Maryland Tax Sales: Change is on the way—One way, or Another

*Joshua Rodriguez

I. Introduction

In August of this year, Baltimore City resident Deana Woodward lost her home to the City’s tax sale process, likely due in part to an error by Baltimore City’s Department of Public Works.[1] Baltimore City executed Ms. Woodward’s eviction August 7, 2023, despite efforts to cease forced removals on owner-occupied tax sale properties.[2] Baltimore City’s tax sale process has garnered public criticism for several years due to its destructive impact upon the welfare of the city and its residents.[3] The City has withheld its power to execute tax sales on owner-occupied properties in recent years, but cases like Ms. Woodward’s still slip through the cracks.[4] The infamous Baltimore City tax sale system perpetuates patterns of extreme economic disparities among Baltimore neighborhoods and entrenches housing instability within the city.[5]  While Baltimore City failed to overhaul tax sales in Maryland through the legislature in the previous legislative session,[6] recent and pending case law place new pressures on our state legislators to evaluate the validity of the current system.[7]

II. Baltimore City Tax Sales and Reform Efforts

In Baltimore City, a property owner can lose their property in annual tax sale auctions as a consequence of property tax defaults as low as $750.[8] In a tax sale auction, businesses and investors bid on the properties to win a tax lien certificate.[9] The proceeds of the sale are meant to cover the tax debts owed on the properties; however, winning bids often exceed the amount of tax arrears.[10] Under the City’s tax sale scheme, the City owes the surplus amount to the property owner; however, the City rarely delivers.[11] Beyond unreturned surpluses, the City’s tax sale system results in thousands of properties annually recycled through the system without drawing a bid for sale.[12] As a broad stroke response to the troubles of tax sales, The Mayor’s Office of Baltimore City introduced a sweeping tax sale reform bill during the Maryland 2023 Legislative Session.[13] The bill failed at the “eleventh hour” in part due to unexpected budgetary pressures.[14] While the legislative resolution failed in Annapolis, the United States Supreme Court soon thereafter took up the issue of tax sales, drawing a new constitutional limit in Tyler v. Hennepin County.[15]

III. Tyler v. Hennepin County

In April 2023, the Supreme Court awarded the surplus revenue from a Minnesota tax sale of real property to the property’s prior owner, Ms. Geraldine Tyler.[16] The Supreme Court found the Minnesota tax scheme’s retention of surplus proceeds forced an unconstitutional taking, and therefore required the state to deliver the tax sale surplus to Ms. Tyler as just compensation.[17] The Court’s decision was a powerful declaration on potential implications of tax sale systems; however, in refraining to discuss tangential issues, the Court displayed caution in exploring constitutional underpinnings of tax sales.[18]

Most notably, the Court did not consider whether a government owes the equity value of real property to the property owner.[19] The Minnesota property tax system allowed for Hennepin County to sell the property outright, thereby muddying the distinction between the property’s equity value and a tax sale surplus.[20] Ms. Tyler therefore argued a property interest in the surplus was taken, and the Court limited its holding to address an interest in the surplus according to Ms. Tyler’s argument.[21] United States courts have since already cited to Tyler in forty-six opinions, as municipalities across country feel the jurisprudential waves from the Court’s new application of the Takings Clause.[22] The Court’s opinion defers the issue of takings via tax sales to state-specific interpretations by determining property interests via a localized analysis, reviewing state legal and historical precedent as a central analytical step.[23] As the Maryland legislature prepares for renewed debates around its tax sale scheme, further interpretations of Tyler v. Hennepin may inform the legislature of the constitutional bounds it must work within.[24]

IV. Nieveen and Fair and the Equity Question

The Court received the Tyler petition at the same time as two others from Nebraska, Nieveen v. TAX 106[25] and Continental Resources v. Fair.[26] While Tyler dealt with Minnesota’s surplus retention scheme, Nebraska has a surplus return system, like that of Maryland.[27] In a surplus return system, a property owner receives the surplus of a tax sale.[28] While the Court remanded Tyler with clear instructions that retention of surplus by the government was unconstitutional in light of a valid property interest in such surplus, Nieveen and Fair present the issue of whether the tax sale’s effect upon the owner’s interest in the equity value of a property also qualifies as a taking.[29] In both cases, the Supreme Court of Nebraska rejected claims that the government took the equity of the property from the owner.[30] Courts appear reluctant to address the difficult question whether a property interest exists in the equity inherent of real property.[31] Instead of forming a legal analysis for surplus return jurisdictions, the U.S. Supreme Court remanded both Nieveen and Fair for reconsideration in light of Tyler.[32] By remanding these cases to the circuits, the Court will allow further debate on the equity question through state-specific litigation.[33]

V. Conclusion

Advocates for tax sale reform in Baltimore eagerly await an opportunity to curb the crippling effects of tax sales on their city.[34] In Tyler, the Court marked a strong but indeterminate boundary, leaving constitutional questions for litigants and state legislators to sort out in the coming decades.[35] Regardless of the Maryland legislature’s course of action, change is on the way to the Maryland tax sale system—one way, or another.[36]

*Joshua R. Rodriguez is a second-year day student at the University of Baltimore School of Law. He serves as a Staff Editor for the Law Review, as Secretary for the UB Law Student Bar Association, and as a Research Assistant to Professor Robert H. Lande, Emeritus. He is also a member of UB’s Latin American Law Student Association and the Royal Graham Shannonhouse III Honor Society. Joshua has a background in international development, but has since turned his interest in economic and community development to the domestic sphere. Joshua is driven by and pursues scholarship around complex issues related to economics, wealth disparities, and justice. He encourages readers to engage in their local community or neighborhood association to learn more about housing crises in their backyard, whether that be Baltimore or beyond. 

[1] Hallie Miller, A Baltimore Woman Faces Eviction over Unpaid Water Bills from 2018, Despite State Law, Balt. Banner, (Aug. 5, 2023, 5:30 AM), https://www.thebaltimorebanner.com/community/housing/baltimore-eviction-unpaid-water-bills-NSHUPL462BALPKJMBDWFRLBBMI/.

