November 27, 2023
Volume 31, Issue 3
This Report summarizes cases granted review on November 3 and 13, 2023 (Part I).
Part I: Cases Granted Review
National Rifle Association of America v. Vullo, 22-842. The Court will resolve under what circumstances a government regulator’s actions urging regulated entities not to do business with a controversial speaker rise to the level of coercive or threatening conduct in violation of the First Amendment. The National Rifle Association (NRA) sued Maria Vullo, head of a New York agency that enforces state banking and insurance laws, contending that she violated the NRA’s First Amendment rights by coercing financial institutions into cutting ties with the NRA. The NRA alleged that Vullo warned regulated entities that business relationships with the NRA posed a “reputational risk” in the wake of anti-gun advocacy after the Parkland shooting, offered leniency to insurers for unrelated infractions if they dropped the NRA, and investigated and imposed penalties against firms that formerly served the NRA. Vullo moved to dismiss. The district court denied her motion, but the Second Circuit reversed. 49 F.4th 700.
The Second Circuit held that the NRA failed to plead a First Amendment claim. In determining whether a government official violated the First Amendment through coercion or intimidation, courts look to factors including the official’s regulatory or other decision-making authority over the targeted entities, the language of the allegedly threatening statements, and whether the targeted entities reasonably perceived a threat. Under this fact-intensive test, the Second Circuit determined that Vullo’s guidance letters could not reasonably be construed as unconstitutionally threatening or coercive and instead were a legitimate exercise of her prerogative to advocate for the government’s policy positions. It explained that the letters “were written in an even-handed, nonthreatening tone and employed words intended to persuade rather than intimidate.” The Second Circuit also determined that the complaint’s allegations about Vullo’s investigation amounted to a description of “plainly reasonable” and “legitimate enforcement actions.” The court rejected the contention that Vullo privately coerced entities into severing ties with the NRA as part of the investigation, pointing out that consent decrees fining the entities explicitly provided that they could continue to offer services to the NRA. The court also stated that “this age of enhanced corporate social responsibility” justifies regulatory concern about “general backlash” against a customer’s political speech.
The NRA faults the Second Circuit’s decision as “a near-impossible hurdle for plaintiffs challenging powerful regulators’ viewpoint-based attempts to suppress political advocacy.” The NRA argues that the Second Circuit erred by giving inadequate weight to Vullo’s “enormous power over the targeted entities,” the ways in which the letters invoked that regulatory authority, and the entities’ perception of a threat, particularly in light of the investigation that was ongoing when the guidance letters were issued. The NRA also contends that the court failed to assume the truth of its well-pleaded allegations and draw reasonable inferences in its favor. In particular, the NRA argues that the Second Circuit ignored its allegations of backchannel threats at private meetings and the fact that the alleged threats were successful—entities did cut business ties with the NRA. The NRA also maintains that the Second Circuit’s “backlash” reasoning “eviscerates the First Amendment, giving government regulators free rein to selectively target unpopular speakers in the name of ‘tak[ing] action to address key social and environmental issues.’”
Garland v. Cargill, 22-976. At issue is whether a “bump stock” device when attached to a semiautomatic weapon falls within the definition of machinegun as proscribed by the National Firearms Act (NFA). The NFA defines a machinegun as a weapon (or parts designed and intended to convert a weapon) that fires “automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. §5845(b). A “bump stock” is a device that converts a semiautomatic rifle into a weapon capable of firing hundreds of rounds per minute by a single pull of the trigger. It channels the recoil energy from each shot into a continuous back-and-forth cycle in which the trigger repeatedly bumps the shooter’s stationary finger while the shooter maintains forward pressure on the barrel. Between 2008 and 2017, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued classification decisions stating that non-mechanical bump stocks are not machineguns because they did not automatically enable a gun to fire. In 2017, a mass shooting in Las Vegas, which killed 58 people and injured 500 more, was carried out by semiautomatic weapons with bump stocks. Following this shooting, ATF issued a rule in 2018 modifying its definitions of “automatic” and “single function of the trigger” to clarify that bump stocks are machineguns. The rule also directed citizens in possession of these devices to destroy or surrender them at an ATF office to avoid criminal liability. Respondent Michael Cargill turned his bump stocks into an ATF office in March 2019. The same day, Cargill filed suit, alleging that the 2018 rule conflicted with the plain language of the NFA. The district court sided with ATF and concluded that the definition of machinegun encompasses bump stocks because they create a weapon that fires more than one shot automatically. A Fifth Circuit panel affirmed, holding that “bump stocks qualify as machine guns under the best interpretation of the statute.” The Fifth Circuit then granted rehearing en banc and reversed course. 57 F.4th 447.
The 13-judge majority concluded that the statutory definition is ambiguous as to “whether ‘a single function of the trigger’ refers to the firearm’s mechanics or to the shooter’s pulling of the trigger,” and whether “the process of engaging the trigger and maintaining forward pressure on the gun’s forebody produces ‘automatic’ fire.” The majority then ruled that the rule of lenity required the court to resolve the ambiguity in Cargill’s favor. An eight-judge plurality, however, would have held that the statutory definition unambiguously excluded bump stocks. It concluded that the term “single function of the trigger” referred to a single mechanical action of the trigger, not the trigger finger, and that a bump stock does not fire “more than one shot . . . each time the trigger ‘acts.’” The plurality further concluded that a bump stock did not fire more than one shot “automatically” because the shooter must maintain forward pressure on the barrel after the shooter pulls the trigger.
