Amicus Curiae Brief — Steven Baxter, Petitioner v. United States

No. 20-5133

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------STEVEN BAXTER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

VIRGIN ISLANDS BAR ASSOCIATION

IN SUPPORT OF PETITION FOR CERTIORARI

---------------------------------♦--------------------------------DWYER ARCE

Counsel of Record

KUTAK ROCK LLP

The Omaha Building

1650 Farnam Street

Omaha, Nebraska 68102

(402) 346-6000

Dwyer.Arce@KutakRock.com

Counsel for Amicus Curiae

Virgin Islands Bar Association

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Should the Insular Cases be further extended to

deny Fourth Amendment protections to Americans

traveling to and from U.S. territories?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF CONTENTS ......................................

ii

TABLE OF AUTHORITIES .................................

iii

I.

INTERESTS OF AMICUS CURIAE .........

1

II.

SUMMARY OF THE ARGUMENT ...........

3

III.

ARGUMENT ..............................................

4

A. The court below further extended the

Insular Cases contrary to Aurelius .....

4

B. There is no basis to apply the Fourth

Amendment differently in the Virgin

Islands than the mainland ..................

6

C. The Insular Cases are inconsistent

with the Fourteenth Amendment incorporation doctrine ............................

8

IV.

CONCLUSION .......................................... 11

iii

TABLE OF AUTHORITIES

Page

CASES

Aguilar v. Texas, 378 U.S. 108 (1964) ...........................9

Armstrong v. United States, 182 U.S. 243 (1901) .........4

Balzac v. Porto Rico, 258 U.S. 298 (1922) ................. 4, 7

Benton v. Maryland, 395 U.S. 784 (1969) ..................... 9

Boumediene v. Bush, 553 U.S. 723 (2008) ....................3

Cantwell v. Connecticut, 310 U.S. 296 (1940)...............9

De Lima v. Bidwell, 182 U.S. 1 (1901) ..........................4

DeJonge v. Oregon, 299 U.S. 353 (1937) .......................9

Dooley v. United States, 182 U.S. 222 (1901) ...............4

Dorr v. United States, 195 U.S. 138 (1904) ...................4

Downes v. Bidwell, 182 U.S. 244 (1901) .......................4

Duncan v. Louisiana, 391 U.S. 145 (1968) ...................9

Edwards v. South Carolina, 372 U.S. 229 (1963) ........9

Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1

(1947) .........................................................................9

Examining Bd. of Engineers v. Flores de Otero,

426 U.S. 572 (1976) ...................................................4

Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius

Inv., LLC, 140 S. Ct. 1649 (2020) ..............................4

Gitlow v. New York, 268 U.S. 652 (1925) ......................9

Hawaii v. Mankichi, 190 U.S. 197 (1903) ............... 4, 10

Mapp v. Ohio, 367 U.S. 643 (1961) ...............................9

McDonald v. City of Chicago, 561 U.S. 742 (2010) .......10

iv

TABLE OF AUTHORITIES—Continued

Page

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) ...............6

Near v. Minnesota, 283 U.S. 697 (1931) .......................9

Ocampo v. United States, 234 U.S. 91 (1914) ...............4

Popular Democratic Party v. Puerto Rico, 24

F. Supp. 2d 184 (D.P.R. 1998)....................................7

Reid v. Covert, 354 U.S. 1 (1957) .............................. 4, 5

Timbs v. Indiana, 139 S. Ct. 682 (2019) ................. 9, 10

Torres v. Puerto Rico, 442 U.S. 465 (1979) ........... 5, 7, 8

United States v. Baxter, 951 F.3d 128 (3d Cir.

2020) .......................................................... 1, 2, 5, 6, 7

United States v. Hyde, 37 F.3d 116 (3d Cir. 1994) .... 2, 5, 6

United States v. Mora-Santana, 99 Fed. Appx.

397 (3d Cir. 2004) ......................................................2

United States v. Tiede, 86 F.R.D. 227 (U.S. Ct.

Berlin 1979) .............................................................10

United States v. Verdugo-Urquidez, 494 U.S. 259

(1990) .........................................................................4

CONSTITUTIONAL PROVISIONS

U.S. Const. art. IV cl. 2 .................................................8

U.S. Const. amend. II ..................................................10

U.S. Const. amend. IV ................................... 2, 6, 7, 8, 9

U.S. Const. amend. V ....................................................9

U.S. Const. amend. VI ............................................. 9, 10

v

TABLE OF AUTHORITIES—Continued

Page

U.S. Const. amend. VIII ..............................................10

U.S. Const. amend. XIV ...................................... 8, 9, 10

STATUTES AND RULES

48 U.S.C. § 1541(a) ........................................................7

48 U.S.C. § 1561 ............................................................6

Supreme Court Rule 37.2(a).........................................1

Supreme Court Rule 37.6 .............................................1

1

I.

INTERESTS OF AMICUS CURIAE1

The Virgin Islands Bar Association is an integrated bar association with hundreds of members

practicing law in the “unincorporated” territory of the

Virgin Islands of the United States. The Bar Association operates with the mission of advancing the administration of justice, enhancing access to justice, and

advocating public policy positions for the benefit of

the judicial system, its members, and the people of the

Virgin Islands.

In fulfillment of its duties, the Bar Association

submits this brief as amicus curiae urging the Court to

grant the petition for a writ of certiorari to the United

States Court of Appeals for the Third Circuit and reverse the decision in United States v. Baxter, 951 F.3d

128 (3d Cir. 2020).

The Bar Association’s duty to intervene in this

matter as an advocate for the people of the Virgin Islands is demonstrated by the Third Circuit’s heavy reliance on the Insular Cases in holding that travel from

1

Pursuant to Supreme Court Rule 37.6, amicus curiae and

its counsel state that none of the parties to this case nor their

counsel authored this brief in whole or in part, and that no counsel or party made a monetary contribution intended to fund the

preparation or submission of this brief. The counsel of record for

all parties received notice of the Bar Association’s intention to file

an amicus curiae brief on September 22, 2020, more than 10 days

prior to the due date for the amicus curiae brief, in compliance

with Supreme Court Rule 37.2(a). The parties consent to the filing

of this brief. This brief is not intended to reflect the views of any

individual member of the Bar Association or the Supreme Court

of the Virgin Islands.

2

the mainland United States to the Virgin Islands of the

United States is the same as crossing an international

border. Although not explicit in the opinion below, the

limitation on the application of the Fourth Amendment

in the Virgin Islands originates from the Third Circuit’s extension of the Insular Cases in United States v.

Hyde, 37 F.3d 116 (3d Cir. 1994).

In Hyde, the Third Circuit relied on the Insular

Cases and the status of the Virgin Islands as “an unincorporated territory of the United States.” 37 F.3d at

121. In the Third Circuit’s view, the Insular Cases support a categorical rule that Americans traveling between the Virgin Islands and the mainland United

States have “reasonable expectations of individual

privacy” that are not “materially greater than the reasonable privacy expectations of travelers at an international border.” Hyde, 37 F.3d at 122; see also United

States v. Mora-Santana, 99 Fed. Appx. 397, 399 n.3 (3d

Cir. 2004) (“There is no question under this Court’s

precedent that the territorial border between the U.S.

Virgin Islands and the United States is treated the

same as an international border for the purposes of

Fourth Amendment scrutiny.”).

The Third Circuit’s decisions in Hyde and Baxter

represent an expansion of the Insular Cases far beyond

what this Court’s precedent requires or permits. Allowing these decisions to stand adds one more constitutional right to the growing list of rights Americans in

U.S. territories are denied.

3

The Bar Association urges the Court to grant the

petition for a writ of certiorari and reaffirm that an

American’s freedom from unreasonable search and seizure cannot be “switch[ed] . . . on or off at will” by the

arbitrary decisions of federal authorities. Boumediene

v. Bush, 553 U.S. 723, 727 (2008).

II.

SUMMARY OF THE ARGUMENT

In the Insular Cases, those living in U.S. territories were promised at least those constitutional rights

considered “fundamental.” But that promise was broken. Instead, federal courts have routinely relied on

the Insular Cases to justify the refusal to recognize

constitutional rights considered fundamental in every

other context.

Worse still, the territorial incorporation doctrine

enshrined into constitutional law by the Court through

the Insular Cases has no basis in the text or history of

the Constitution. It is a constitutional doctrine fashioned out of whole cloth by the same Court that decided

Plessy v. Ferguson. It was meant to serve the cause of

political expedience and secure a permanent secondclass citizenship to the “alien races” of the new territories of the Philippines, Puerto Rico, and Guam.

The Virgin Islands Bar Association, on behalf of

its members and the more than 100,000 members of

“alien races” it serves in the “unincorporated” territory

of the Virgin Islands of the United States, urges the

Court to grant certiorari and prevent the further

4

extension of the Insular Cases to deny yet another constitutional right to Americans in U.S. territories.

III.

ARGUMENT

A. The court below further extended the Insular

Cases contrary to Aurelius.

Last term, the Court held “the Constitution’s Appointments Clause applies to the appointment of officers of the United States with powers and duties in and

in relation to Puerto Rico.” Fin. Oversight & Mgmt. Bd.

for P.R. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1665

(2020). The Court noted that “[g]iven this conclusion,

we need not consider the request by some of the parties

that we overrule the much-criticized ‘Insular Cases’

and their progeny.” Id.2 And because “[t]hose cases did

not reach this issue, . . . whatever their continued validity we will not extend them in these cases.” Id.

In reaching this conclusion, the Court relied on an

earlier decision, where a plurality of the Court determined “that neither [the Insular Cases] nor their reasoning should be given any further expansion.” Reid v.

2

In Examining Bd. of Engineers v. Flores de Otero, 426 U.S.

572 (1976), the Court identified the Insular Cases to include De

Lima v. Bidwell, 182 U.S. 1 (1901), Dooley v. United States, 182

U.S. 222 (1901), Armstrong v. United States, 182 U.S. 243 (1901),

and Downes v. Bidwell, 182 U.S. 244 (1901). In United States v.

Verdugo-Urquidez, 494 U.S. 259, 268 (1990), the Court identified

additional Insular Cases, including Balzac v. Porto Rico, 258 U.S.

298 (1922), Ocampo v. United States, 234 U.S. 91 (1914), Dorr v.

United States, 195 U.S. 138 (1904), and Hawaii v. Mankichi, 190

U.S. 197 (1903).

5

Covert, 354 U.S. 1, 14 (1957) (plurality opinion). The

Reid plurality criticized “[t]he concept that the Bill of

Rights and other constitutional protections against arbitrary government are inoperative when they become

inconvenient or when expediency dictates otherwise,”

and warned that this “very dangerous doctrine . . . if

allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government.” 354 U.S. at 14 (plurality opinion); accord

Torres v. Puerto Rico, 442 U.S. 465, 470 (1979) (“[T]he

limitation on the application of the Constitution in unincorporated territories is based in part on the need to

preserve Congress’ ability to govern such possessions.”).

Like the Appointments Clause, the Insular Cases

“did not reach [the] issue” presented to the Third Circuit: Whether “the Fourth Amendment permits routine warrantless customs searches at the customs

border between the mainland United States and the

Virgin Islands.” Baxter, 951 F.3d at 134.

Yet, in resolving this issue, the Third Circuit

looked to the Insular Cases. As the court below

acknowledged, “[t]he border between the United States

and the Virgin Islands is neither an international

boundary nor its functional equivalent.” Baxter, 951

F.3d at 133. Nonetheless, the court determined the

Insular Cases dictate that Congress may treat it as an

international border since the “current legal relationship between the Virgin Islands and the United States

is not materially different from that of Puerto Rico and

the Panama Canal Zone at the time [the Insular Cases]

were decided.” Hyde, 37 F.3d at 121.

6

It may be true that “since the acquisition of the

Virgin Islands, Congress has consistently . . . authorized customs officials to search vessels and goods passing between the Virgin Islands and the rest of the

country.” Hyde, 37 F.3d at 121. But “[u]nlawful acts,

performed long enough and with sufficient vigor, are

never enough to amend the law. To hold otherwise

would be to elevate the most brazen and longstanding

injustices over the law, both rewarding wrong and failing those in the right.” McGirt v. Oklahoma, 140 S. Ct.

2452, 2482 (2020).

The Court should grant the petition for a writ of

certiorari to prevent this further extension of the

Insular Cases to deny Americans in U.S. territories yet

another right guaranteed to every other American.

B. There is no basis to apply the Fourth Amendment differently in the Virgin Islands than

the mainland.

The court below reasoned that “Hyde . . . observ[ed] that the application of the border-search exception at the customs border is consistent with the

protections of the Fourth Amendment, which apply

within the territory of the Virgin Islands.” Baxter, 951

F.3d at 134 (citing Revised Organic Act of 1954, 48

U.S.C. § 1561) (emphasis in original). The Court must

reject this attempt to distinguish the operation of the

Fourth Amendment in the Virgin Islands versus the

mainland United States.

7

As recognized by statute, “[t]he Virgin Islands . . .

[is] an unincorporated territory of the United States of

America.” 48 U.S.C. § 1541(a). Like the Virgin Islands,

“Puerto Rico continues to be an unincorporated territory of the United States.” Popular Democratic Party v.

Puerto Rico, 24 F. Supp. 2d 184, 193 (D.P.R. 1998) (citing Balzac v. Porto Rico, 258 U.S. 298 (1922)).

Despite this “unincorporated” status, the Court

unequivocally “conclude[d] that the constitutional requirements of the Fourth Amendment apply to [Puerto

Rico]” directly, even without Congress explicitly extending it via statute. Torres, 442 U.S. at 471. There is

no reason the Fourth Amendment would not also apply

of its own force to the similarly “unincorporated” territory of the Virgin Islands.

So while the court below observed “the protections

of the Fourth Amendment . . . apply within the territory of the Virgin Islands,” Baxter, 951 F.3d at 134

(citing 48 U.S.C. § 1561) (emphasis in original), this is

a distinction without a difference. Just as the Fourth

Amendment “appl[ies] within the territory of the Virgin Islands,” it also applies within the territory of

each of the 50 states and the District of Columbia. But

this does not subject interstate travelers to warrantless searches upon crossing state lines. The result

should be the same with respect to those travelers going to or coming from one of the states to the Virgin

Islands—the Fourth Amendment applies equally

within both.

8

The lack of contiguity between the mainland

United States and the Virgin Islands makes no difference. A territory “is not unique because it is an island

. . . neither Alaska nor Hawaii are contiguous to the

continental body of the United States.” Torres, 442 U.S.

at 474.

C. The Insular Cases are inconsistent with the

Fourteenth Amendment incorporation doctrine.

As this Court has recognized, substantial changes

in jurisprudence have undermined the entire framework on which the Insular Cases are built. At the very

least, this renders the Third Circuit’s extension of the

Insular Cases to the Fourth Amendment unwarranted

and contrary to this Court’s precedent.

The main consequence of the Insular Cases is that

Americans living in “unincorporated” territories don’t

enjoy the same constitutional rights as Americans in

the states until the territory is “incorporated” into the

United States. This distinction has no basis in the text

of the Constitution. See Const. art. IV cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or

other Property belonging to the United States.”). And

to the extent the Insular Cases were in any way supported by this Court’s jurisprudence in the early 1900s,

that support is gone now that the Bill of Rights have

been extended to the states through the Fourteenth

Amendment.

9

“When ratified in 1791, the Bill of Rights applied

only to the Federal Government.” Timbs v. Indiana,

139 S. Ct. 682, 687 (2019). And when the Insular Cases

were decided in the early 1900s, this Court had yet to

hold that the Bill of Rights restricted the actions of

state governments by virtue of the Fourteenth Amendment incorporation doctrine. The Bill of Rights wasn’t

applied to state governments until decades after the

first of the Insular Cases, with the Court subjecting

state governments to the requirements of the First

Amendment for the first time in 1925. Gitlow v. New

York, 268 U.S. 652 (1925) (incorporating right to free

speech); see also Near v. Minnesota, 283 U.S. 697 (1931)

(freedom of the press); DeJonge v. Oregon, 299 U.S. 353

(1937) (assembly); Cantwell v. Connecticut, 310 U.S.

296 (1940) (free exercise of religion); Everson v. Bd. of

Ed. of Ewing Twp., 330 U.S. 1 (1947) (prohibition

against establishment of religion); Edwards v. South

Carolina, 372 U.S. 229 (1963) (right to petition for redress of grievances).

Since then, “[w]ith only ‘a handful’ of exceptions,

this Court has held that the Fourteenth Amendment’s

Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable

to the States.” Timbs, 139 S. Ct. at 687. This includes

“the Fourth Amendment’s right of privacy” in 1961.

Mapp v. Ohio, 367 U.S. 643, 655 (1961); see also Aguilar

v. Texas, 378 U.S. 108 (1964) (warrant requirement).

Same with the Fifth and Sixth Amendments, Benton v.

Maryland, 395 U.S. 784 (1969) (right against double

jeopardy), Duncan v. Louisiana, 391 U.S. 145 (1968)

10

(right to a jury trial), the Second Amendment in 2010,

McDonald v. City of Chicago, 561 U.S. 742 (2010), and

the Eighth Amendment prohibition on excessive fines.

Timbs, 139 S. Ct. 682.

So when the Insular Cases were decided, it was at

least consistent to hold that Congress was not restricted by the Bill of Rights when acting with the

power of a state government with respect to a territory.

When the Insular Cases were decided, a state government was likewise not restricted by the Bill of Rights.

The Insular Cases even acknowledged this distinction

in Mankichi, noting that “we have also held that the

states, when once admitted as such, may dispense with

grand juries,” when holding a territorial criminal prosecution did not require a grand jury. 190 U.S. at 211.

But this underlying rationale is gone now that the

Bill of Rights has been incorporated against the states

through the Fourteenth Amendment. This was recognized by a federal judge in 1979, where it was noted

that “the holdings in the Insular Cases that trial by

jury in criminal cases was not ‘fundamental’ in American law . . . was thereafter authoritatively voided in

Duncan,” which incorporated the Sixth Amendment

right to a jury trial against the states. United States v.

Tiede, 86 F.R.D. 227 (U.S. Ct. Berlin 1979) (holding

that Germans living in American-occupied post-war

Berlin “charged with criminal offenses [by the United

States] have constitutional rights, including the right

to a trial by jury”).

11

The Court has never revisited this aspect of the

Insular Cases after these fundamental changes in this

Court’s jurisprudence on the Bill of Rights. This petition presents an opportunity for the Court to do so.

IV.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Dated this 9th day of October, 2020.

Respectfully submitted,

DWYER ARCE

Counsel of Record

KUTAK ROCK LLP

The Omaha Building

1650 Farnam Street

Omaha, Nebraska 68102

(402) 346-6000

Dwyer.Arce@KutakRock.com

Counsel for Amicus Curiae

Virgin Islands Bar Association