[2] Id.

[3] Nick Thieme & Sophie Kasakove, Tax Sale Nightmare: How an Unpaid Bill Can Cost Baltimore Homeowners Thousands, Or Even Their Homes, Balt. Banner (Jan. 26, 2023, 11:10 PM), https://www.thebaltimorebanner.com/community/housing/baltimore-tax-sale-lien-auction-64APUHOPUFB6VJ4Z6IX6WC7NMU/.

[4] Miller, supra note 1.

[5] Thieme & Kakakove, supra note 3 (discussing the popular symbolic “Black Butterfly” image used to describe Baltimore City’s urban landscape; the “butterfly” refers to stretches of Baltimore City’s geography as it extends upward and outward from the city center, correlated with concentrations of minority residents, higher rates of poverty, and higher rates of housing instability).

[6] See infra notes 13–14 and accompanying text. 

[7] See infra notes 24, 31–36 and accompanying text. 

[8] Md. Code Ann., Tax–Prop. § 14-811.

[9] See Laila Milevski, How Baltimore Property Tax Sales Work: An Illustrated Guide, Balt. Banner (Jan. 26, 2023, 8:50 AM), https://www.thebaltimorebanner.com/community/housing/baltimore-property-tax-sale-guide-4DNWF6THQBEBTNTJM7IXVWO5NI/ (providing a succinct overview of the Baltimore City tax sale system).

[10] Sophie Kasakove & Nick Thieme, Baltimore Residents Who Lose Homes After Tax Sales Often Don’t See Excess Funds They’re Owed From Auction, Balt. Banner (Feb. 13, 2023, 3:45 PM), https://www.thebaltimorebanner.com/community/housing/baltimore-city-tax-sale-foreclosure-funds-TWQXWYNBNJGABKYCDMCFCZ7WCM/ (outlining that Baltimore City currently sits on an unclaimed $6 million tax sale surplus).

[11] Id.

[12] Mary Miller & Mac McComas, The Cost of Baltimore’s Vacant Housing, Johns Hopkins Univ. 21st Century City Initiatives (Sept. 2022), https://21cc.jhu.edu/wp-content/uploads/2022/09/the-costs-of-baltimores-vacant-housing-1.pdf.

[13] Sophie Kasakove et al., Proposal to Overhaul Tax Sale Fails to Pass After Baltimore City Pumps Breaks on Own Legislation, Balt. Banner (April 11, 2023, 4:36 PM), https://www.thebaltimorebanner.com/community/housing/baltimore-tax-sale-reform-legislation-stalled-7Y3HYTVTCFHM7GSBUGRIKRQ7AM/.

[14] Id.

[15] Tyler v. Hennepin Cnty., 598 U.S. 631, 647 (2023).

[16] Id. (“A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution . . . than she owed . . . . [She] must render unto Caesar what is Caesar’s, but no more.”).

[17] Id. at 645.

[18] Id. at 647–48.

[19] Compare Tyler, 598 U.S. at 637–43, 47 (“A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed. The taxpayer must render unto Caesar what is Caesar’s, but no more.”) with Rafaeli, LLC v. Oakland Cnty., 505 Mich. 429, 498–99 (2020) (Viviano, J. concurring) (“The majority’s flawed interpretive methodology has led it to characterize the “property” at issue as merely the surplus proceeds from the foreclosure sale.”). See also infra note 29 and accompanying text.

[20] Rule 26(f) Report at 2, Tyler v. Hennepin Cnty., 505 F. Supp. 3d 879 (D. Minn. 2020), aff’d, 26 F.4th 789 (8th Cir. 2022), rev’d 598 U.S. 631 (2023) (No. 20-cv-889-PJS-BRT).

[21] Tyler,598 U.S. at642–43. The Court also refrained from addressing implications of an outstanding mortgage. See Tyler,598 U.S. at636–37. The Court decided to also not address Ms. Tyler’s alternative argument of unconstitutionality, that such a tax sale procedure would stand as an excessive fine. Tyler,598 U.S. at 647–48.

[22] See, e.g., Nieveen v. TAX 106, 143 S. Ct. 2580 (2023); Fair v. Cont’l Res., 143 S. Ct. 2580 (2023); Sinclair v. Meisner, No. 2:18-CV-14042-TGB-MJH, 2023 WL 3854068, at *1 (E.D. Mich. June 6, 2023); Basilis N. Stephanatos v. Wayne Township, et al., No. CV 12-1793, 2023 WL 5605564 (D.N.J. Aug. 30, 2023); Valancourt Books, LLC v. Garland, No. 21-5203, 2023 WL 5536195 (D.C. Cir. Aug. 29, 2023); Jenkins v. United States, 71 F.4th 1367 (Fed. Cir. 2023).

[23] Tyler, 598 U.S. at 638.

[24] See infra notes 31–36 and accompanying text.

[25] See Nieveen, 143 S. Ct. 2580.

[26] See Fair, 143 S. Ct. 2580.

[27] Jenna Christine Foos, State Theft in Real Property Tax Foreclosure Procedures, 54 Real Prop. Tr. & Est. L.J. 93, 99–103 (2019) (demonstrating that approximately nine states facilitate surplus retention schemes, and approximately thirty-two states including Maryland facilitate surplus return).

[28] Id. at 99–100.

[29] See Nieveen v. TAX 106, 311 Neb. 574, 589, cert. granted, judgment vacated, 143 S. Ct. 2580 (2023); Cont’l Res. v. Fair, 311 Neb. 184, 199–200, cert. granted, judgment vacated, 143 S. Ct. 2580 (2023).

[30] Nieveen, 311 Neb. at 589; Fair, 311 Neb. at 199–200.

[31] See Rafaeli, LLC v. Oakland Cnty., 505 Mich. 429, 498–99, 515 (2020) (Viviano, J. concurring) (“My analysis . . . starts at the beginning: the property owners’ preexisting interest in the real estate, or their equity . . . . Equity has better historical grounding than any novel and freestanding right to proceeds—indeed, it is the reason entitlement to proceeds may exist—and is a common enough concept that I cannot comprehend the majority’s efforts to avoid it.”).

