U.S. Fourth Circuit - FindLaw

U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog


There must have been some degree of pearl-clutching from gay marriage opponents on Tuesday, as the Fourth Circuit denied South Carolina's request to stay last week's federal ruling against the state's gay marriage ban.

When U.S. District Court Judge Richard Gergel had struck down the Palmetto State's prohibition on gay marriage, he placed on automatic stay on the ruling that's set to expire November 20. For those keeping score at home, that's tomorrow, and it appears that the Fourth Circuit isn't going to step in before gay marriages begin.

But is the Fourth Circuit the last word on South Carolina's same-sex marriage ban?

This was already one of the most ridiculous criminal cases to ever come out of Virginia, and now, it has spawned an equally ridiculous civil lawsuit.

Regular readers might recall the case from earlier this year, where Virginia police obtained a warrant to bring a teen to a hospital and photographed his erect penis, using an injection to induce the erection if necessary. The ridiculous warrant was part of an equally ridiculous prosecution of a 17-year-old kid who sent a picture of his penis to his 15-year-old girlfriend. Both send nude pics, but only he was charged.

So that makes how many now? Notwithstanding what the Sixth Circuit thinks, Judge Richard Gergel of the U.S. District Court for the District of South Carolina has come to the now-unsurprising conclusion that the state's ban on same-sex marriage is unconstitutional.

In a referendum approved by 78 percent of voters, South Carolina amended its constitution in 2006 to prevent the state from recognizing any marriage other than that between one man and one woman. Gergel's order makes his the 52nd court to strike same-sex marriage bans since U.S. v. Windsor, according to Freedom to Marry.

What's an international custody dispute doing at the Fourth Circuit? Quite a lot. Mark and Daniela Smedley got married in Germany in 2000. Mark was a member of the U.S. Army. They had two kids, in 2000 and 2005, and continued to live in Germany until Mark got transferred to North Carolina. Daniela and the kids came along.

"At this point, the parties' stories diverge," said the court, putting it mildly. If you believe Daniela, she was already unhappy when they lived in Germany. She got homesick for Germany and told Mark she was going back to live there permanently, and she was taking the kids. He said okey-dokey-sure. They agreed she would take a month to reconsider, so she bought round-trip tickets; if she decided to stay, Mark would try to move there, too.

In 2009, U.S. citizen Gulet Mohamed went to the Middle East to study Arabic. He visited to several countries, including Yemen and Somalia. Then he moved to Kuwait. In 2010, he tried to renew his visitor's visa but was instead handcuffed, blindfolded, and held in detention for a week while being tortured.

And you thought renewing your driver's license was hard.

Kuwaiti officials tried to deport him, but it turned out that Mohamed's name was on a No-Fly List, so he can't return to the United States. While being held incommunicado in Kuwait, he was interrogated by FBI agents, who threatened more interrogation and criminal charges if he didn't speak to them.

The Fourth Circuit Court of Appeals heard oral arguments in a case about a controversial North Carolina abortion law yesterday. The Woman's Right to Know Act requires a doctor providing an abortion to give the patient an ultrasound at least four hours before an abortion and requires the doctor to show the woman the fetus on the ultrasound display and describe the fetus. The woman doesn't have to watch or listen, but the doctor is required to go through with the charade even if she doesn't.

The Virginia Supreme Court heard oral arguments Monday in a new type of Yelp case. By now, we're familiar with the defamation and the SLAPPs and the non-disparagement agreements and the not-technically-extortion-but-sounds-like-it.

Well, Yelp v. Hadeed Carpet Cleaning is different. Hadeed Carpet Cleaning wanted to sue the authors of critical reviews posted about it on Yelp. This in itself isn't new; businesses have been trying for years to use lawsuits to get critical reviews off Yelp, though it usually doesn't work because the reviews are not only opinions, but because lawsuits can't be used in states that have anti-SLAPP laws.

Being a sex offender is probably a crime of moral turpitude, right? What about the acting of failing to register as a sex offender? The U.S. government thought so; that's why it initiated deportation proceedings against Khalid Mohamed, a citizen of Sudan. Mohamed was convicted of sexual battery in 2010, and in 2011, he failed to register as a sex offender. Finding these to be a conviction for "two or more crimes involving moral turpitude," the government said he had to go, and the Board of Immigration Appeals agreed.

The Fourth Circuit Court of Appeals wasn't so convinced. It ordered Mohamed released on September 29, and provided the reasoning for its order in an opinion released October 17.

Within days of each other, two federal district courts in North Carolina have ruled on issues related to the state's ban on same-sex marriage. On October 10, Judge Max O. Cogburn Jr. said that, per the Fourth Circuit's opinion in Bostic v. Schaefer, the matter was settled as far as he was concerned. The state law was plainly unconstitutional:

The issue before this court is neither a political issue nor a moral issue. It is a legal issue and it is clear as a matter of what is now settled law in the Fourth Circuit that North Carolina laws prohibiting same sex marriage, refusing to recognize same sex marriages originating elsewhere, and/or threating [sic] to penalize those who would solemnize such marriages, are unconstitutional.

We quipped that the Tenth Circuit's two SCOTUS-bound cases were the most boring you'd hear all year long. Apparently, we were wrong. Meet the case that has twin issues: a "first to file" limit on related qui tam actions, as well as a six-year-statute of limitations that bars claims ... except maybe, when we're in wartime. Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter is not a case you'll want to read before operating heavy machinery.

Fortunately, the final case in the Fourth Circuit's four-pack is Whitfield v. U.S., an attempted bank robbery case that includes a botched indictment, a lady who was frightened to death, and a wee bit of statutory interpretation. The second case, folks, is fascinating.