Supreme Court Update: Elonis v. United States (13-983), Taylor v. Barkes (14-939) and Bank of America v. Caulkett (13-1421)

June 4, 2015 Supreme Court Update

Greetings, Court fans!

The Court handed down four opinions and a summary reversal to kick off the busiest month of the term. This update will cover Elonis v. United States (13-983), the much anticipated "Facebook threats" case, along with Taylor v. Barkes (14-939), a summary reversal of a lower court misapplication of the qualified immunity standard, and Bank of America v. Caulkett (13-1421), on whether a debtor can void a second mortgage through bankruptcy when the value of his house doesn't even cover the first mortgage.

First up, in Elonis v. United States (13-983), the Court steered clear of thorny First Amendment questions by holding that 18 U.S.C. § 875(c), which makes it a crime to transmit in interstate commerce "any communication containing any threat . . . to injure the person of another," requires more than knowledge that a reasonable person would interpret the communication to contain a threat. The Court declined, however, to define precisely what degree of mental culpability is required to sustain a conviction.

Elonis was an amusement park employee turned amateur rapper and an avid Facebook scribe. In 2010, after his wife left him, Elonis began posting self-styled rap lyrics on Facebook, which contained graphically violent language and imagery. The lyrics were often interspersed with disclaimers noting that they were "fictitious"—and one even made specific reference to "true threat jurisprudence"—but others who viewed them, including his wife and co-workers, interpreted them as truly threatening. His employer alerted the FBI and, after Elonis continued to make perceived threats against kindergartners, the local police, and an FBI agent who visited him at his home, he was indicted for making threats under Section 875(c). At trial, Elonis sought a jury instruction that "the government must prove that he intended to communicate a true threat." The District Court denied that request, instead informing the jury that they could convict Elonis if "a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." The jury had no trouble convicting under that standard, and the Third Circuit affirmed the instruction and conviction.

Though Elonis's cert petition identified a Circuit split on the question whether the First Amendment requires that the Government prove a subjective intent to threaten to sustain a Section 875(c) conviction, the Court ordered the parties to also brief whether, as a matter of statutory interpretation, Section 875(c) itself requires proof of the defendant's subjective intent to threaten. That's the question that the Court addressed—and sort of answered—on Monday, holding 7-2 that the negligence standard applied by the Third Circuit was not sufficient to uphold a conviction under Section 875(c). Writing for the majority, the Chief Justice conceded that the statute itself does not indicate what degree of intent is required but countered that it is a basic principle of criminal law that "wrongdoing must be conscious to be criminal" and that a defendant must be "blameworthy in mind" before he can be found guilty. Although a defendant need not know that his conduct is illegal, per se, he must have knowledge of the facts that make his conduct fit the definition of the offense and the key requirement is that the mens rea element adequately separate guilty from innocent conduct. Section 875(c) would be satisfied, therefore, "if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat." The majority refused to address whether Section 875(c) might be satisfied by proof that the defendant acted recklessly, concluding that that issue was not adequately addressed by the parties and should be left for the circuit courts to consider in the first instance.

The dissenters, Alito and Thomas, each writing separately, took the Chief to task for skirting the recklessness question. Though Alito concurred in the Court's judgment that the negligence standard employed by the District Court and Third Circuit was incorrect, he would have held that proof of recklessness—that is, proof that the defendant "consciously disregard[ed] the risk that the communication transmitted will be interpreted as a true threat"—satisfies Section 875(c) and that the First Amendment does not require a higher standard of mental culpability. The majority's refusal to consider these issues, Alito argued, will "cause confusion and serious problems" for the lower courts who, unlike the Supreme Court, "must actually decide cases." Justice Thomas, too, criticized the majority for casting aside the negligence standard used in nine of the eleven Circuits to have considered the question "and leav[ing] nothing in its place." Unlike Justice Alito, however, Thomas would have affirmed, reasoning that the "background rule of common law favoring general intent" permits a Section 875(c) conviction under the general-intent standard applied by the Third Circuit.

So, at the end of the day, eight Justices agreed that the general-intent/negligence standard applied in Elonis's case was insufficient, but it would be premature for Elonis to "like" the decision. As Justice Thomas pointed out, lower courts "can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the [majority] opinion carefully leaves open the possibility that recklessness may be enough." The Government will surely take that view on remand and it is no stretch to predict that a jury would find that Elonis recklessly disregarded the risk that his Facebook posts would be interpreted as true threats. So we have likely not heard the last of Elonis—aka "Tone Dougie." Perhaps his next appeal will require the Court to decide the questions—including whether the First Amendment requires a specific intent to threaten—that it ducked this round.