[32] Nieveen. TAX 106, 143 S. Ct. 2580 (2023); Fair v. Cont’l Res., 143 S. Ct. 2580 (2023).

[33] See Nieveen, 143 S. Ct. at 2580; see also Fair, 143 S. Ct. at 2580.

[34] See, e.g., The Plan, Renew Baltimore, https://renewbaltimore.org/the-plan/ (last visited Sept. 5, 2023); see also, Reforming Baltimore’s Tax Sale System, HUBWest Balt. Cmty. Dev. Corp., https://www.hubwestbaltimore.org/city-tax-sale-system (last visited Sept. 5, 2023).

[35] Cf. Editorial Advisory Board, Maryland Tax Sale Process Must Change to Stop Harming Black Residents, Daily Rec. (Feb. 23, 2023, 2:34 PM), https://thedailyrecord.com/2023/02/23/tax-sale-the-supreme-court-and-maryland/ (discussing Maryland’s need for tax sale reform and the potential implications of Tyler v. Hennepin in response to the Supreme Court’s grant of certiorari); see generally supra note 27.

[36] Id.

Standing for Self-Proclaimed “Testers” – The Circuits are Split.

*Kata Kylliainen

I. What is Standing?

           Under Article III of the U.S. Constitution, federal courts only have jurisdiction over cases and controversies.[1] To determine whether a claim meets the cases and controversies requirement, the Supreme Court implemented the doctrine of standing.[2] In Lujan v. Defenders of Wildlife, the Court established three elements a plaintiff must satisfy to have standing under the Constitution.[3] The first element requires a plaintiff to have experienced an “injury in fact.”[4] An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent.”[5] The injury cannot be “conjectural or hypothetical.”[6] Second, the plaintiff must show “a causal connection between the injury and the conduct complained of.”[7] Third, it “must be likely . . . that the injury will be redressed by a favorable decision.”[8] These elements ensure that “the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.”[9]

II. The Circuit Split

Recently, six cases have made their way up to six different Circuits of the Federal Courts of Appeals to address the issue of whether a self-proclaimed “tester” has standing to bring a claim where the alleged injury is informational or stigmatic only.[10]  The Fourth Circuit’s decision in Laufer v. Naranda Hotels, LLC, created an even split of 3-3 between the federal courts of appeals.[11] Two plaintiffs, Owen Harty and Deborah Laufer, were both self-proclaimed “testers”, with Laufer describing herself as an “advocate of the rights of similarly situated disabled persons” with a “purpose of asserting her civil rights and monitoring, ensuring, and determining whether places of public accommodation and their websites are in compliance with the ADA.”[12] Harty and Laufer brought their claims against the owners of hotels for alleged noncompliance with provisions of the Americans with Disabilities Act (ADA).[13] The injury complained of was informational in nature.[14] For example, in one of her five lawsuits, Laufer alleged that the hotel’s violations “deprive[d] her of the information required to make meaningful choices for travel.”[15] Harty and Laufer, both disabled, visited the hotels’ websites and brought suit after finding that the websites did not comply with the ADA based on the omission of accessibility-related information.[16] Neither plaintiff had any intention of actually booking or visiting the hotels.[17] In all six cases, the district courts dismissed the plaintiffs’ claims on the grounds that they lacked standing.[18] On appeal, the Second, Fifth, and Tenth Circuits confirmed the district courts’ findings denying that testers have standing under the Lujan elements.[19] Conversely, the First, Fourth, and Eleventh Circuits have ruled in the affirmative, that such testers do have standing under Article III.[20]

The first appeal, decided in the Fifth Circuit, held that Laufer did not have standing because she failed to establish a concrete injury.[21] “She visited the [website] to see if the motel complied with the law, and nothing more.”[22] While an “inability to obtain information is sufficiently concrete to constitute injury in fact . . . when the information has some relevance to the litigant,”[23] Laufer has failed to establish such relevance because she had no concrete plans to stay at the hotel.[24] The Tenth Circuit also held that Laufer did not have standing because she did not suffer a concrete injury.[25] In evaluating Laufer’s arguments, the Tenth Circuit distinguished Laufer’s injury from the injury suffered in Havens Realty.[26] In Havens Realty, the Supreme Court held that a “tester” could sue under the Fair Housing Act.[27] However, the Havens Realty Court dealt with an injury “grounded in misrepresentation and racial animus”, a bar which Laufer did not surpass.[28] Following the holdings of the Fifth Circuit in Mann Hospitality and the Tenth Circuit in Looper, the Second Circuit also found that Harty did not have standing to bring suit as a “tester” based on his failure to allege an injury in fact.[29] The court found that Harty failed to show that he had an “interest in using the information . . . beyond bringing [his] lawsuit.”[30] Thus, Harty failed to plead an injury sufficient to confer standing under Article III of the U.S. Constitution.[31]

The Eleventh Circuit broke with neighboring circuits, standing out as the first to recognize that Laufer alleged an injury in fact sufficient to withstand dismissal for lack of Article III standing.[32] The court reasoned that Laufer’s injury constituted a concrete, stigmatic injury because the emotional injury, “frustration and humiliation[,]” and “sense of isolation and segregation” as a result of the noncompliance could affect her “in a personal and individual way” making them sufficiently particularized.[33] Next, the First Circuit and the Fourth Circuit both concluded that Laufer did in fact have standing in Laufer v. Acheson Hotels, LLC and Laufer v. Naranda Hotels, LLC, respectively, regardless of the fact that she never had concrete plans to visit either hotel.[34] In looking to the Tenth’s Circuit distinguishing of Haven’s Realty, both the First and Fourth Circuits found the distinguishment to be an unnecessary measure, as Haven’s Realty confers standing when the injury in fact is a failure to obtain information, even where the individual “ha[s] no intent to use the information for anything but a lawsuit.”[35] Although racial animus was relevant as an element of the statutory violation in Haven’s Realty, the lack of purposeful discrimination against Laufer did not preclude her standing to bring suit under the ADA.[36]

