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A group of Republican Senators, led by Senate Commerce Committee Chairman Roger Wicker, introduced the COVID-19 Consumer Data Protection Act of 2020 (the Act) on May 7, 2020.1The Act would address privacy issues associated with certain entities collection, use, and disclosure of geolocation information and other data for the narrow purpose of identifying and tracking those who have COVID-19 or have been in close proximity to those who are likely infectious (contact tracing).

It would remain in force only until the Secretary of Health and Human Services rescinds the public health emergency he declared when the pandemic began. Although the Act is limited in scope and duration, it could influence future privacy legislation at the federal and state levels.

Among other things, the Act would require entities subject to the Federal Trade Commission Act (FTC Act), common carriers, and non-profit organizations (covered entities) to give notice and obtain opt-in consent before collecting, processing, and transferring limited types of information (covered data) from individuals for one of three purposes (covered purposes). The Act does not apply to service providers, which are entities that perform services on behalf of and at the direction of covered entities.

The Act would require covered entities to provide individuals notice at or before the time of collection and to obtain their opt-in consent before collecting, using, or disclosing covered information for one of three covered purposes:

Covered entities would be required to publicly commit not to use data for another purpose, except under limited circumstances, and they would be required to provide individuals with a mechanism to revoke consent and then to act on the revocation, either by ending the collection, processing, or transfer of the data, or by de-identifying the data.

In addition, the Act would require covered entities to take reasonable measures to ensure that the data they collect is accurate and to publish privacy policies and issue public reports every 60 days, after an initial report within 30 days of enactment, disclosing information about their data collection, use, and disclosure, including the categories of data collected and entities to whom such data was transferred.

Finally, the Act would impose both security and data minimization obligations on covered entities and direct the FTC to issue best practices regarding data minimization.

The Act would apply to just four types of information: (1) precise geolocation information, (2) proximity data, (3) a persistent identifier, and (4) personal health information.

Precise geolocation information means technologically derived information capable of determining with reasonable specificity the past or present actual physical location of an individual at a specific point in time.

The scope of this term is unclear: the Act does not require GPS-level precision and does not explain what reasonable specificity means. It therefore could include cell site location information (CSLI), which is data showing the location of the cell tower(s) to which a wireless device is connected at particular times and, with triangulation, approximating the location of a cell phone near the tower, within a few blocks at best and sometimes up to several square miles at worst.

As such, CSLI generally does not reveal location with anything close to pinpoint accuracy the way that GPS data does (within five to 10 feet), but it has been deemed sufficiently revealing to deserve protection under the Fourth Amendment.2

The Act expressly excludes the following categories of data: aggregated data, de-identified data, publicly available information, business contact information, and employee screening data.3The last category is defined broadly to include any covered data of an employee, owner, director, officer, staff member trainee, vendor, visitor, intern, volunteer or contractor of a covered entity that the covered entity processes to determine whether the individual could pose a COVID-19-related health threat by entering the premises. This exclusion gives businesses that would otherwise be covered entities under the Act greater flexibility to protect their workplaces.

In addition, the Act defines individual to exclude someone who is a full-time or part-time, paid or unpaid employee, owner, director, officer, staff member, trainee, vendor, visitor, intern, volunteer, or contractor of a covered entity permitted to enter that covered entitys physical site of operation. This, too, could give entities that operate public venues including restaurants, retail stores, and the like leeway to collect and use covered data to protect their environments from the public health threat without having to adhere to the Act.

The Act would preempt federal, state, and local laws, regulations, rules, standards, and requirements, but only to the extent that they are related to the collection, use, and disclosure of covered data for the COVID-19-related purposes described above. The Act expressly limits the Federal Communications Commissions ability to enforce its privacy provisions and regulations against covered entities, with the exception of rules governing 911 calls and emergencies, but again, only to the extent that such laws and rules that the FCC enforces are related to covered data and covered purposes, and only when the communications providers regulated are acting as covered entities and not service providers.

The FTC would have exclusive authority to enforce the Act against covered entities, except that state attorneys general would be able to enforce the Act in coordination with, and with deference to, the FTC, to obtain, among other relief, damages, civil penalties, restitution, or other compensation on behalf of the residents of the State. These enforcement provisions effectively preclude private rights of action.

