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!
Congrats to both teams, and tune in tomorrow night for CR-CL’s live blog of Willa D. Lowe v. Ames Meat, Inc.
…Which kind of calls into question how seriously law students take moot court, if you think about it
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!
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.
J. Raggi compliments the oralists on their conversational style, respect for the court, and knowledge of the record and cases.
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.
J. Prost notes that she regularly hears the best oral advocates, including Solicitors General, but tonight’s briefs and oralists measured up.
J. Chutkan: I’m glad I’m a district court judge, because this is hard! But judging appellate oral advocacy was fun.
And some feedback from the judges.
Best Overall Team: Fred T. Korematsu Team
Best Brief: If we could tie, we would, but the Thurgood Marshall Memorial Team takes the prize.
Best Oralist: Lydia Lichlyter
J. Raggi compliments both teams and acknowledges that all decisions were close.
I don’t know about y’all but we got some drumrollers here in overflow.
And we’re back. That was a sudden silence!
Jacob Steiner throwing the camera a glance for the benefit of the overflow room
And that’s it for rebuttal, brief recess while the judges deliberate.
J. Raggi packing in a lot of snark late in the game
And a jab about attorneys’ fees
And J. Raggi grants permission for Lichlyter to answer over time.
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?
J. Raggi jumps in with a question as we’re running up on time! Must be nice being on the bench.
Lichlyter: As to 5th Amendment, defendants have proposed a piecemeal definition of “criminal case.” Pretrial proceedings must be included in this court’s definition.
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.
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.
Lydia Lichlyter on the rebuttal
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.
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.
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.
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.
J. Raggi asks about what the appellee means by their first footnote.
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”
J. Raggi: is qualified immunity a part of the equation?
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.
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?
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.
J. Raggi: Why focus on whether there was a risk that he would be incarcerated?
J. Raggi: what is the difference between an arrest warrant and the summons in the present case?
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.
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.
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.
J. Raggi: we are not interested in counting up cases, but in the rational.
J. Raggi: what about the arrest warrant?
Johnson admits “criminal case” is broader than “trial”
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.
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.
Johnson: It’s not trial-exclusive. But the preliminary hearing at issue here shouldn’t qualify for 5th Amendment protection.
Johnson: Court should construe “criminal court” narrowly because SCOTUS and other appeals courts have done so
Ooh, Prost getting snarky: Since that’s not a term courts use, could you be a bit more helpful explaining it?
J. Prost: Is “trial-adjacent” something you just made up?
Johnson: No cognizable violation here because 5th Amendment right only applies in context of “a criminal case”
Melinda Johnson on the 5th Amendment for Appelle
Thoma sneaks in that the Muhammed footnote was dicta, and closes out.
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.
J. Raggi: you are ignoring the language in Mohammad that expresses that members of the Supreme Court were in disagreement on this issue.
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.
J. Prost: But if Heck applied in Muhammed, wouldn’t the Court have just said so? Why acknowledge the circuit split.
Thoma: Muhammed footnote doesn’t name an open question, just a circuit split. And that wasn’t the case to decide that circuit split.
J. Raggi: the Supreme Court has acknowledged that this is still an open question.
Thoma: Heck is straightforward – a §1983 claimant whose claim would implicate the validity of the conviction if successful is barred without favorable termination
J. Prost: Turn to the habeas-ineligible argument.
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.
Thoma: no, this is not the type of case that §1983 was designed for.
J. Chutkan: But wasn’t 1983 enacted because state courts historically were hostile to civil rights plaintiffs?
Emphasis on federalism and forum from Thoma
J. Chutkan: what if he had forfeited his right to appeal in his plea bargain?
Thoma: Ferris did appeal eventually. He was indiligent, so shouldn’t get a relaxation of the Heck bar.
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.
J. Raggi: but isn’t that implied in his complaint?
Thoma: Mr. Ferris does not claim that he did not have a true chance to appeal his conviction.
Thoma: Ferris doesn’t claim he didn’t have a true chance to appeal.
J. Chutkan: Forcing plaintiffs to appeal before filing a civil rights claim would be a huge bar.
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.
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.
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 turns to the voice identification process
“Necessarily implicates,” from the bench.
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.
J. Raggi: is the problem not that there is a Heck violation but that there are little to no damages?
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
J. Chutkan: But he stands by the guilty plea. He’s asking for damages on the incriminating statement on pain of losing his job.
J. Raggi: how does allowing Mr. Ferris to maintain this claim call into question his conviction?
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
Thoma: Favorable termination rule was meant to ensure respect for state courts, finality, federalism, consistency, and let’s throw in the kitchen sink.
J. Chutkan: So why is he forced to seek other remedies?
J. Chutkan: But Ferris isn’t seeking to have his conviction vacated or record expunged. He’s asking for damages on the compelled statement.
Thoma jumps right in on the fact that Ferris could have appealed
Anne Thoma on the favorable termination issue, followed by Melinda Johnson on the 5th Amendment
And now to the appellees
Lichlyter gets her request in on time.
Lichlyter: A pre-charge hearing doesn’t make a defendant a “witness against himself” because there’s no case against him.
J Prost: is doesn’t matter at all that the warrant wasn’t executed?
Lichlyter: no is doesn’t.
J. Chutkan: But wouldn’t that implicate the 5th Amendment whenever a judge signs a search warrant?
Lichlyter making a text-base argument about the meaning of “case” in the 5th Amendment
J Raggi – the charge is not a violation?