III. Conclusion

Ultimately, the circuit split boils down to whether an informational injury constitutes an injury in fact sufficient to confer Article III standing.[37] Given Laufer’s status as a self-proclaimed “tester” and her appearance as the plaintiff in five of the six cases mentioned above,[38] the circuit split may continue until the Supreme Court rules on the matter. For now, Laufer has paved a path forward for herself and other self-proclaimed “testers” to bring suit against hotels they have no intention of visiting, at least in the First, Fourth, and Eleventh Circuits.[39]

*Kata Kylliainen is a second-year student at the University of Baltimore School of Law. In September, she was inducted into the Royal Graham Shannonhouse III Honor Society. At school, she is a Staff Editor on the University of Baltimore Law Review and is excited to be a law scholar for Professor Kim Wehle in the Spring of 2024. During her first-year summer, Kata worked as an intern at Wharton Levin Ehrmantraut & Klein. She is excited to return to Gallagher Evelius & Jones in May for her second-year summer associate position.

[1] U.S. Const. art. III § 2, cl. 1.

[2] Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 161 (4th Cir. 2023) (citing Carney v. Adams, 141 S. Ct. 493, 498 (2020)).

[3] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

[4] Id. at 560.

[5] Id.

[6] Id. at 560 (internal quotations and citations omitted).

[7] Id. (internal citations omitted).

[8] Id. at 561 (internal quotations and citations omitted).

[9] Laufer v. Looper, 22 F.4th 871, 876 (10th Cir. 2022) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).

[10] See generally Naranda Hotels, 60 F.4th 156; Looper, 22 F.4th 871; Arpan LLC, 29 F.4th 1268; Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022); Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269 (5th Cir. 2021); Harty v. West Point Realty, Inc., 28 F.4th 435 (2nd Cir. 2022).

[11] Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 174 (4th Cir. 2023); see also Laufer v. Arpan LLC, No. 20-14846, 2023 WL 5209551, at *1 (11th Cir. Aug. 15, 2023). The opinion in Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022) is moot, making the current split 3-2.

[12]  Naranda Hotels, 60 F.4th 15 at 158–59.

[13] Id at 158.

[14] Id. at 160.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] See Laufer v. Looper, 22 F.4th 871, 883 (10th Cir. 2022); Laufer v. Mann Hospitality, 996 F.3d 269, 273 (5th Cir. 2021); Harty v. West Point Realty, Inc., 28 F.4th 435, 445 (2nd Cir. 2022).

[20] See Naranda Hotels, 60 F.4th at 174; Laufer v. Arpan LLC, 29 F.4th at 1296–97 (11th Cir. 2022); Acheson Hotels, 50 F.4th at 278–79.

[21] Mann Hospitality, 996 F.3d at 272.

[22] Id.

[23] Id. at 273 (quoting Griffin v. Dep’t of Lab. Fed. Credit Union, 912 F.3d 649, 654 (4th Cir. 2019)).

[24]  Id.

[25]  Laufer v. Looper, 22 F.4th 871, 878 (10th Cir. 2022).

[26]  Id. at 879.

[27]  Id. at 878 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 374 (1982)).

[28] Id. at 879.

[29] Harty v. West Point Realty, Inc., 28 F.4th 435, 444 (2nd Cir. 2022).

[30] Id.

[31] Id. (citing Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269, 273 (5th Cir. 2021)).

[32] Laufer v. Arpan LLC, 29 F.4th 1268, 1273 (11th Cir. 2022).

[33] Id. at 1274–75 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)).

[34] Laufer v. Acheson Hotels, LLC, 50 F.4th 259, 278 (1st Cir. 2022); Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 162 (4th Cir. 2023).

[35] See Acheson Hotels, 50 F.4th at 271, 273–74; Naranda Hotels, 60 F.4th at 171–72.

[36] Naranda Hotels, 60 F.4th at 171­­–72.

[37] See id. at 174; Acheson Hotels, 50 F.4th at 278–9; Arpan LLC, 29 F.4th at 1296–97; Laufer v. Mann Hospitality, L.L.C., 996 F.3d 269, 273 (5th Cir. 2021); Laufer v. Looper, 22 F.4th 871, 883 (10th Cir. 2022); Harty v. West Point Realty, Inc., 28 F.4th 435, 445 (2nd Cir. 2022).

[38] See Naranda Hotels, 60 F.4th at 158; Acheson Hotels, 50 F.4th at 265; Mann Hospitality, 996 F.3d at 271; Looper, 22 F.4th at 874; Arpan LLC, 29 F.4th at 1270 (11th Cir. 2022).

[39] See Naranda Hotels, 60 F.4th at 174; Acheson Hotels, 50 F.4th at 278–79; Laufer v. Arpan LLC, 29 F.4th at 1296–97 (11th Cir. 2022); see also Laufer v. Arpan LLC, No. 20-14846, 2023 WL 5209551, at *1 (11th Cir. Aug. 15, 2023). The opinion in Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022) is moot, making the current split 3-2.

The Circuit Split Regarding the ATF’s Bump Stock Rule

*Sean Costigan

I. Introduction

A bump stock is a rifle attachment that drastically increases the rifle’s rate of fire.[1] While the federal regulations regarding bump stocks have changed,[2] the courts disagree as to whether the change is valid.[3] This lack of consensus demands judicial resolution to prevent confusion where criminal liability, including felony convictions, is at stake.