The Act appears to have been designed to address concerns regarding the contact tracing apps that have garnered much media attention since they were proposed by Google and Apple. The first draft of the Act was extremely broad and would have regulated a wide range of commercial entities that collected covered data for one of the covered purposes. The drafters have taken steps to carve out employers and proprietors of commercial establishments, allowing them greater flexibility to collect, use, and share covered data to protect the workplaces and public venues that they operate.

Moreover, unlike the earlier draft, the Act carves out service providers from the definition of covered entities. This exclusion should be a welcome change for ISPs and wireless carriers who could have been covered under the broad language of the previous draft and would have taken on significant compliance obligations with respect to precise geolocation information. ISPs and wireless carriers will have to be mindful, however, of whether they are acting as a service provider or as a covered entity when they engage in data collection, use, or transfer for one of the covered purposes. Depending on their role in a given scenario, they might be covered by the Act.

The Act could pose challenges for some likely use cases. For instance, unlike personal health information, neither precise geolocation information nor proximity data must be linked or linkable to a specific person. If obtaining opt-in consent from individuals is not feasible, the Act could preclude tracking general compliance with social distancing orders, even when the information is not used to identify a particular individual. Covered entities wishing to facilitate this kind of tracking would have to take steps to ensure that such information was de-identified, a task made difficult given the potential to use certain types of location information to identify specific individuals.

Finally, the Act could portend the new normal. Although the sunset provision ensures that the Act would not last longer than the state of emergency, we do not know when it might end. Moreover, it could be very hard to ratchet down restrictions on the collection, use, and disclosure of information once they have been established and implemented. We therefore should not be surprised if these provisions find their way into future federal omnibus privacy bills.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

1 Democratic Senators are drafting their own bill to address these issues. We will analyze that bill in another client alert.2 The U.S. Supreme Court held that law enforcement must obtain a warrant before seeking historical long-term CSLI because it can reveal much about where a person has been, for how long, when, and with whom. Carpenter v. U.S. 138 S. Ct. 2206 (2018).3 The Act adopts a de-identification standard similar to the FTCs three-part test.

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See the article here:
Protecting Privacy and Public Health: The Senate Republican Proposal - JD Supra

Would you (peace officers) follow an order to search someones home unlawfully in violation of the Fourth Amendment? You have no search warrant, court order, exigency, parole or probation exemptions, fresh pursuit, plain sight, no probable cause to even secure the residence for a warrant, etc. The answer should unambiguously be, NO!

What if your mayor or governor made the same demand via executive order? Hopefully, the answer would remain, forcefully, NO!

Yet what if there was a really good reason, like a public pandemic? Would you go house to house at the demands of a politician who justified that his or her order was meant to facilitate the greater good? Although the illustration is easy to answer for most police officers since the lines of delineation between right and wrong are clear, this appears to be the roller coaster ride we are currently on.

Things have gotten pretty murky with executive orders being issued in violation of several constitutional rights. Weve clearly seen demands that have violated the First, Second, and Fourth Amendments of the U.S. Constitution. Moreover, citizens caught failing to comply with these commands have been warned, cited, and arrested. This is becoming a field day for constitutional attorneys defending these cases, many of which have been immediately dismissed.

The problem for police officers is that many of the orders are not exactly defined as illegal until a court says so. In the meantime, politicians are expecting cops to be mindless robots following directives under the threat of discipline; or worse yet, termination.

We are beginning to see it happen, and it should scare the luster off our badge. Its tyranny, and its currently being practiced across America at this very moment.

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As the coronavirus takes on political manifestations demanding safety at all cost, the price being paid includes economic catastrophes, which lead to high rates of domestic violence, drug and alcohol abuse as well as suicide. Therefore, in reality, the safety protocols are producing extremely tragic, unintended consequences. Some argue the results will ultimately outweigh coronavirus concerns.

That is why the salon owner in Dallas and other business owners like her have said enough, and are willing to be jailed or cited in defiance. Long-term repression of liberty and freedom ARE NOT the American way.

Police leaders should consult with legal counsel as the stakes are increasing, particularly those working in organizations demanding that police officers enforce orders that discard the Bill of Rights.

Peace officers should also consult with their labor attorneys before they are fired for insubordination, as Ive heard many cops talking about the price theyd pay if they failed to comply with enforcement demands resulting from executive orders issued by mayors and governors.

