Fourth Circuit Opinions






Divided Fourth Circuit Upholds Maryland’s Assault Weapon Ban

Analyzing Maryland’s Firearm Safety Act of 2013 under the U.S. Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), the Fourth Circuit sitting en banc ruled, 10-4, that the Act was constitutionally sound, and that the Second Amendment did not apply to the weapons banned under the Act. The Act made it illegal to transport, possess, sell, or receive an “assault weapon,” which included “assault long guns” like the type used in the Sandy Hook shooting, as well as “copycat weapons” that possessed certain characteristics typical of the banned weapons. The Act also similarly prohibited detachable magazines with over 10 rounds of capacity. The plaintiffs, an assortment of state residents and firearms dealers and associations, filed suit to enjoin the Act, arguing that it violated the Second and Fourteenth Amendments. The district court granted summary judgment to Maryland, applying intermediate scrutiny. A panel of the Fourth Circuit reversed, requiring that the district court apply strict scrutiny instead. The en banc Court vacated the panel’s decision, and, in an opinion by Judge King, affirmed the district court’s ruling. Importantly, the majority held that the banned weapons and magazines were akin to military-style weapons (like M-16 rifles) that were not entitled to any Second Amendment protection under Heller, finding that the differences were “slight” at most. The panel further reasoned that even if such weapons did enjoy Second Amendment protection, only intermediate scrutiny would apply, and rejected the plaintiffs’ Fourteenth Amendment claims. Judge Wilkinson, joined by Judge Wynn, concurred, arguing that the contours of the Second Amendment was better left in the hands of “democratic actors” instead of the courts. Judge Diaz filed a separate concurrence, arguing that the majority should have simply assumed that the banned weapons were protected by the Second Amendment, and affirmed the Act under the intermediate scrutiny standard. Judge Traxler, joined by Judges Niemeyer, Shedd, and Agee, dissented, arguing that the majority “has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms,” that the banned arms were protected under the Second Amendment and the Act should have been reviewed under strict scrutiny.  Judge Traxler further filed a solo dissent to the majority’s holding on the equal protection argument, but concurring in the vagueness ruling. The fractured decision lead to a Supreme Court appeal, and perhaps be one of the first cases for a newly-installed Justice Gorsuch to weigh in on. A link to the decision in Kolbe v. Hogan, issued on February 21, 2017, is here.



February 2, 2015-- In Estate of Diane Z. Kirsch v. Lee Graham Shopping Center Limited Partnership, the U.S. Court of Appeals for the Fourth Circuit unanimously held, in a published opinion by Judge Shedd, that the plain terms of a limited partnership agreement prevented an estate from transferring its interest in the partnership to a non-family member. The Court’s opinion includes an interesting discussion of the probate exception to federal court jurisdiction, which is most likely what led to the opinion being published. Specifically, the Fourth Circuit held that the exception is “narrow” in application and only pertains to the following acts: probating a will, annulling a will, administering an estate, or disposing property in custody of a state probate court. A case that “merely impacts a state court’s performance of one of these tasks” is not subject to the exception. A link to the opinion is here.




On February 21, 2014, the Fourth Circuit clarified the standard a bankruptcy creditor must meet in proving that it received monies from a debtor in good faith, and thus does not have to return the money to the trustee. The trustee over the long-running Taneja bankruptcy sought to claw back allegedly fraudulent payments that one of Taneja’s businesses made to a bank. The bank asserted that it received the payments in good faith under 11 U.S.C. sec. 548(c). The Fourth Circuit held in In re Vijay K. Taneja, that the good-faith standard set forth in In re Nieves, 648 F.3d 232 (4th Cir. 2011), applied as the standard for any good faith defense raised under 548(c). In such cases, the court must consider “whether the transferee actually was aware or should have been aware, at the time of the transfers and in accordance with routine business practices, that the transferor-debtor intended to ‘hinder, delay, or defraud any entity to which the debtor was or became . . . indebted.’” Using that standard, the Fourth Circuit held that the bank’s evidence sufficed to prove the affirmative defense. Judge Winn lodged a dissent, arguing that the bank had not met its burden of proof. A link to the published decision is here.

On February 21, 2014, the Fourth Circuit turned away a challenge by a private landowner to a taking of its property for an infrastructure project. Under Virginia Code secs. 33.1-119 and 120, the City of Chesapeake took immediate title to land owned and operated by a car wash company, depositing $2.15 million in proffered compensation with the court to be resolved in subsequent condemnation proceedings. The land was to be used for a road-widening project in conjunction with the City, VDOT, and the U.S. Department of Transportation. The car wash sued, arguing, inter alia, that the taking violated the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. secs. 4601-4655 (“URA”), which requires federal agencies to follow certain policies in taking land. The Fourth Circuit, in Clear Sky Car Wash, LLC v. City of Chesapeake, ruled that the URA does not create any individually enforceable rights, nor any rights that could be enforced by reference through 42 U.S.C. sec. 1983. The Court also ruled that the car wash could not compel the Department of Transportation to enforce the URA through the Administrative Procedure Act. A link to the unanimous, published decision is here.


On January 31, 2014, the U.S. Court of Appeals for the Fourth Circuit ruled that a debt collection communication to a debtor stating that the creditor would assume a debt to be valid unless disputed in writing within thirty days was not compliant with the Fair Debt Collection Practices Act, specifically 15 U.S.C. sec. 1692g(a)(3) of that Act, which by its terms allows for the debtor to dispute a debt orally as well as in writing. The published per curiam opinion of the Court in Clark v. Absolute Collection Service, Inc. is here.


A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit today affirmed the district court’s judgment that federal law exempts Fannie Mae and Freddie Mac from state and local taxes imposed on the transfer of real property. The Court also held that a federal exemption from state taxation is subject only to rational basis review, not strict scrutiny as the state governments argued. The decision in Montgomery County, Maryland v. Federal National Mortgage Association is here.



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