II. What are Bump Stocks?

Bump stocks are designed to increase a rifle’s rate of fire beyond what would be manually possible.[4] A bump stock replaces a rifle’s conventional stock, the part that rests against the user’s shoulder.[5] The bump stock allows the rifle to slide forward and backward when fired  and harnesses the energy of the rifle’s recoil along the length of the rifle causing the weapon to rapidly shift back and forth.[6] This back-and-forth motion causes the rifle to bump the user’s trigger finger, allowing the user to reactivate the trigger even though the user only pulls the trigger one time.[7] Where without a bump stock a user would need to pull a trigger each time they wanted to discharge a round, bump stocks allow a user to fire multiple rounds (if not the entire magazine) automatically with a single, long trigger pull.[8]

III. The ATF’s Bump Stock Regulations

The law today makes possession of a machinegun a criminal offense (notwithstanding certain exceptions).[9] The relevant statute defines “machinegun” as:

any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall include . . . any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.[10]

Initially, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) stated that non-mechanical bump stocks were not considered machineguns or machinegun parts[11] due to these bump stocks relying on the recoil from the rifle to function and requiring the user to apply constant forward pressure on the rifle’s barrel.[12] The ATF changed its stance in 2018[13] after a mass shooting at a music festival in Las Vegas, Nevada.[14] During this incident, the shooter killed dozens of people and injured hundreds more while using multiple rifles equipped with bump stocks.[15] In the aftermath,[16] the ATF issued a Final Rule amending its regulation to include bump stocks in its interpretation of “machinegun” because “such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.”[17] Owners of bump stocks had ninety days after the Final Rule was published to either destroy these stocks or surrender them to the ATF to avoid criminal liability.[18]

IV. The Circuit Split

In response to the ATF’s ban on bump stocks, multiple lawsuits arose challenging the new regulation.[19] Multiple cases reached separate federal courts of appeals, with two ruling in favor of the regulation and two ruling against it.[20]

In Guedes v. Bureau of Alcohol, Firearms, Tobacco and Explosives, the Court of Appeals for the D.C. Circuit held that the ATF’s construction of the term machinegun to include bump stocks was the best interpretation of the statute.[21]  The court focused heavily on two defining terms: “single function of the trigger” and “automatically.”[22] The court held that “single function of the trigger” simply meant pulling the trigger once[23] and “automatically” meant “the result of a self-acting or self- regulating mechanism that allows the firings of multiple rounds.”[24]

A bump stock allows a user to pull the trigger once, causing the rifle to fire rounds one after another, in a self-acting or self-regulating way so long as the trigger continues to be pulled. Accordingly, the court found that bump stocks fell within the definition of machinegun.[25] The Court of Appeals for the Tenth Circuit also upheld the ATF’s new bump stock rule.[26]

In a more recent case, Hardin v. Bureau of Alcohol, Firearms, Tobacco and Explosives, the Sixth Circuit Court of Appeals reached an opposite conclusion.[27] First, the court found the machinegun definition ambiguous as applied to bump stocks, citing differing judicial rulings on the matter and the ATF’s change of stance regarding bump stocks.[28] Second, it held that the ATF’s construction did not deserve deference from the court due to the potential criminal liability involved.[29] For these reasons, the court believed that the rule of lenity applied.[30] Lenity requires a court to strictly construe a criminal statute.[31] Thus, the court held that “it is not enough to conclude that a criminal statute should cover a particular act. The statute must clearly and unambiguously cover the act.”[32] In other words, the ambiguity and lack of deference to the ATF’s construction required the court to interpret the statute in Hardin’s favor.[33] The Fifth Circuit similarly ruled against the ATF’s new bump stock rule.[34]

V. The Supreme Court’s Need to Rule on the Bump Stock Rule

The contradictory holdings coming from these different circuits open the door to inconsistent rulings on the exact same issue, which means a federal rule could be valid in some parts of the county, but not in others. In light of this circuit split, the Supreme Court granted certiorari under Garland v. Cargill in November 2023, signaling that the Court would definitively rule on the validity of the ATF’s new bump stock rule.[35] The Court’s decision would likely depend on whether it finds the machinegun definition ambiguous as it pertains to bump stocks and the applicability of the Chevron doctrine.[36] Until the Supreme Court announces its decision, these opposing rulings will continue to leave people guessing as to whether or not owning a bump stock is a crime.

*Sean Costigan is a second-year student at the University of Baltimore School of Law and a Staff Editor for Law Review. Prior to law school, Sean served the public at the Social Security Administration for 10 years. He was recently inducted into the Royal Graham Shannonhouse III Honor Society as a Distinguished Scholar. He looks forward to externing at the United States Attorney’s Office in Baltimore, Maryland in the Spring 2024 semester.

Photo Credit: U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives.

[1] Larry Buchanan et al., What Is a Bump Stock and How Does It Work?, N.Y. Times (Mar. 28, 2019), https://www.nytimes.com/interactive/2017/10/04/us/bump-stock-las-vegas-gun.html.

[2] Bump-Stock-Type Devices, 83 Fed. Reg. 66, 514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447–49).

[3] See Guedes v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 45 F.4th 306, 310 (D.C. Cir. 2022); see also Hardin v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 65 F.4th 895, 897 (6th Cir. 2023).

[4] Buchanan, supra note 1.

[5] Id.

[6] Id. Additionally, the user needs to apply forward pressure on the rifle’s barrel with their non-trigger hand and rearward pressure with the hand that is holding the pistol grip. Id.

[7] Id.

[8] Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447-49).

[9] 18 U.S.C. § 922(o)(1) However, the statute does not apply to “the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof.” § 922(o)(2).

[10] 26 U.S.C. § 5845(b).

[11] Guedes v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 45 F.4th 306, 311 (D.C. Cir. 2022).

[12] Id.

[13] Id.

[14] Elizabeth Chuck, Las Vegas Shooting: 59 Killed and More than 500 Hurt Near Mandalay Bay, NBC News (Oct. 2, 2017, 10:33 PM), https://www.nbcnews.com/storyline/las-vegas-shooting/las-vegas-police-investigating-shooting-mandalay-bay-n806461.

[15] Id.

[16] Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (to be codified at 27 C.F.R. pts. 447-49).

[17] Id.

[18] Id. at 66, 549.

[19] Guedes v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 45 F.4th 306, 310 (D.C. Cir. 2022); Hardin v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 65 F.4th 895, 897 (6th Cir. 2023); Aposhian v. Barr, 958 F.3d 969, 974 (10th Cir. 2020); Cargill v. Garland, 57 F.4th 447, 451 (5th Cir. 2023).