However, there will also be a price to pay for blind allegiance to violating constitutional rights, assuming our republic doesnt crumble.

The following excerpt is from an earlier Law Officer article, Taking enforcement action on rules that violate the Bill of Rights is bad practice.

Almost all orders related to COVID-19 violate the Bill of Rights in one way or another. Therefore, any government agency taking an aggressive enforcement approach, including the physical use of force, should reconsider its actions. We (peace officers) swore an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic.

Historically, the enemy has been far more recognizable. Yet now it is masked in the zeal of political leaders willing to discard the Constitution as they flex their power with the explicit desire to be powerful.This is more than the slippery slope we often use as an idiom, its a tidal wave crashing down on freedom and the blood that was shed to obtain and defend it.

Therefore, police officers need to reflect upon the substance of the oath they took when their badge was pinned in place.

So, am Im calling political leaders urging aggressive enforcement of rules as our enemy? If they continue to repress liberty, freedom, or the values that created American exceptionlism, they are not acting like a friend to our way of life. As a matter of fact, the more these individuals demand compliance with unreasonable demands, the more they sound like third-world dictators. Hence, an enemy!

So back to my original question: Would you intentionally search someones home unlawfully in violation of the Fourth Amendment? Of course not! Or would you?

Jim McNeff

Read this article:
What if police were ordered to search homes in violation of the Fourth Amendment? - LawOfficer.com

Everyones talking about unmasking, but very few people are being honest about what that term really means or where it came from.

The Donald Trump White House and its allies have projected the notion that the unmasking process is always nefarious and illegal, though the current administration has issued unmasking requests far in excess of the administration of immediate predecessor Barack Obama. National security state fixtures and Democrats insist the unmasking process is standard, routine, and necessary despite the fact that unmasking has only existed for a little over a decade and was specifically conceived as an ex post facto method to reward and protect what critics say is rampant criminality by the national security state.

Spying on American citizens without a warrant used to be illegal. The administration fronted by George W. Bush and largely administered by Dick Cheney did it anyway for several years. In 2005, The New York Times finally released a story that had been withheld prior to the 2004 presidential election which confirmed the existence of the program known as Stellar Wind which critics call unconstitutional.

The reactionary U.S. Congress, with both houses controlled by the Democratic Party, passed a bill to retroactively and arguably legalize these spying efforts by way of the Protect America Act of 2007. Subsequent amendments made in the Foreign Intelligence Surveillance Amendments Act (FISA) of 2008 ensured that the Bush-Cheney warrantless spying program would stand the test of time.

Gone were the days of law enforcement having to seek out warrants for intercepting Americans communications. So long as the spy agency targets a foreign national reasonably believed to be outside the United States, the government has given free rein, for up to one year, to listen in and otherwise collect all forms of electronic data.

One of the few protections afforded to American citizens who are caught up in such dragnets is the masking requirement, which is mainly sourced from FISAs general minimization procedures. Each agencys rules are somewhat different, but when, for example, the Federal Bureau of Investigation (FBI) or National Security Agency (NSA) targets a foreign national and catches the name or communications of an American citizen, the spy agency is supposed to obscure the American citizens name by using U.S. Person 1 or a named U.S. Person in any resulting intelligence reports.

Those protections are, by design, not very strong.

FISA simply provides that American citizens have a reasonable expectation of privacy vis--vis such intercepted communications a legal standard derived from Fourth Amendment jurisprudence.

The statute also offers a general definitional guideline:

Minimization procedures, with respect to electronic surveillance, means

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such persons consent, unless such persons identity is necessary to understand foreign intelligence information or assess its importance;

Spy agencies, in turn, craft their own determinations of how to keep American citizens privacy in place via internal rules.

Thus, those agencies mask. But national security officials and other high-level executive branch figures can also unmask with ease if they merely justify their unmasking requests with a plea to national security or some other allegedly legitimate rationale.

Unmasking procedures are also governed by internal agency rules andof a piece with the Kafkaesque contours of FISA generallytheres only oversight in name. That is, there is effectively no oversight whatsoever. Whether or not an unmasking is truly legitimate is necessarily impossible for the American public to know.

A brief unmasking scandal quickly passed through the collective consciousness during the spring and early summer of 2017 after allies of President Donald Trump alleged that highly-placed Obama administration officials mishandled and leaked surveillance information in a way that led to the improper identification of non-targets implicated in a foreign intelligence-gathering scheme.