The Third Circuit took another hit in Taylor v. Barkes (14-939), one more in the increasingly long line of recent summary reversals chiding the lower courts for misapplying the "clearly established law" standard of qualified immunity, while scrupulously avoiding the establishment of any clear law. Here, the Third Circuit held that two supervisory defendants—the Commissioner of the Delaware Department of Correction and the warden of the prison in which Christopher Barkes was an inmate—could be subject to supervisory liability for failing to prevent Barkes from committing suicide while in custody. The Court granted certiorari and reversed without briefing or argument, holding that, at the time Barkes committed suicide, there was no clearly established right to the proper implementation of adequate suicide prevention protocols. The Supreme Court has never held that a prisoner has a right to adequate suicide-prevention protocols and even assuming that "a robust consensus of cases of persuasive authority" in the circuit courts could theoretically establish such a right, no such consensus existed at the time Barkes committed suicide. "In short, even if the Institution's suicide screening and prevention measures contained the shortcomings that [Barkes's decedents] allege, no precedent on the books in November 2004 would have made clear to [the Commissioner and Warden] that they were overseeing a system that violated the Constitution." Accordingly, the Court held that the defendants were entitled to qualified immunity and once again declined to take the opportunity to "clearly establish" what the law is going forward.

Finally (for now), the Supremes dealt a unanimous blow (except for one footnote) to underwater homeowners in Bank of America v. Caulkett (13-1421), concluding that stare decisis compelled it to ignore the plain meaning of the Bankruptcy Code and instead hold that a debtor in a Chapter 7 bankruptcy proceeding may not void a junior mortgage lien when the debt owed on a senior mortgage lien exceeds the value of the home.

Caulkett had two mortgage liens on his house and Bank of America held the junior of the two liens. The amount owed on Caulkett's senior mortgage lien was greater than his home's market value, making Bank of America's junior lien completely "underwater." When Caulkett filed for bankruptcy, he moved to "strip off," or void, the junior lien under Section 506(d) of the Bankruptcy Code, which allows a debtor to void a lien on his property "[t]o the extent that [the] lien secures a claim against the debtor that is not an allowed secured claim." The District Court granted the motion and the Eleventh Circuit affirmed, but the Supreme Court reversed, 9-0. The parties agreed that the Bank's claim was "allowed," but disputed whether its claim was "secured" within the meaning of Section 506(d). Writing for the Court, Justice Thomas acknowledged that the Bankruptcy Code itself suggested that the Bank's claim was not secured because "the value of [the Bank's] interest . . . is less than the amount of such allowed claim." In other words, because the entire market value of the property was swallowed by the senior lien, there was nothing left to secure the Bank's junior lien. However, "[u]nfortunately for [Caulkett], this Court has already adopted a construction of the term ‘secured claim' in 506(d) that forecloses this textual analysis." In Dewsnup v. Timm (1992), the Court defined the term "secured claim" in Section 506(d) to mean a claim supported by a security interest in property, regardless of whether the value of that property would be sufficient to cover the claim. For better or worse, that precedent foreclosed Caulkett's argument. "Because the Bank's claims here are both secured by liens and allowed under §502, they cannot be voided under the definition given to the term ‘allowed secured claim' by Dewsnup."

Now, about that footnote. Justice Thomas observed that Caulkett had not asked the Court to overrule Dewsnup, instead requesting that the decision be limited only to partially—as opposed to wholly—underwater loans, a distinction the court found unpersuasive. In the footnote, he noted that Dewsnup has, "[f]rom its inception . . . been the target of criticism." Six Justices joined that footnote—all but Kennedy, Breyer, and Sotomayor—suggesting that perhaps another case squarely challenging Dewsnup might lead the Court to reverse that precedent and instead apply the apparent plain meaning of Section 506(d), allowing a debtor to strip off a lien to the extent the value of the subject property is less than the amount of a creditor's claim. But until that hypothetical future case, many homeowners in Caulkett's position will remain underwater in more ways than one.

That's about enough for one missive. We'll return in short order with summaries of the week's other decisions—EEOC v. Abercrombie & Fitch (14-86) on religious freedom in the workplace and Mellouli v. Lynch (13-1064), on whether a noncitizen may be removed for possessing drug paraphernalia if the paraphernalia is not related to a substance listed in section 802 of the Controlled Substances Act.

Until then!