[20] Guedes, 45 F.4th at 312, 323; Hardin, 65 F.4th at 897; Aposhian, 958 F.3d at 974; Cargill, 57 F.4th at 451.

[21] Guedes, 45 F.4th at 317.

[22] Id. at 314.

[23] Id. at 315.

[24] Id. at 316–17.

[25] Id. at 319.

[26] Aposhian v. Barr, 958 F.3d 969, 988 (10th Cir. 2020).

[27] Hardin v. Bureau of Alcohol, Firearms, Tobacco and Explosives, 65 F.4th 895, 897 (6th Cir. 2023).

[28] Id. at 898.

[29] Id. at 899–901.

[30] Id. at 901.

[31] Id. (citing FCC v. Am. Board. Co., 347 U.S. 284, 296 (1954)).

[32] Id. (quoting Cargill v. Garland, 57 F.4th 447, 473 (5th Cir. 2023) (Ho, J. concurring)) (emphases in original) (internal quotation marks omitted).

[33] Id. at 902.

[34] Cargill, 57 F.4th at 473.

[35] Garland v. Gargill, No. 22-976, 2023 WL 7266996 (U.S. Nov. 3, 2023).

[36] Under the Chevron doctrine, if Congress has not clearly spoken on the issue in question, courts are to defer to an agency’s construction of a statute that agency administers. Chevron, U.S.A. v. Nat. Res. Def. Council, Inc. 467 U.S. 837, 843–44 (1984).

Blindsided: Undoing a Nineteen-Year Conservatorship Between Michael Oher and the Tuohy Family.

*Amanda Fruman

Michael Oher, ex-National Football League (NFL) tackle and the inspiration for the movie The Blindside (2009), is making headlines in 2023 as a probate court recently ended his 19-year conservatorship with the Tuohy family.[1] The tensions evident between Oher’s petition and the Tuohy’s acknowledgment that they would release Oher from the conservatorship can point to the deeper implications of the white savior trope portrayed in the film.[2]

The 2009 film starring Quinton Aaron as Michael Oher portrayed the story of Oher, a homeless high school teen living in Memphis, Tennessee with enormous football potential.[3] The film follows Oher through his senior year of high school, where he was “adopted” by the Tuohy family, and depicts the family helping him understand football and navigate college prospects, ultimately landing him a spot on the Ole Miss roster.[4] While the feel-good film achieved immense success, Oher’s lawsuit in the Probate Court of Shelby County, Tennessee,[5] represented a different picture of the relationship between Oher and the Tuohy family.

I. Oher’s Petition

Oher filed a Petition to Terminate Conservatorship, for Accounting, and Other Relief on August 14, 2023.[6] The petition alleged that the Tuohys urged Oher to sign the papers granting the family authority over Oher’s medical and financial decision-making when he was beginning his time at Ole Miss.[7] Oher, who was eighteen at the time, alleges he was under the guise that the conservatorship amounted to adoption.[8] Now, nineteen years later, Oher discovered he was never adopted and further argues he was swindled out millions in profits from The Blindside film.[9]  Through their attorney, however, the Tuohy family stated that “[i]n reality, the Tuohys opened their home to Mr. Oher, offered him structure, support and, most of all, unconditional love[.]”[10] Yet the Tuohy family attorney also acknowledged that they would release Oher from the conservatorship amid these allegations.[11] While the Tuohys’ legal argument to justify profiting from Oher’s life story poses interesting questions, this article more thoroughly discusses how closing a conservatorship impacts former conservatees.[12] 

II. Tennessee Law

Tennessee law § 34-1-101(4)(B) defines conservatorship as:

A proceeding in which a court removes the decision-making powers and duties, in whole or in part, in a least restrictive manner, from a person with a disability who lacks capacity to make decisions in one or more important areas and places responsibility for one or more of those decisions in a conservator or co-conservators.[13]

Subsection (14) of the statute further defines a “person with a disability” as “any person. . . determined by the court to be in need of partial or full supervision, protection, and assistance.”  The subsection further lists “mental illness, physical illness or injury, developmental disability, or other mental or physical incapacity[,]” as disabilities.[14] 

A conservatorship is dramatically different from the adoption narrative sold by the film and the Tuohys. Although Oher was eighteen when he signed the conservatorship, Tennessee Law permits adults to be adopted instead of signed into a conservatorship.[15] Adoption does not require adoptees to relinquish their right to make decisions for themselves or require a documented physical or mental disability, whereas conservatorships demand both.[16] Thus, an adopted adult retains the ability to contract and perform adult functions without the consent of the conservators—making adult adoptions often symbolic more so than anything else.[17] In Oher’s case, he argues the conservatorship was tactically used to shield the Tuohy family from involving Oher in business decisions about the film, effectively sidelining him from its profits.[18]  And while a conservatorship in Tennessee requires a showing that the conservatee has a proven disability, there is no indication from Oher that he ever qualified as a person with a disability.[19]

III. Case Outcome

In response to Oher’s request, on September 29, 2023, Shelby County Probate Court Judge Kathleen Gomes ended the 2004 conservatorship.[20] Judge Gomes also did not dismiss Oher’s suit against the family seeking accounting information regarding Oher’s finances during the nineteen year period.[21] Judge Gomes further stated her shock that the conservatorship was created, remarking that “[she] cannot believe it got done.”[22] She also shared that she had never seen “such a conservatorship used for someone who is not disabled, and that it should have been dissolved a long time ago.”[23] 

IV. Conclusion: Broader Implications of Hollywood’s Portrayal of Oher’s Story

The filings from both parties and subsequent termination of the conservatorship suggest a fraught relationship between Oher and the Touhys, illustrative of how Hollywood’s use of the white savior trope often perpetuates a narrative that victimizes people of color.[24]

Oher’s allegations called to light the true story behind the idealized film, which painted him as unable to read and write as a high school senior, into the spotlight.[25] Yet in reality, Oher maintained his grades throughout high school and completed a college-level degree before joining the NFL.[26]  

With the renewed attention surrounding Oher’s story and subsequent film, the termination of the conservatorship serves as a reminder that Hollywood portrayals of real-life events may perpetuate harmful tropes and further encourages viewers to reexamine this film’s narrative.[27]   

—

*Amanda Fruman is a second-year student at the University of Baltimore School of Law. At school, she enjoys being a Law Review Staff Editor, a member of the Law School’s Honor Board, a University-Wide Conduct Board Member, and a teaching assistant to Professor Amy Sloan. During her first-year summer, Amanda served as a judicial intern to the Honorable Chief Justice Matthew Fader at the Supreme Court of Maryland. In May, she is excited to join Miles and Stockbridge as a summer associate.  