Those charges, mainstreamed by Rep. Devin Nunes (R-Calif.) on behalf of the White House, effectively amounted to a dual-pronged blunt political instrument: (1) they suggested the then-controversial idea that Barack Obama authorized surveillance against the Trump campaign; and (2) they had characteristics of specific retribution directed against members of Trumps transition team.

The original story concerned Obamas onetime national security adviser, Susan Rice, who was apparently the foremost impetus behind the majority of those requests for the Trump aides in question to be unmasked after they appeared in surveillance reports of non-U.S. citizens during the final days of the Obama administration.

Again, the names of Americans are initially redacted in such intelligence reports. But the quirks of the national security state reward powerful individuals with end-runs around procedures and safeguards if their hearts desire such knowledge. When Rice requested those redactions be lifted, the intelligence community was more than happy to comply. It is a feature, not a bug, of how such facially sensitive information can quickly shape-shift according to political whims. Thats how the national security state works.

The inner logic is power itself. Democrats and national security-flavored pundits insisted the whole to-do was merely ho-hum; the Trump administration saw red, called foul and screamed like blood at several decibels for awhile. The scandal eventually died down and went away. Now it is back again.

Now, it appears, other key Obama administration officials were part of those unmasking efforts including presumptive Democratic Party presidential nominee and former vice president Joe Biden.

And this time, theres no guessing game as to who was outed for being mentioned by or conversing with a foreign surveillance target. This time around, the unmasked man is well known and already consuming a fair deal of digital ink and broadcast bandwidth. And he just so happens to be the subject of Trumpworlds latest passion play: retired lieutenant general Michael Flynn.

CBS News reporter Catherine Herridge posted images of documents that showcased Bidens involvementin the purported scandal mid afternoon on Wednesday. Other high profile Obama administration officials also signed off on the Flynn unmasking decision, like James Clapper, John Brennan and Samantha Power.

Notably, the Biden campaign did not respond favorably to Herridges reporting.

SCOOP, tweeted Bidens Rapid Response Director Andrew Bates in a since-deleted tweet. Catherine Herridge is a partisan, rightwing [sic] hack who is a regular conduit for conservative media manipulation ploys because she agrees to publicize things before contacting the target to ask for comment.

As it turns out, Bidens request to unmask Flynn was made on January 12, 2017 the same day that the Washington Posts David Ignatius initially reported on the conversations via Flynn and then-Russian ambassador Sergey Kislyak. The Intercepts Glenn Greenwald argued at the time that the senior U.S. government officials leak to Ignatius was illegal. It would not be a surprise if Trumps allies pushed for an investigation. Such a course of action would, of course, have severe implications for the 2020 presidential election.

This was the description of the list of individuals who submitted requests to unmask Flynn:

The landscape here is a partisan minefield constructed out of what the intelligence community insists is simply business as usual.

Former CIA official Michael Morell told the Washington Post that unmasking happens all the time: literally hundreds of times a year across multiple administrations, he said. In general, senior officials make the requests when necessary to understand the underlying intelligence. I myself did it several times a month and NSA adjudicates the request.

Former Director of National Intelligence and retired lieutenant general James Clapper said Thursday on SiriusXMs The Joe Madison Show that unmasking is not at all nefarious.

Well, I think creating that exact narrative as though this was something illegitimate or inappropriate when it is actually a very, very useful tool available to national security officials. And I know that officials in the current administration are using it to a fairly well actually much more than the previous administration, he said. So they too must recognize that this is a valuable tool that serves the national security interests of the United States. Its not at all nefarious. And the unmasking is occasioned by the interest, the objective of trying to minimize the identity of U.S. persons and restrict that access as much as possible. Thats why the program is designed the way it is. So its a legitimate, appropriate and important national security tool.

He also said that the alarm bells were going off about Flynn and that it was perfectly legitimate to take a closer look.

There were actually dozens of contacts with various representatives of Russia. And so at the time our dashboard warning light [started blinking] . . . given the responsibilities of these positions, it seems to me perfectly legitimate, in fact people would be derelict if they didnt have enough curiosity to inquire what was going on, he added.

Civil libertarians and Fourth Amendment advocates would likely counter that the status quo of routinely unmasking American citizens due to requests from political appointees is, actually, somewhat problematic and, as noted above, its certainly not a longstanding feature of American society; it was only constructed from the ashes of an expressly illegal and unconstitutional program in the first place.

So, has the Trump administration found religion when it comes to the protection of Americans civil liberties? Hardly.

In fact, after learning all about the Obama administrations efforts to unmask certain members of their transition team, it seems the Trump administration underwent a Damascene conversion in the exact opposite direction. The 45th presidents national security state has ordered a massive spike in unmasking requests when compared to numbers from prior years.

Former National Security Agency intelligence analyst and counterintelligence officer John Schindler noted the uptick:

[Photo by Drew Angerer/Getty Images.]

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These Are the Legal Issues Surrounding Unmasking, and Heres Whos Doing It the Most - Law & Crime

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Mike Jellison, owner of PA Fitness in Arlington, Wash., has decided to reopen his gym despite Washingtons ongoing stay-at-home order.

Initially, Jellison did close his business. He took time off, went to Arizona where his family has a home to think about the future, and told the Jason Rantz Show that he even considered retiring.

I understand. I get it. Everybodys got their own job, but now Ive got my job and Ive got to reassess, understand what I need to do, Jellison said. And then I started digging into a proper procedure, a proper way of actually running our situation.

WA salon owner believes they could safely reopen now, if allowed

Jellison said he listened to the federal briefings with President Trump and understood that health and fitness is essential for a persons mental and physical well-being. Knowing that, it seemed reasonable to expect a gym or fitness center to be included in the early reopening phases.

I mean, thats what he had stated, and thats what I thought the situation would end up being, Jellison said. So coming back up here after that situation, with all my ducks in a row and all the plans and procedures and understandings to make us CDC qualified, and everything in order, come to find out it wasnt to be.

Then, Jellison said, he was infuriated.

I started looking into our constitutional rights and checking out my Fourth Amendment, for business purposes, understanding that we have certain rights, he said. Were all Americans. Everybody has a say in whats going to happen, and whats going to go on, and what were doing. Its called the Constitution. It was put in place for us.

The last straw for Jellison was that any county would have to go three weeks, at least during this phase, without a positive case or a death. Spokane County was denied the ability to move to Phase 2 because of this rule.

I listened to that, and I was outraged, he said. I was totally outraged because of the idea that this cant be true.

So then he opened, with proper rules and restrictions in place.

In my facility, what we did is we put everything at six feet apart, he said. We got rid of half of our stuff. Were doing cleanings through a cleaning company, through us, bleaching. Were doing everything we need to do once an hour. Were taking temperatures at the front door to make sure that nobody is compromised.

The person at the front door checking temperatures wears a mask and gloves. Once the temperature is approved, each person signs a waiver from the insurance company.

We hand them a disinfectant bottle, which is a hospital disinfectant and a towel. They have the personal stuff, and then they go on about their business and do their workout constructively, Jellison said. We have a couple of rovers that are on the floor, and what they do is they make sure that the customers are doing their job.

Jellison said his gym wants to set a good example for the community.

We want to make sure that the community understands that were trying to be as responsible as possible, he said. But physical and mental health is important, and its been pushed to the side for a long time. Its just not right.

Jellison said PA Fitness was contacted yesterday by the state. They had received one complaint, Jellison said. While Jellison said he respects others opinions and right to complain, he also has heard from many more people who recognize that he is trying to do the right thing and being responsible.

Why one customer defied the rules to get a haircut at Snohomish barbershop

He said hes not worried about his business license because he understands his rights as a business owner and has thought about the recourse to his action.

I understand what, legally, what can and cant happen to me. I get it, he said. Like I told my other partners, Ill be the shield, you be the sword.

His message to Gov. Inslee is to put the people as the first priority.

Dont use us as second, third, or fourth priority of what you have going on, he said. I mean, we cant be a sub line, the people, to your agenda. Put the people first because we deserve it.

PA Fitness in Arlington will remain open, Jellison said.

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Arlington gym owner reopens, trying to be as responsible as possible - MyNorthwest.com

Last year, I blogged about State v. Elliswhere a passing motorist gave a Highway Patrol trooper the middle-finger salute and was arrested for his trouble. A divided Court of Appeals allowed the defendants conviction to stand. The case made it to the Supreme Court, which recently issued an opinionreversing the conviction.

A quick recap of our story. A trooper was assisting motorists when he noticed that the passenger in a car driving by had extended his hand out the window and was waving. After the vehicle passed, the trooper kept watching and saw that the waving stopped but the passengers middle finger remained extended. The trooper pursued and stopped the car. The passenger would not identify himself until cuffed and placed in the patrol car. Having determined that no one was in distress, the trooper issued a citation to the passenger for resisting, delaying, and obstructing an officer.

At trial, the defendant moved to suppress evidence of his refusal to identify himself, arguing that the facts did not establish reasonable suspicion to justify the stop. After hearing evidence from the trooper, the trial court orally denied the motion without making written findings of fact or conclusions of law, stating instead that [b]ased on a review of the evidence, the Court does find reasonable suspicion for the stop. In addition, based upon the totality of the evidence the Court does find probable cause for the arrest. The defendant then pled guilty, but reserved his right to appeal the denial of his suppression motion.

In its first opinion, filed on 6 August 2019, the Court of Appeals majority found no error. In the absence of written findings of fact and conclusions of law, the Court of Appeals inferred findings based upon the trial courts oral ruling and assessed de novo whether those findings supported the trial courts legal conclusion.

The Court of Appeals noted that the issue was not whether shooting the bird was a crime and that the defendant was not charged on the basis of that behavior. Instead, the issue was whether the trooper, when initiating the stop, had reasonable suspicion that criminal activity was afoot. The majority concluded that the defendants actions reasonably could alert an objective officer to a pending breach of the peace. In dissent, Judge Arrowood argued that no reasonable suspicion existed for the stop.

Heres where it gets interesting. The majority noted that the States brief did not argue that the stop was predicated on reasonable suspicion. Instead, the State had contended that the community caretaker exception, whose application does not require reasonable suspicion, justified the stop. The majority disagreed, finding the community caretaker exception inapplicable. However, the court went on to observe that, because the State was the appellee, the majority could still affirm the trial courts decision on an alternative reasonable suspicion theory. In so doing, the Court of Appeals stated that it is our duty to affirm the trial courts ruling if there is any legal means to justify that trial courts ruling, even if that reason was not argued by the appellee. Indeed, it is our duty to consider all possible legal bases to affirm the trial court even if the State, as appellee, had not filed a brief at all.

This language caused a bit of a stir in the appellate practitioner world. Questions arose as to whether the issue of reasonable suspicion had been fully argued and preserved below or whether the issue merely had been noted in the trial courts ruling, abandoned by the State in its appellees brief, and then invoked by the Court of Appeals majority sua sponte. Also, the language about the Court of Appeals duty to affirm was generating debate. Just as I completed a blog post discussing the original opinion, the Court of Appeals withdrew it and filed a new opinionon 20 August 2019.

In its reissued opinion, the majority again affirmed the trial court, but with two significant modifications. First, the reissued opinion specifically stated that the question of reasonable suspicion had been raised and argued before the trial court, thereby quelling any question whether the issue had been preserved under Appellate Rule 10, even if it was not argued on appeal as contemplated by Appellate Rule 28. Second, discussion of the States brief was relegated to footnote 5, where the opinion stated that the State argues, as an alternative legal basis justifying the stop, that the troopers traffic stop was justified under the judicially-recognized community caretaking exception, then noted that exception was inapplicable. The footnote could be read to suggest that the State had argued both reasonable suspicion and community caretaker, though as we will see below, the States sole contention to that court was the latter. Judge Arrowood maintained his dissent, modified in light of the revised majority opinion.

Taken together, these two Court of Appeals opinions suggest some limit on a reviewing courts ability to strike out on its own when resolving a case. As indicated in the first Court of Appeals opinion, an appellee can prevail on appeal without filing a brief. The burden is on the appellant to convince the reviewing court that the trial court committed reversible error; a bold (or broke) appellee can just sit by and watch. So the reviewing courts opinion in favor of such a silent appellee will be based on a premise that was not briefed, at least not by the prevailing party. May the reviewing court reverse based upon a theory no one ever argued? The original opinion emphatically said yes. The revised opinion suggests a more limited approach, that a reviewing court may rely on an issue that was preserved, even if not presented on appeal.