The Federal Government argues that application of the rule of lenity is not warranted because traditional tools of statutory interpretation show that bump stocks are machineguns under the best reading of the statute. First, prior case law and the legislative record preceding the adoption of the statutory definition show that a “single function of the trigger” encompasses a single pull of the trigger. And bump stocks enable the shooter to initiate a continuous firing cycle in response to a single pull of the trigger or an analogous motion. Second, bump stocks fire more than one shot “automatically” because they are a self-acting or self-regulating mechanism—a definition that is nearly identical to contemporaneous dictionaries. As to the plurality’s findings, the Government argues that the mechanical functioning lens for the single function portion of the definition is mistaken. The immediately adjacent clause in the statutory definition refers to “manual reloading,” which the Government contends is a textual reference to the person operating the weapon. Lastly, the Government argues that the plurality’s conclusion regarding the term “automatically” is also mistaken. Although bump stocks require continued pressure on the barrel, the Government insists that is a distinction without a difference because machineguns likewise require continued pressure on the trigger to rapid fire. Allowing the plurality’s conclusion to stand, the Government says, would lead to absurd results and permit gun manufacturers to circumvent Congress’s ban on machineguns by simply modifying a weapon to require human input.
Coinbase, Inc. v. Suski, 23-3. The question presented is: When an arbitration agreement delegates to an arbitrator the threshold decision of whether a dispute is within the scope of an arbitration clause, should an arbitrator or court decide whether this agreement is narrowed by a later contract that is silent as to arbitration and delegation? The users of an online cryptocurrency trading service sued, contending that a sweepstakes violated California law. The service, Coinbase, moved to compel arbitration based on arbitration and delegation clauses in the users’ account agreement. Coinbase argued that any question about the appropriate forum for the dispute was subject to arbitration. In response, the users asserted that Coinbase’s sweepstakes entry rules superseded the clauses in the account agreement. Those rules selected courts in California as the forum for all disputes over the sweepstakes, including the threshold question of who decides the scope of the arbitration clause. The district court decided that arbitrability was a question for the courts, addressed the issue itself, and concluded that the users’ claims belonged in court. The Ninth Circuit affirmed. 55 F.4th 1227.
The Ninth Circuit held that the issue of whether the forum-selection clause in the sweepstakes rules superseded the arbitration clause in the account agreement was not delegated to the arbitrator but was for the courts to decide. The court explained that parties may “clearly and unmistakably” delegate disputes concerning the scope or enforceability of an arbitration provision to arbitrators, but not issues of contract formation. The court concluded that the issue here was one of contract formation, not scope: “The ‘scope’ of an arbitration provision concerns how widely it applies, not whether it has been superseded by a subsequent agreement.” The court then decided the merits in the users’ favor, affirming the dismissal of Coinbase’s motion to compel arbitration.
Petitioner Coinbase argues that the issue of any superseding effect of the sweepstakes’ rules concerns the enforceability, revocability, scope, validity, or existence of the arbitration clause and therefore falls squarely within the account agreement’s delegation clause. Coinbase contends that the forum-selection clause in the sweepstakes rules did not displace the delegation clause because nothing in the forum-selection clause specifically revoked the delegation clause. Coinbase also argues that the Ninth Circuit’s conclusion that issues of contract formation could not be delegated to the arbitrator is contrary to Supreme Court precedent permitting parties to delegate any such gateway questions to an arbitrator. Lastly, Coinbase challenges the Ninth Circuit’s distinction between the scope and existence of a contract as artificial and illogical.
Diaz v. United States, 23-14. Federal Rule of Evidence 704(b) prohibits expert witnesses from opining on whether a defendant did or did not have a mental state that comprises an element of the offense charged. The question presented is whether Rule 704(b) permits a government expert to testify that most couriers know they are carrying drugs and that most drug-trafficking organizations (DTOs) do not entrust large amounts of drugs to unknowing couriers where an element of the offense requires the government to prove the defendant knowingly carried illegal drugs.
Border patrol agents found 54.5 pounds of methamphetamine valued at over $350,000 hidden inside the door panel of the car petitioner Delilah Diaz was driving at the Mexico-California entry point. Diaz claimed she was driving her boyfriend’s car and that she did not know drugs were in the car. Diaz was charged with one count of importation of methamphetamine, which required the government to prove Diaz knew she was transporting drugs. At trial, the government’s expert witness testified that most couriers are aware they are transporting drugs and that DTOs would not use unknowing couriers as it would put the DTO at risk of not being able to deliver product and thus not getting paid. The jury found Diaz guilty. On direct appeal, she argued that the district court erroneously permitted the expert testimony in violation of Rule 704(b). The Ninth Circuit rejected her argument, reasoning that the expert’s testimony did not impermissibly provide an explicit opinion on her state of mind. 2023 WL 314309.
Diaz argues that the Ninth Circuit’s holding is incorrect for three reasons. First, it contravenes the Rule’s plain text and impermissibly adds the word “expressly” to its prohibition. Second, it is unduly formalistic and permits prosecutors to use magic words to overcome its prohibition. Third, it lightens the government’s burden of proving a defendant’s mental state by permitting substitute generalizations for specific evidence and rebuttable presumptions of mens rea in contravention of the Due Process Clause. The United States responds that “numerous circuits recognize that if ‘it is made clear, either by the court expressly or in the nature of the examination, that the opinion is based on the expert’s knowledge of common criminal practices, and not on some special knowledge of the defendant’s mental processes,’ Rule 704(b) is satisfied.” Consistent with that understanding, the testifying expert here “did not ‘state an opinion,’ Fed. R. Evid. 704(b), that petitioner herself had the requisite mens rea to be found guilty. . . . Instead, [he] provided expert testimony drawn from his experience investigating other drug dealers[.]”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel, (202) 326-6010
- Celeste Kinney, Supreme Court Fellow
- Kimber Rodgers, Supreme Court Fellow
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