[1] Chris Bumbaca, ‘The Blind Side’ Subject Michael Oher’s Blockbuster Lawsuit Against Tuohy Family Explained, USA Today (Aug. 15, 2023, 12:46 PM), https://www.usatoday.com/story/sports/nfl/2023/08/15/michael-oher-conservatorship-what-to-know-about-blind-side-lawsuit/70594251007/.

[2] See infra text accompanying notes 6–19.

[3] Summary of The Blind Side, IMDB, https://www.imdb.com/title/tt0878804/?ref_=ttpl_ov_i (last visited Sept. 4, 2023).

[4] Id.

[5] Brief of Petitioner, In Re: Michael Jerome Williams, Jr., No. C-010333 (Probate Ct. Shelby County, TN 2023).  

[6] Id. at 1.    

[7] Id. at 7–8.

[8] Id. at 3–4.

[9] Id. at 4–5.

[10] Michael A. Fletcher, Tuohys Dispute Michael Oher Claims, Allege ‘Shakedown Effort’,ESPN (Aug. 15, 2023, 7:43 PM), https://www.espn.com/nfl/story/_/id/38199104/tuohy-family-disputes-michael-oher-claims-alleges-shakedown-blind-side-subject.

[11] Id.

[12] See infra Part III.

[13] Tenn. Code Ann. § 34-1-101(4)(B) (West 2023).

[14] Id. § 34-1-101(14).

[15]  Id. § 36-1-102(8) (“‘Adult’ means any person who is eighteen (18) years of age or older. An adult may be adopted as provided in this part[.]”).

[16]  See generally, id. § 36-1-101. 

[17]  Id.

[18] Brief of Petitioner at 4–5, In Re: Michael Jerome Williams, Jr., No. C-010333 (Probate Ct. Shelby County, TN 2023).  

[19] Brief of Petitioner at 4, In Re: Michael Jerome Williams, Jr., No. C-010333 (Probate Ct. Shelby County, TN 2023).

[20] Ayana Archie, A Judge Orders the End of the Conservatorship Between Michael Oher and the Tuohys, NPR (Sept. 29, 2023, 7:41 PM), https://www.npr.org/2023/09/29/1202776970/michael-oher-tuohys-conservatorship.

[21] Id.

[22] Id.

[23] Id.

[24] See generally Aisha Harris, ‘The Blind Side’ Drama Just Proves the Cheap, Meaningless Hope of White Savior Films, NPR (Aug. 18, 2023, 11:10 AM), https://www.npr.org/2023/08/18/1194535397/the-blind-side-michael-oher-white-savior; Erin Ash, Racial Discourse in “The Blind Side”: The Economics and Ideology Behind the White Savior Format, 35 Stud. in Popular Culture, Fall 2015, at 85–93; Andrew Lawrence, The Blind Side’s White Savior Tale was Always Built on Shaky Ground, The Guardian (Aug. 16, 10:09 AM), https://www.theguardian.com/sport/2023/aug/16/blind-side-white-savior-story-tuohy-michael-oher-conservatorship.

[25] Lawrence, supra note 20. 

[26] Id.

[27]  See generally Char Adams, Why Hollywood Embraced White Savior Movies like ‘The Blind Side’, NBC News (Aug. 18, 2023, 2:59 PM), https://www.nbcnews.com/news/nbcblk/hollywood-embraced-white-savior-movies-blind-side-rcna100413.

A Self-Driven Disaster: Tesla on Trial

*Brianna Watts

I. Introduction

Tesla Inc. (Tesla) is currently facing its first two trials of likely many following allegations that the “Autopilot” driver assistance feature failed and led to the death of two individuals in 2019.[1] The first trial, scheduled for mid-September, is a California civil suit involving the death of Micha Lee.[2] Lee, the owner of a Model 3[3] Tesla, was using the Autopilot system on a Los Angeles highway when the car suddenly veered off the highway at sixty-five miles per hour, struck a tree, caught in flames, and ultimately killed Lee, while seriously injuring the other two passengers.[4] Lee’s estate and the injured passengers filed the lawsuit, alleging that Tesla knew the Autopilot system was defective when the car was sold.[5] The second trial, scheduled for early October,  is a Florida civil suit involving the death of Stephen Banner.[6] Banner, also the owner of a Tesla Model 3, was driving in Miami using the Autopilot feature when the car traveled under the trailer of an eighteen-wheeler truck, tearing off the roof of the vehicle, and ultimately killing Banner.[7] Tesla disputed liability in both accidents, citing driver error and relying on the requirement that the driver must monitor the Autopilot assistance feature when in use to ensure safety.[8] In court documents, Tesla stressed that “[t]here are no self-driving cars on the road today.”[9]

II. History

Once only a dream in the works of science fiction, automated vehicles[10] have been around since the late 1970s.[11] As the number of vehicles with automated driving systems on the roads increased, it was not long before accidents associated with this feature occurred.[12] In 2022, nearly 400 reported vehicular crashes involved partially automated driving systems–273 of which included Teslas.[13] Tesla, a leader in the industry since its founding in 2003,  put cars with the Autopilot feature on the market in 2015.[14] The first deadly accident in the United States involving the driver assistance feature reportedly occurred in 2016, but the case never went to trial.[15]