J Raggi – the guilty plea is also fine?
J Raggi – but because the statement was used in a search warrant there is a claim?
J. Raggi honing in on what exactly Appellant’s complaint rests on – the conviction, the charge, the warrant?
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
J. Prost: But the issue is how far we can extend the 5th Amendment beyond core trial proceedings
Lichlyter: 3 parts to a “criminal case” – (1) trial, (2) trial-adjacent proceedings, and I didn’t catch the last one
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
Honestly that could have been phrased more clearly the first time
J. Prost: What’s the best precedent?
J. Prost: What’s your best case?
J. Prost: What’s your strongest case?
Lichlyter: “Witness against himself” suggests that the speaker is the target of investigation.
Lichlyter: if formal charges had been filed then yes, there would be a case. If it was prior to charges, no.
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?
Longest silence from the bench so far.
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.
Lichlyter moves on to the purposes of the 5th Amendment, to force the prosecution to prove its own case.
J. Raggi – are you prepared to stipulate that Mr. Ferris did not lose his job because of the conviction?
Lichlyter: We are willing to stipulate that Ferris didn’t lose his job because of the conviction.
Lichlyter: Injuries from summons flow from compulsion of the incriminating admission, for instance the loss of Ferris’ job.
J. Raggi – what constitutional injury is there from the summons?
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.
J. Raggi – what injury is there from a warrant that is never executed?
J. Raggi: But what about the fact that the search warrant was never executed?
Lichlyter: That wouldn’t change things. 5th Amendment protection starts when charges are filed.
J. Chutkan: Suppose the same negotiation occurred between Ferris and the prosecutor, but there was no court hearing. Would that be any different?
Lichlyter: “Criminal case” should be “an action, suit, or cause instituted to confront infraction of criminal laws”
Lichlyter: Summons implicates Ferris’ liberty, since it requires him to come to court to answer charges.
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.
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.
Lichlyter: Issue is what constitutes a criminal case. For instance, plea colloquies count.
J. Raggi – asks counsel to discuss the two uses of the statement that are being challenged.
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.”
Lichlyter cites Castigar, which dealt with the federal immunity statute. You can compel self-incriminating testimony provided the witness is immunized.
J Raggi – points out that the application in grand jury and pre-trial proceedings.
Lydia Lichlyter up for the 5th Amendment issue
And a belated request that the order of dismissal be reversed.
J. Raggi thanks counsel for his time and informs him his time is up.
Ding: Here, requiring favorable termination would essentially require Ferris to prevail on state appeal.
J. Prost – points out that Mr. Ferris did not show how the time precluded him.
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.
J. Prost: Is there a different diligence requirement just because he had a shorter time frame?
Ding: Vast different between a prisoner who was imprisoned for a year and lost habeas, and Ferris, who was imprisoned for 14 days.
Ding: Heck would not apply because he did exhaust all options.
Ding: Heck only applies to category 2 prisoners where the defendant loses habeas through indiligence.
J. Raggi: How does Heck apply where a defendant was imprisoned for a year, pursued an appeal, and lost. Does Heck apply?
Ding: Spencer and Muhammed show that SCOTUS left this question open under Heck.
Ding: Lower courts rule in our favor for category 3 plaintiffs.
Ding: we do not rely on the counting of decisions but on the reasoning.
J. Prost refers to Appellants’ brief, Ding responds with a terse, “Exactly, Your Honor.”
Judges really honing on on the exhaustion or no-exhaustion versus state or federal forum.
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?
Ding: Habeas statute explicitly requires exhaustion of state remedies, but 1983 doesn’t.
Ding: Heck rests on the premise that the plaintiff fits the overlap between habeas and 1983.
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.
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.
J. Chutkan: But federal court isn’t Ferris’ only option. He could have appealed in state court.
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.
J. Prost: Prisoners who have been released aren’t eligible for habeas. So why does that matter?
Ding: Heck isn’t so clear. Heck refers to plaintiffs and prisoners interchangeably, and ambiguously. J. Souter says we should recognize the ambiguity.
J Raggi wants to know what the basis for finding that.
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.
Ding turns to his second argument: habeas eligibility
Ding: For Heck to apply, this case must necessarily undermine the conviction. Ferris isn’t disputing the conviction here.
J. Raggi: But he lost his job because of the conviction.
Ding: The record doesn’t say that that was the reason.
J Raggi asks counsel to clarify what the injury to the victim was.
Ding cites to McMahon. No challenge to the conviction, but the injury to the client includes him losing his job.
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?
J. Raggi concerned with how the guilty plea infects the conviction.
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.
J. Prost: So, are guilty pleas never convictions for the purposes of 1983?
Judge Prost points out that the only piece of evidence behind the conviction was 1 statement.
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.
Judge Raggi asks counsel to clarify exactly which piece of the rule they will be challenging.
Co-counsel Lydia Lichlyter will handle the 5th Amendment issue.
Mr. Ding starts off with a discussion of the favorable termination rule.
Frederick Ding for the Appellant starts us off…
Silence your devices, folks. Unless you’re in overflow.
Dean Minow shouts out everyone who contributed to writing this year’s problem and coordinating the competition.
Dean Minow promises a hot bench…
Dean Minow introduces the judges. If you missed it, we assume you can google their bios.
Dragons, boars, and they haven’t updated the classroom layout since.
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
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
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:
For the appellee, the Thurgood Marshall Memorial Team: