4th Circuit: Second Amendment; torture; cellphone search; more

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Consumer Protection; sovereign immunity

BOTTOM LINE: Where a man argued that Maryland effectuates a taking because it does not pay interest on unclaimed property that is returned to the property owner, his claims were barred by Eleventh Amendment sovereign immunity. A federal-court order to pay that kind of “accrued monetary liability” for injury suffered before the entry of a federal court decree is barred by the Eleventh Amendment.

CASE: Albert v. Lierman, Case No. 24-1170 (filed Sept. 10, 2025) (Judges Diaz, HARRIS, Berner).

FACTS: Under the Maryland Uniform Disposition of Abandoned Property Act, Maryland assumes temporary custody of various forms of property that are “presumed abandoned” after an owner has not engaged with the property for a period of time. An owner who filed with the state to reclaim their property could, if successful, be repaid both the principal amount and the interest that had accrued while the property was in state custody. Since Maryland amended the Act in 2004, claimants no longer receive the accrued interest.

Steven Albert seeks a declaratory judgment stating that Maryland effects a taking if it does not pay just compensation for the accrued interest, and he asks for an injunction requiring Maryland to pay claimants that full amount. The Comptroller of the State of Maryland argued that Albert lacks standing, that the claims are not ripe and that the claims are barred by Eleventh Amendment sovereign immunity. The district court denied the motion.

LAW: First, this court does not have jurisdiction over the Comptroller’s standing and ripeness challenges unless they fall within the court’s pendent appellate jurisdiction. The “immediately appealable Eleventh Amendment immunity issue asks us to determine whether this suit falls within the parameters of [] Ex Parte Young,” which in turn “require[s] us to determine whether the relief sought was prospective or retrospective[.]”

In contrast, the standing and ripeness considers whether the plaintiffs have a protected property interest in presumed abandoned property upon which Maryland infringed, whether the plaintiffs can allege an injury without having submitted a claim to Maryland’s administrative process and whether the Comptroller has reached a final decision on how it will treat the property. These are not inextricably intertwined issues.

Turning to the merits, in Albert’s view, the self-executing nature of the Takings Clause means that a state necessarily waives its immunity when it takes property and assumes a duty to pay just compensation. But this court squarely rejected that argument in Hutto v. South Carolina Retirement System, 773 F.3d 536 (4th Cir. 2014), and Zito v. North Carolina Coastal Resources Commission, 8 F.4th 281 (4th Cir. 2021). This panel is bound by those holdings.

Albert nevertheless argues that his claim falls within Ex parte Young because he is suffering an ongoing violation of his Fifth Amendment rights and seeks purely prospective relief. Albert has yet to file a claim with Maryland for the return of his property. Instead, compensation for the interest his property accrued while in Maryland’s custody and an injunction requiring the Comptroller to pay that measure of just compensation.

With that relief in hand, Albert says, he will then go to Maryland with a claim for just compensation. And because he will seek compensation from Maryland – for interest already accrued and interest that will accrue post-judgment – on a claim he will file with Maryland in the future, he argues that he is almost by definition seeking “prospective” relief of the kind available under Ex parte Young.

The court disagrees. A federal-court order to pay that kind of “accrued monetary liability” for injury suffered before the entry of a federal court decree is barred by the Eleventh Amendment. This holding agrees with Suever v. Connell, 579 F.3d 1047 (9th Cir. 2009), in which the court held that the Eleventh Amendment barred an injunction requiring California to pay accrued “retroactive interest” on property allegedly “taken” by the state under a statute much like Maryland’s.

It also aligns with cases holding more generally that federal-court claims for “just compensation” for past “takings” are requests for retroactive relief unavailable under the Eleventh Amendment – no matter how the requests are couched. What this means, in plain terms, is that if at the end of this case the district court enters judgment in Albert’s favor, then the court may issue an injunction prohibiting Maryland from retaining such interest in the future.

Affirmed in part, reversed in part and remanded.

Criminal; Second Amendment

BOTTOM LINE: Where a man charged with violating 18 U.S.C. § 922(n) by transporting a firearm across state lines while he was under indictment for a felony challenged the charge on Second Amendment grounds, his challenge failed. This nation’s history and tradition of gun regulation shows that those accused of possessing unlawful weapons can be temporarily disarmed today. And the tradition of categorically disarming potentially dangerous groups separately justifies the charge.

CASE: United States v. Jackson, Case No. 24-4114 (filed Sept. 12, 2025) (Judges DIAZ, Wynn, Thacker).

FACTS: A federal grand jury charged Brandon Glen Jackson with violating 18 U.S.C. § 922(n), a statute that (in relevant part) makes it “unlawful for any person who is under indictment for a [felony] to ship or transport in interstate or foreign commerce any firearm or ammunition.” The district court denied Jackson’s motion to dismiss his federal indictment as unconstitutional. Jackson then conditionally pleaded guilty.

LAW: The government argues that Jackson never gets past Bruen step one. It argues that Jackson’s offense—transporting a gun across state lines—falls “outside of what the plain text of the Second Amendment protects.” The court declines.

Jackson placed a handgun in a car and then drove across state lines. It’s that conduct that the Second Amendment’s text must protect at Bruen step one. By traveling with his gun, Jackson “kept” it in the constitutional sense: he “retain[ed]” it in his “custody.” So the Second Amendment’s plain text covers his conduct.

The government says that felony indictees had few rights at the founding, since they were usually detained pending trial. According to the government, that means there was “no historical tradition” of giving indictees freedom to travel across state lines with firearms in tow. The government also says that interstate transportation of firearms was heavily regulated at the founding, so “the pre-existing right to keep and bear arms did not include an unfettered right to transport arms . . . across state lines.” The court is not persuaded by any of these arguments at step one.

At step two, the government offers “three distinct historical threads” that it claims justify subjecting Jackson to § 922(n): laws governing bail and pretrial detention, surety laws and laws disarming “dangerous or untrustworthy persons.” On the record before this court, it can’t agree that bail and pretrial detention reflect a guiding principle that helps the government.

But surety laws reveal that those accused of possessing dangerous weapons can be temporarily disarmed. And circuit precedent compels an even broader rule for “dangerous persons” laws: this court has held that legislatures can rely on categorical judgments (and “past conduct”) to disarm those “who might be expected to misuse” guns.

Jackson’s conduct is entitled to Second Amendment protection, but two different regulatory traditions permit the government to punish him all the same. This nation’s history and tradition of gun regulation shows that those accused of possessing unlawful weapons can be temporarily disarmed today. And the tradition of categorically disarming potentially dangerous groups separately justifies Jackson’s prosecution. On the facts here, 18 U.S.C. § 922(n) presents no constitutional problem.

Affirmed.

Employment; standing

BOTTOM LINE: Where 19 states and the District of Columbia sued the federal government over its termination of probationary employees, but they could not show an injury-in-fact, their suit was dismissed for lack of standing.

CASE: State of Maryland v. United States Department of Agriculture, Case Nos. 25-1248, 25-1338 (filed Sept. 8, 2025) (Judges WILKINSON, Rushing) (Judge BENJAMIN dissents).

FACTS: On March 6, 2025, 19 states and the District of Columbia sued 21 federal agencies, alleging that the terminations of probationary employees were unlawful because (1) the terminations were not a result of individualized, for-cause determinations, (2) they therefore constituted a reduction in force, or RIF and (3) the federal government did not comply with the statutory RIF requirements, which included giving the states 60 days’ notice.

The district court granted plaintiffs’ request for a preliminary injunction on April 1, 2025. On April 9, this court stayed the preliminary injunction pending appeal.

LAW: The states advance two related theories of informational injury: first, that the injury was the failure to obtain the specific information mandated by the notice requirement, and second, that the injury was the preparatory time lost as a result of the failure to provide notice.

The alleged downstream harms caused by both alleged injuries converge into three rough categories: (1) rapid-response-related expenses incurred prior to filing the present lawsuit (e.g., the costs of creating the new websites and phone lines and any costs associated with diverting resources to implementing the programs); (2) forward-looking rapid-response-related expenses and (3) various indirect impacts to state budgets (e.g., the costs of processing heightened volumes of applications for state-subsidized health insurance and the income tax losses for the period the probationary employees would have worked had there been a 60-day notice period).

None of these categories provides a sufficient basis to find a cognizable injury-in-fact. As an initial matter, the states cannot point to previously incurred expenses as a harm for purposes of standing in a request for a preliminary injunction. Prospective relief must instead be justified by prospective injury.

Thus, with regard to the rapid response programs, the court focuses only on the allegedly ongoing and forward-looking expenses at the time the states filed their complaint. While monetary harms generally qualify as injuries-in-fact, the court cannot view the injuries of states at this high level of abstraction. It must instead consider the context in which the alleged injuries arose.

The federal government is required in all kinds of ways to respect the basic sovereignty of the states. But the reverse is also true. It is hard to imagine a more traditionally federal function than the management of the federal workforce. The federal workforce performs federal functions. How it performs them is a matter of federal concern. Because the interest here is a traditionally federal one, the states have no judicially cognizable injury.

A contrary result would upend the federalist system by ceding federal sovereignty to the states. Innumerable federal actions impact state budgets and programs. Under plaintiffs’ theory, every modification in federal funding levels would authorize states to sue in federal court. This is all too open-ended.

Finally, the alleged declines in tax revenue and increased social services expenses float ever further downstream. If states could claim these “peripheral costs” for purposes of standing, there would effectively be no barrier to suit.

And the broad remedy here presents a redressability problem. The plaintiffs’ requested equitable remedy primarily served to vindicate the interests and rights of the non-party probationary employees. This creates a fatal disconnect between the plaintiffs’ alleged injury and the sweeping relief they requested.

Plaintiffs’ requested relief was ultimately aimed at vindicating the rights of the non- party employees. The 60-day notice requirement applicable to the states is just one provision amid a sea of provisions in the RIF statute that otherwise seek to protect the rights and interests of federal employees. The indefinite reinstatement of federal employees is simply too much to request to remedy a lack of notice.

In sum, the states impermissibly sought to use the narrow violation of one provision in this large statutory scheme to have a federal district court oversee the Executive’s compliance with broader employment law. Federal courts lack jurisdiction to entertain such lopsided suits.

Vacated with directions to dismiss.

DISSENT: The majority finds that the states do not have standing. It ignored the real harms asserted by the states, relies on a misreading of United States v. Texas, 599 U.S. 670 (2023), and adopts the government’s willful ignorance of the states’ actual claims. As the district court’s order ably set-out, the states clearly have standing to challenge the process by which the government has engaged in mass firings.

Immigration; torture

BOTTOM LINE: Where the Board of Immigration Appeals failed to address a man’s argument that he will be tortured if returned to Guyana, because he’s a Black criminal deportee with physical disabilities, it erred.

CASE: McDougall v. Bondi, Case No. 23-1722 (filed Sept. 5, 2025) (Judges DIAZ, Agee, Richardson).

FACTS: Marlon McDougall petitions for review of an order of the Board of Immigration Appeals that denied his claim for protection under the Convention Against Torture, or CAT. The Board concluded that McDougall wasn’t entitled to deferral of removal because he failed to show that Guyanese officials would specifically intend to torture him, or that the Guyanese government would acquiesce to his torture by others.

LAW: To warrant protection under the CAT, an applicant must “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” McDougall argues that the Board ignored unrebutted evidence that those who share certain traits of his—Black people, people with disabilities and criminal deportees—face an increased likelihood of torture in Guyana.

The court agrees. Though McDougall fears torture related to his mental illness (which the Board did address), he also fears torture for these other reasons. And he presented evidence and arguments in support of those reasons.

McDougall testified that he feared he would be targeted and tortured by police and by members of the public because he’s a deportee, has physical disabilities and is Black. He explained that he had learned his criminal history was “all over the news” in Guyana and that people were “waiting for him.” He submitted evidence of heinous acts of violence committed by the police and the public against individuals like him, and accounts of the government’s willingness to turn a blind eye to the latter.

Yet the Board (and the immigration judge) focused solely on the likelihood of torture on account of McDougall’s mental illness. Indeed, the Board’s decision doesn’t mention McDougall’s argument (and accompanying evidence) that he will be tortured because he’s a Black criminal deportee with physical disabilities. While the Board did address McDougall’s contention that his mental illnesses would lead to his torture, it was not free to ignore those other “important aspects of [McDougall’s] claim.”

The government, resisting this conclusion, points to two statements from the Board’s decision: its conclusions that the immigration judge (1) addressed “evidence of police violence in finding that [police] do not” “intentionally harm people with mental health issues on account of discrimination and social stigma” and (2) didn’t clearly err in “finding the government does not intend to torture its citizens.”

Despite the Government’s artful italicization, its reading of both statements is wrong. In context, the statements refer to torture related to mental illness. Neither shows that the Board considered risk-of-torture evidence that was unrelated to mental illness or offers a “specific, cogent reason[] for disregarding [that] credible, significant, and unrebutted evidence.” Nor does the rest of the Board’s opinion. By ignoring this evidence, the Board “disregard[ed] important aspects of [McDougall]’s claim” and abused its discretion.

Petition granted. Vacated and remanded.

Prisons; mootness

BOTTOM LINE: Although the inmate was granted clemency while his motion for sentence reduction was pending, the district court wrongly dismissed his motion was moot. He was still serving a term of supervised release that could be reduced by the district court.

CASE: United States v. Darcus Jr., Case No. 25-6130 (filed Sept. 11, 2025) (per curiam).

FACTS: Ernest Carl Darcus Jr. pled guilty, pursuant to a written plea agreement, to possession with intent to distribute 50 grams or more of cocaine base. At his sentencing hearing in 2009, the district court sentenced Darcus to 292 months’ imprisonment followed by five years of supervised release.

In 2019 and 2022, Darcus moved for a sentence reduction pursuant to § 404(b) of the First Step Act of 2018, or FSA, which made retroactive changes in statutory penalties for crack offenses enacted in the Fair Sentencing Act of 2010. In his renewed motion, Darcus requested that the district court reduce his term of imprisonment from 292 months to time served and that his term of supervised release be reduced from five years to four years.

On Jan. 22, 2025, Darcus was granted clemency. The executive grant left the term of supervised release imposed by the district court unaltered, including all its conditions and all other components of the sentence. Based on the executive grant of clemency, the district court denied Darcus’s renewed § 404(b) motion as moot. Darcus appealed.

LAW: “[A] case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.”

Under the unitary sentence framework, “even when a prison term has ceased, a defendant serving a term of supervised release has a ‘legally cognizable interest in the outcome’ of a challenge to his sentence.” Here, Darcus is still serving a term of supervised release, and thus he still has a legally cognizable interest his FSA claim.

Moreover, the FSA reduced the minimum term of supervised release for Darcus’s offense, and, therefore, the district court could still reduce that term. There is thus still relief that the court could grant Darcus.

Vacated and remanded.

Search & Seizure; cellphone search

BOTTOM LINE: Where a man argued his Fourth Amendment rights were violated when his probation officer directed him to return home, so he would be present while law enforcement executed a warrant, which allowed the government to seize and search his cellphone, his argument was rejected.

CASE: United States v. Rocco, Case No. 24-4609 (filed Sept. 9, 2025) (per curiam).

FACTS: Matthew Scott Rocco appeals his convictions for receiving child pornography and possession of child pornography. Rocco challenges only the district court’s denial of his motion to suppress evidence from a cellular telephone that law enforcement seized during its execution of a valid search warrant for Rocco’s residence. According to Rocco, law enforcement violated the Fourth Amendment and the “spatial constraint” the Supreme Court pronounced in Bailey v. United States, 568 U.S. 186 (2013), when his probation officer directed him to return home so he would be present while law enforcement executed the warrant.

LAW: Rocco asserts that law enforcement’s seizure of his telephone during the execution of a search warrant on his residence was unconstitutional because, working in conjunction with law enforcement, his probation officer instructed him to return to his home, which brought him within the geographical location of law enforcement’s search.

The Supreme Court has explained that “[t]he touchstone of the Fourth Amendment is reasonableness, and . . . is determined by assessing, on the one hand, the degree to which [law enforcement] intrudes upon an individual’s privacy and, on the other, the degree to which [a search or seizure] is needed for the promotion of legitimate governmental interests.” Here, Rocco, who was on supervised release at the time of law enforcement’s search, was required to allow the probation officer to conduct at-home visits as a condition of his release. Thus, the probation officer’s instruction that Rocco return home was only a minimal impingement on Rocco’s privacy.

Regarding the government’s interests, “[i]t was reasonable to conclude that the [imposed] condition[s] would further the two primary goals of [supervised release]— rehabilitation and protecting society from future criminal violations.” Indeed, the probation officer had a significant interest in ensuring that Rocco was complying with the terms of his release and was not harming the public by engaging in further crimes.

Notably, Rocco is a recidivist who had already violated the terms of his supervised release and, given law enforcement’s possession of a residential search warrant, there was probable cause to believe that Rocco was violating again.

Affirmed.