The defendant appealed to the Supreme Court on the basis of the dissent. The States brief to the Supremes makes unusual reading, to say the least. The State advised the Supreme Court that while the Court of Appeals found that the trooper had reasonable suspicion that justified the stop, [t]he State did not assert this argument in its appellate brief or raise it during oral argument. Rather, it solely contended that the community caretaking exception to the Fourth Amendment applied. The State added that it does not believe that the specific articulable facts included in this record established reasonable suspicion of the crime of disorderly conduct. Lest there be any doubt, the State closed its brief by stating that the decision of the majority of the Court of Appeals should be reversed.

In a unanimous opinion filed on 1 May 2020, the Supreme Court reversed and remanded the Court of Appeals opinion. The matter was determined on the record and briefs without oral argument. The Supreme Courts straightforward opinion reviewed the inferred facts and concluded that no reasonable suspicion existed to justify the initial stop.

Think about what happened here. Recall that the State, to its credit, candidly acknowledged the limited basis of its appeal and conceded that it had never argued the theory on which the Court of Appeals relied. Even so, the Supreme Court, without discussion, followed and analyzed the reasonable suspicion argument that the State did not argue but the Court of Appeals embraced. The original blog post in this chain discussed cases where the reviewing court found that the trial court reached the right result while using the wrong rationale. Here, in a bit of a twist on that earlier post, the Supreme Court found that the Court of Appeals reached the wrong result but had based that result upon a misapplication of the right rationale.

Various permutations of this process are not hard to find. Another prime example where a reviewing court decided issues neither briefed nor argued is Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998). In that case, the Supreme Court abolished the distinction between invitees and licensees in premises liability case. This result came as a surprise to the litigants, none of whom had advocated for such a significant jurisprudential shift.

Similar events can be found in the Big Leagues. Ever-vigilant Beth has pointed me to United States v. Evelyn Sineneng-Smith, U.S. Supreme Court case number 19-67, issued this month, reversing a Ninth Circuit opinion. Writing for a unanimous Court, Justice Ginsburg remanded the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel. Ouch. RBG noted the issue addressed in this post when she added A court is not hidebound by the precise arguments of counsel, but the Ninth Circuits radical transformation of this case goes well beyond the pale. Ouch again.

Often, these appellate gyrations may be a practical necessity. Trial courts and litigators need to know the bases for the reviewing courts decisions. Thats why we have written opinions. The reviewing courts obligation to oversee the states jurisprudence and reach sound conclusions will sometimes lead it to a rationale that those below did not see coming. It only makes sense for the ultimate reviewing court to be explicit in those rationales. As Beth and Matts treatise notes, the ultimate responsibility for jurisdictional oversight lies with the jurisdictions court of last resort, though intermediate reviewing courts also have a role. Elizabeth Brooks Scherer & Matthew Nis Leerberg, North Carolina Appellate Practice and Procedure, 2.05[4].

Unanswered is the question how far a reviewing court may (or must) go to reach a correct result. Ellis illuminates the risks inherent in a courts decision to reach what it sees to be the right outcome. The Court of Appeals majority found for the State on a legal basis that the State deliberately had not argued on appeal and later explicitly rejected when in the Supreme Court. In other words, the Court of Appeals majority reached beyond the issues briefed for a result it thought correct, but no one else did, including the beneficiary of the courts reaching.

Litigants and trial judges would surely like to know the limitations, if any, on the reviewing courts ability to look beyond the issues the parties have chosen to present. The process illustrated here in Ellis can be frustrating for those involved in a case who were giving it their best effort but were unexpectedly second-guessed by the reviewing court.

Should the parties be notified and given the opportunity to be heard when the reviewing court is considering a theory that no one argued? While that sounds sensible, implementing it would be a jolt to the cultures of both of North Carolinas appellate courts, at least as existed when I was there. The judges and justices rarely discussed cases before they were calendared, so the panels did not know the outcome and rationale of a case until the judges or justices discussed it in conference and voted on the resolution. Only then could supplemental briefing be ordered if the court was considering going in a direction unanticipated by the parties.

What are the lessons from this case? For one, if you are of a mind to tell a trooper or officer that they are Number 1, use your index finger.

Has something like this ever happened to you? Can you recall any opinions where the appellate courts admitted that they were deciding the appeal based on a theory not argued in any of the appellate briefs? Or where the reviewing court went off on a frolic of its own sub silentio?

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Link:
Appellate Rulings Not Argued By Any Party; Or Too Many Fingers In The Pie - JD Supra