Clinic Students Argue Case (McLin v. Ard) in Fifth Circuit Court of Appeals

On January 6, 2017, William & Mary Law School's Appellate and Supreme Court Clinic argued the case McLin v. Ard in the United States Court of Appeals for the Fifth Circuit.  The Clinic represents Plaintiff-Appellant Royce McLin. The oral argument can be heard here (.mp3 file).

Mr. McLin posted anonymous Facebook comments criticizing several elected officials on a local parish council. The comments were made in response to a newspaper editorial concerning the parish council's misuse of public funds. On the basis of the Facebook comments, three parish council members swore out criminal defamation affidavits against Mr. McLin and three warrants were issued for his arrest. On the same day the warrants were issued, Mr. McLin surrendered himself at the local sheriff's station where he signed a misdemeanor summons promising to appear in court.

Mr. McLin sued members of the parish council and sheriff's office for violations of his First and Fourth Amendment rights. The district court granted the defendants' motion to dismiss, holding that Mr. McLin was not seized under the Fourth Amendment when he turned himself in at the sheriff's office.  

The Supreme Court has long held that a person need not be subject to a full-fledged arrest to be seized under the Fourth Amendment. Instead, a person is seized under the Fourth Amendment when he submits to a law enforcement agent's show of authority. Such a seizure occurs when a reasonable person would not feel free to terminate the encounter with law enforcement agents. Under that standard, the Clinic argued that Mr. McLin was seized when he surrendered at the sheriff's office rather than wait for the execution of the three outstanding arrest warrants.

The Clinic also argued that the parish council and sheriff's office officials violated Mr. McLin's First Amendment rights by retaliating against him for his constitutionally protected speech. Mr. McLin was charged with criminal defamation under a Louisiana statute declared unconstitutional insofar as it punishes public expression about public officials. The Clinic argued that well-settled law precluded Mr. McLin's arrest for his speech, which related to the parish council members' official job performance.

Carrie Mattingly, a third-year law student at William & Mary, argued the case with the support of Emily Hessler, also a third-year law student. To prepare for the oral argument, the students received guidance from several faculty members, including Professors Jeffrey Bellin, Aaron-Andrew Bruhl, Jennifer Franklin, Adam Gershowitz, Rebecca Green, and Tara Grove. Alumnae Melanie Lazor and Candace (Wherry) Terman were primarily responsible for the briefing, which was conducted while they were students at the Law School. Students in the clinic practice under the supervision of Adjunct Professor Tillman J. Breckenridge, a partner at Bailey & Glasser LLP and director of the Appellate and Supreme Court Clinic.

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