Justice Gorsuch Cites Judgments 2d and Torts 2d
Associate Justice Neil M. Gorsuch cites the Restatements of the Law in two recent U.S. Supreme Court opinions.
In Currier v. Virginia, Justice Gorsuch discussed principles of claim preclusion and issue preclusion as set forth in the Restatement Second, Judgments in deciding that a criminal defendant who initially agreed to sever three related charges against him into two separate trials could not subsequently argue, after being acquitted of two of the charges in the first trial, that proceeding with the second trial on the third charge would violate his constitutional rights under the Fifth Amendment’s Double Jeopardy Clause, which applied to the States through the Fourteenth Amendment.
The defendant, who was suspected of stealing a safe containing guns and cash, was charged with burglary, grand larceny, and unlawful possession of a firearm by a convicted felon in violation of Virginia law. In order to avoid prejudicing the jury’s consideration of the burglary and larceny charges by allowing the prosecution to introduce evidence of the defendant’s prior convictions (also for burglary and larceny) to prove the felon-in-possession charge, the defendant and the government entered into an agreement in which the defendant would be tried for burglary and larceny first. After a jury acquitted the defendant of both of those charges in the first trial, the defendant argued that he could no longer be tried on the third charge. The Virginia Court of Appeals disagreed with the defendant, as did the Virginia Supreme Court, which summarily affirmed the jury’s conviction of the defendant on the felon-in-possession charge in the second trial.
Justice Gorsuch, speaking for the majority, also affirmed the conviction. The Court explained that the protections of the Double Jeopardy Clause, which provided that no person could be tried more than once for the same offense, did not apply, because the defendant consented to separate trials of the charges against him, which were originally severed for his benefit and at his behest.
In an opinion joined by Chief Justice John G. Roberts, Justice Clarence Thomas and Justice Samuel A. Alito, Jr., Justice Gorsuch rejected the defendant’s argument that his consent to a second trial did not extend to the relitigation of any issues that the first jury had already resolved in his favor, arguing that principles of claim preclusion applicable in civil cases could not be imported into the criminal law through the Double Jeopardy Clause.
Justice Gorsuch reasoned, in part, that, while Restatement Second of Judgments § 19 generally precluded litigation of a claim that arose out of the “same transaction” or “common nucleus of operative facts” as a different claim that had already been tried, the Double Jeopardy Clause precluded a trial on an offense only if a court had previously heard the same offense, as measured by its statutory elements.
Further, Justice Gorsuch pointed out that, under Restatement Second, Judgments § 28, the doctrine of issue preclusion often did not bar the relitigation of issues when the party against whom preclusion was sought could not, as a matter of law, have obtained review of the judgment in the initial action, and that, in a criminal case, the government could not obtain appellate review of acquittals.
He concluded by explaining that civil preclusion principles and double jeopardy were different doctrines, with different histories, serving different purposes; while historically, claim preclusion and issue preclusion were intended to promote judicial economy by preventing needless litigation, the aim of the Double Jeopardy Clause was to balance vital interests against abusive prosecutorial practices with consideration of the public’s safety.
In a separate criminal action, Carpenter v. United States, the Supreme Court concluded that the government conducted a search under the Fourth Amendment when it accessed historical cell-phone records that provided a comprehensive chronicle of the user’s past movements.
Prosecutors, acting on information provided by an arrestee who confessed to robbing a series of stores along with several other accomplices over a four-month period, applied for court orders under the Stored Communications Act to obtain cell-phone records—in the form of time-stamped cell-site location information—for another suspect who called arrestee or received calls from arrestee around the time of the robberies. Based on the records, which revealed that the other suspect’s cell phone was located near four of the robberies, the suspect was charged with six counts of robbery and six counts of carrying a firearm during a federal crime of violence. After the district court denied the suspect’s motion to suppress the records supplied by his wireless carriers on the ground that they had been obtained without a warrant supported by probable cause, the suspect was convicted and sentenced. The Sixth Circuit affirmed, finding that the suspect lacked a reasonable expectation of privacy in the location information contained in the records obtained by the prosecution, because he had shared that information with the wireless carriers.
Chief Justice Roberts, speaking on behalf of the Court, reversed and remanded, holding that the government’s acquisition of the suspect’s cell-phone records was a search, and that the government generally had to obtain a warrant supported by probable cause before acquiring such records. The Court reasoned that the third-party doctrine, which stemmed in part from the notion that an individual had a reduced expectation of privacy in information knowingly shared with another, could not be mechanically applied to this case, given the unique nature of cell-phone location information. The Court pointed out that, apart from disconnecting the phone from the network, there was no way to avoid leaving behind a trail of location data; thus, in no meaningful sense did a user of a cell phone voluntarily assume the risk of turning over a comprehensive dossier of his or her physical movements.
Justice Gorsuch, in one of four dissenting opinions, expanded on the majority’s conclusion that the doctrine of assumption of risk, which developed in tort law, did not apply in this context. Citing Restatement Second, Torts §§ 496B, 496C(1) and Comment b, which required either an express agreement to accept a risk of harm or a manifestation of willingness to accept the risk in order for the doctrine to apply, Justice Gorsuch argued that knowing about a risk did not mean that one assumed responsibility for it, and that consenting to give a third party access to one’s records was not the same thing as consenting to a search of those records by the government. Justice Gorsuch concluded by suggesting that, instead of looking to the doctrine of assumption of risk under tort law, the suspect could potentially have argued that the records at issue were his, and that his interest in the records rose to the level of a property right that was protected under the common law.