As recently as April 2023, Tesla successfully defended its first suit relating to a crash allegedly caused by the automated driving software (albeit non-fatal).[16] Justine Hsu, the owner of a Model S[17] Tesla, alleged in the California civil suit that defects in the Autopilot driver assistance feature (as well as the airbag), caused her vehicle to swerve into a curb, deploying the airbag “so violently” it broke Hsu’s jaw, knocked out her teeth, and caused nerve damage in her face.[18] Tesla rejected any liability, citing the user manual’s warning against using Autopilot on city streets.[19] The jury sided with Tesla and awarded Hsu zero damages.[20]

III. Implications

The question of how autonomy implicates liability in the case of motor vehicle accidents is an interesting and novel legal issue. The National Highway Traffic Safety Administration (NHTSA) has detailed the “evolution of automated technologies” and the five levels of automation ranging between “momentary driver assistance” and “full automation.”[21] Under levels zero to two, where the technology is available on vehicles for consumer purchase, the NHTSA makes it clear: “You, as the driver, are responsible for driving the vehicle.”[22] Teslas have achieved level two.[23] Of note, the safety benefits listed for advanced driver assistance systems include “assist[ing] a driver by anticipating imminent dangers and working to avoid them.”[24] Ironically, it is not always safety that results from the use of these driver “assistance” features, as shown by the Tesla suits from this year alone. Thus, the NHTSA is currently checking the safety of these self-driving vehicles through its “Standing General Order on Crash Reporting,” amended in April 2023, which requires “identified manufacturers and operators” to report to the NHTSA crashes involving vehicles “equipped with automated driving systems.”[25] 

The cases involving Lee and Banner bothconcernmotor vehicle accidents where the Autopilot feature was involved, in the same model Tesla, each of which resulted in death to the driver. Considering Tesla’s recent success with the Hsu case, and a different model Tesla at issue, it may seem as though things are looking up for the company. However, with higher stakes, fatalities involved, and a lack of caselaw to guide magistrates and advocates, the courts’ verdicts are hard to anticipate.

IV. Conclusion

The NHTSA states that “[i]t is vital to emphasize that drivers will continue to share driving responsibilities for the foreseeable future.”[26] Current CEO Elon Musk predicts that Tesla will achieve “fully autonomous vehicles” sometime later this year.[27] For some, this is a scary thought, and for others, this is a dream come true. As insurance companies, local governments, and legislators grapple with the legal consequences of drivers utilizing these driver assistance features, technology continues to advance. These trials will likely have unprecedented consequences on developing governance for the nascent tech of the autonomous vehicle industry, regardless of result.

*Brianna Watts is a second-year day student at the University of Baltimore School of Law. After her first year, Brianna was inducted into the Royal Graham Shannonhouse III Honor Society. Brianna is currently a Law Review Staff Editor, an American Association for Justice Trial Team member, and a 2L Representative for the Criminal Law Association. During her first-year summer, Brianna participated in the Scotland study abroad program and served as a judicial intern to the Honorable Beau H. Oglesby and the Honorable Brian D. Shockley at the Circuit Court for Worcester County in her hometown of Ocean City, Maryland.

[1] Dan Levine & Hyunjoo Jin, Focus: Tesla Braces For its First Trial Involving Autopilot Fatality, Reuters (Aug. 28, 2023, 12:59 PM), https://www.reuters.com/business/autos-transportation/tesla-braces-its-first-trial-involving-autopilot-fatality-2023-08-28/.

[2] Id.

[3] For more information on the Model 3, see Model 3, Tesla, https://www.tesla.com/model3 (last visited Sep. 3, 2023).

[4] Levine & Jin, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] In following the practice of the NHTSA, when referring to vehicles with capabilities “where a traditional driver would no longer be needed,” I use the phrase “automated vehicles,” or vehicles with “automated driving systems.” For more information, see Automated Vehicles for Safety, Nat’l Highway Traffic Safety Admin., https://www.nhtsa.gov/technology-innovation/automated-vehicles-safety#the-topic-safety-timeline (last visited Oct. 18, 2023). 

[11] A Brief History of Autonomous Vehicle Technology, Wired, https://www.wired.com/brandlab/2016/03/a-brief-history-of-autonomous-vehicle-technology/ (last visited Sep. 3, 2023).

[12] Tom Krishner, US Report: Nearly 400 Crashes of Automated Tech Vehicles, Associated Press, June 15, 2022, https://apnews.com/article/self-driving-car-crash-data-ae87cadec79966a9ba56e99b4110b8d6.

[13] Id.

[14] Tesla: A History of Innovation (and Headaches), Forbes (Sep. 29, 2022, 4:12 PM), https://www.forbes.com/sites/qai/2022/09/29/tesla-a-history-of-innovation-and-headaches/.

[15] Abhirup Roy et al., Tesla Wins Bellwether Trial Over Autopilot Car Crash, Reuters (Apr. 22, 2023, 5:43 AM), https://www.reuters.com/legal/us-jury-set-decide-test-case-tesla-autopilot-crash-2023-04-21/.

[16] Id.

[17] For more information on the Model S, see Model S, Tesla, https://www.tesla.com/models (last visited Sep. 3, 2023).

[18] Roy et al., supra note 14.

[19] Id.

[20] Id.

[21] Automated Vehicles for Safety, supra note 10.

[22] Id.

[23] Cherise Threewitt, What Does Tesla’s Full-Self Driving Mode Do?, U.S. News, (Aug. 22, 2023, 4:00 PM), https://cars.usnews.com/cars-trucks/advice/tesla-full-self-driving.

[24] Id.

[25] Standing General Order on Crash Reporting, Nat’l Highway Traffic Safety Admin., https://www.nhtsa.gov/laws-regulations/standing-general-order-crash-reporting (last visited Sep. 3, 2023).

[26] Automated Vehicles for Safety, supra note 10.

[27] Robert Hart, Elon Musk Predicts Tesla Self-Driving Cars Will Arrive ‘This Year’, Forbes (Jul. 6, 2023, 6:13 AM), https://www.forbes.com/sites/roberthart/2023/07/06/elon-musk-predicts-tesla-self-driving-cars-will-arrive-this-year/.