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March 1, 2023

An interesting (and dubitante) SCOTUS argument in Dubin

I flagged in this post from last November the Supreme Court's cert grant in Dubin v. United States, which concerns the reach of the federal criminal law that adds a mandatory two-year prison term for using another person’s identity in the process of committing another crime.  That statute, 18 U.S.C. § 1028A, is titled "Aggravated identity theft," but the statutory language would seem to cover a whole lot more conduct than what most think of as identify theft.  In fact, the government seem to be claiming that waiter who adds for himself an unauthorized $1 tip when swiping a patron's credit card would be guilty of credit card fraud and an additional two-year mandatory prison term under § 1028A.  

This matter was argued before the Supreme Court yesterday and the lengthy argument had all sorts of interesting elements.  (The transcript, running over 100 pages, is available here; the audio is available here.)  As detailed in the pieces linked below, it seems nearly all the Justices believe there have to be some limiting principles for application of this statute.  But while the Justices seem to generally doubt the government's broad statutory reading, it is unclear what part of the statutory text may provide real limits and on what terms.  Stay tuned:

From Bloomberg Law, "Justices Appear Ready to Limit Breadth of Identity Theft Law"

From the New York Times, "Supreme Court Seems Skeptical of Broad Sweep of Identity Theft Law"

From SCOTUSblog, "Justices lean toward narrow reading of aggravated identity theft"

From Security Boulevard, "Supreme Court: Does BIlling Fraud Violate Federal ID Theft Statutes?"

March 1, 2023 at 05:41 PM | Permalink


This was a lurking issue in the Novak/City of Parma case. Shame on the Court for letting that injustice stand.

Posted by: federalist | Mar 2, 2023 9:47:33 AM

There are significant differences between Dubin and Novak which explain why Dubin is being heard and Novak was denied.

Dubin is an appeal of the criminal judgment. As such, Dubin prevails if the Supreme Court finds that he government's interpretation of the statute is overly broad.

Novak is an appeal from the denial of a 1983 claim. The first part of Novak's claim requires deciding whether the prosecutor's and police department broad interpretation of the underlying statute violated the defendant's free speech rights. But the other part requires deciding that it was clearly established at the time of the investigation and charges that Novak's conduct was outside the scope of the statute or that the Supreme Court should modify the standard for qualified immunity. My hunch is that, if Novak had been convicted on the criminal charges (rather than the charges being dismissed), there would have been some interest in granting certiorari (at the very least there would have been a dissent from the denial). But the recent U.S. Supreme Court decisions on 1983 claims involving First Amendment issues pretty much foreclosed Novak's civil claim for damages. In all the posts that I have seen on Novak, I have yet to see any citation to a particular case which clearly establishes that the charges against him violated the First Amendment.

Simply put, lurking issues can get your criminal conviction set aside. But lurking issues are not enough for a viable 1983 claim given the defense of qualified immunity. I know that some would like to change the law on qualified immunity, but it is pretty clear that there are not four votes on the Supreme Court to even consider changing the law on qualified immunity. Qualified immunity creates a lot of injustices where people who have had their rights violated do not get relief. I am sure that Mr. Tekoh and Mr. Boule from last year also feel that they have suffered an injustice for not being able to get damages from the government for the violations of their rights.

Posted by: tmm | Mar 2, 2023 11:09:38 AM

The law is unsettled in the QI/First Amendment arena, which would have supported a grant of cert. However, these guys never should have gotten qualified immunity in the first place. This was speech, which means presumptively protected, and there were no available exceptions to that protection. All of that is very well-settled law. As is the Supremacy Clause. As is the fair warning caselaw on criminal statutes---how could anyone read those statutes and understand that you couldn't parody a police website. And look how absolutely weak the City of Parma's brief was. They actually said that he didn't have the right to delete or copy a disclaimer--wtf. The ability to delete flows ineluctably from tons of SCOTUS precedent about forced speech. If the cops' case were that strong, why was the brief that bad?

In my view, if the Court is not going to address cases like Novak's, people in the position of Novak get Second Amendment remedies. I think he had every right to resist his armed kidnapping (and that's what it was)--every bit as much as Rosa Parks would have had the right to resist her arrest. And society has no moral authority to say otherwise. The animals that did this to Nowak deserve to spend the rest of their statist thug lives behind bars.

What I suspect is that Novak's behavior wasn't sexy enough for the justices to deign to address the issue.

Posted by: federalist | Mar 2, 2023 4:02:23 PM


Another cert. petition along the same lines. Hmmm. Feels like there should be an 18 USC 242 prosecution of these officials.

Posted by: federalist | Mar 6, 2023 8:45:41 AM

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