume you can google their bios.

Mitha Nandagopalan March 21, 20176:15 pm

Dragons, boars, and they haven’t updated the classroom layout since.

Mitha Nandagopalan March 21, 20176:15 pm

And Dean Minow is opening with a welcome address. Austin Hall – first building constructed in the US for the purpose of being a law school building

Mitha Nandagopalan March 21, 20176:14 pm

On the bench tonight,

The Honorable Reena Raggi, U.S. Court of Appeals for the Second Circuit as Chief Judge
The Honorable Sharon Prost, U.S. Court of Appeals for the Federal Circuit
The Honorable Tanya, U.S. District Court for the District of Columbia

Mitha Nandagopalan March 21, 20176:10 pm

Welcome to CR-CL’s Ames Live Blog!

Today’s case, Austin Ferris v. Martin Bueller, arises from City of Bork employee Austin Ferris’ admission on an employment questionnaire to having previously driven after smoking marijuana. City Manager Martin Bueller gave Ferris’ questionnaire response to the police, resulting in a summons to Ferris and a warrant issued to search his house and car. When the search warrant was executed, Ferris agreed to an on-the-spot plea deal: he pleaded to marijuana possession and paid a $400 fine, and the DWI was dropped. Ferris sued under 42 U.S.C. s. 1983 alleging a violation of his 5th Amendment right against self-incrimination. The district court dismissed the lawsuit; Ferris appeals. This case presents two issues:

(1) Whether Heck v. Humphrey’s favorable-termination rule bar’s appellant’s s. 1983 claim; and

(2) Whether appellant raises a cognizable 5th Amendment violation given that the evidence against him was never used at trial.

For the appellant, the Fred K. Korematsu Memorial Team:

Frederick Ding
Vivian Dong
Henry Druschel
Lydia Lichlyter
Raeesa Munshi
William Schmidt

For the appellee, the Thurgood Marshall Memorial Team:

Melinda Johnson
Emma Kohse
Anika Khan
Aaron Marks
Jessie Ratcliffe
Anne Thoma
Written by

Lisa is a 2L at HLS. She's from Boston, and lived in China, Indiana, Oregon, and Washington growing up. Before law school, she worked at M.I.T. and Kobre & Kim, a litigation boutique, in New York and Hong Kong. She received her A.B. in History & Literature from Harvard College.

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