Amicus Brief: Axon Enterprise, Inc. v. Federal Trade Commission, et al.

AMICUS BRIEF SUMMARY

NCLA filed an amicus curiae brief in the U.S. District Court for the District of Arizona in support of Axon Enterprise Inc. in the body camera company’s fight to keep its constitutional claims against the U.S. Federal Trade Commission (FTC) in federal court. NCLA’s brief solely addresses the “Tentative Ruling” issued by the Court, which concluded that federal courts do not have jurisdiction to evaluate a facial challenge brought under the U.S. Constitution.

As NCLA has argued in its ongoing Lucia, Cochran, and Gibson cases against the U.S. Securities & Exchange Commission (SEC), defendants have a due process right not to endure hearings in front of constitutionally defective tribunals. The Supreme Court ruled as much in Lucia v. SEC in 2018. Axon Enterprise is trying to vindicate a similar right against FTC and to do so it is relying on rulings such as the preliminary injunction that NCLA obtained for client Michelle Cochran in the U.S. Court of Appeals for the Fifth Circuit.

The District of Arizona should retain jurisdiction to discharge its Article III powers and address these threshold issues going to the constitutional defects in the tribunal itself, which FTC has no authority to address and where delay would irreparably harm Axon.

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CASE: Axon Enterprise, Inc. v. Federal Trade Commission, et al.

DECIDING COURT: The United States Court of Appeals for the Ninth Circuit

ORIGINAL COURT: The United States District Court for the District of Arizona

DOCUMENT: (1) No. 2:20-cv-00014-PHX-DWL; (2) 20-15662

ATTORNEY FOR AMICUS CURIAE: Aditya Dynar

FILED: (1) March 27, 2020; (2) May 8, 2020

CASE DOCUMENTS

May 8, 2020 | Brief Amici Curiae of the New Civil Liberties Alliance and TechFreedom in Support of Plaintiff-Appellant and Reversal
Click here to read the full document.
April 8, 2020 | Axon’s Motion for Preliminary Injunction Is Denied as Moot
Click here to read the full document.
March 27, 2020 | Brief Amicus Curiae of the New Civil Liberties Alliance in Support of Plaintiff
Click here to read the full document.

PRESS RELEASES

May 12, 2020 | NCLA’s Joint Amicus Brief in 9th Cir. Challenges Decision Rejecting Constitutional Claims Versus FTC

Washington, DC (May 12, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group filed a joint amicus brief in the United States Court of Appeals for the Ninth Circuit in Axon Enterprise Incorporated v. Federal Trade Commission, et al. The brief filed in conjunction with TechFreedom, a public policy think tank based in Washington, DC, asks the Court to reverse the district court and find subject-matter jurisdiction over Axon’s constitutional claims against the FTC.

The appeal by Axon (f/k/a TASER Int’l) seeks to avoid irreparable harm to the company and the body camera industry. Amici argue in the brief that Axon is entitled to a hearing before an Article III court and should not have to endure FTC’s internal adjudicative process (wherein FTC acts as prosecutor, judge, and jury) on Axon’s claims unrelated to antitrust law. Forcing Axon into such a hearing, amici contend, violates, inter alia, the Due Process Clause of the Fifth Amendment.

The main issue in the case is whether the FTC Act requires constitutional claims like those asserted here to be brought first to the FTC’s in-house adjudicatory process. The FTC Act’s purpose and design demonstrate that Congress intended to prevent delay in FTC’s antitrust enforcement, but not to grant FTC exclusive jurisdiction over constitutional claims.

In 2018 the U.S. Supreme Court held in Lucia v. SEC that defendants have a due process right to not be subjected to hearings in front of constitutionally defective tribunalsNCLA is presenting the same argument in courts across the country in its ongoing Lucia, Cochran, and Gibson cases against the U.S. Securities & Exchange Commission (SEC). Axon Enterprise is now trying to vindicate a similar due process right against FTC by relying on rulings such as the preliminary injunction that NCLA obtained for client Michelle Cochran in the U.S. Court of Appeals for the Fifth Circuit last fall.

The decision by the district court would mean Axon’s constitutional case against FTC and its Administrative Law Judges would linger unaddressed for years to come. The Ninth Circuit should not tolerate FTC’s desire to bury all constitutional claims against the agency until it has run a company through its administrative ringer. No rational legislature would choose this process for the vindication of constitutional rights.

NCLA released the following statements:

“NCLA filed in support of Axon because constitutional rights should not be subject to bureaucratic delay and obfuscation. The federal district courts were put on earth to vindicate those constitutional rights. Congress has given no direction to strip them of jurisdiction, so Axon and everyone in a similar position should have an independent judiciary available to determine whether the Constitution has been followed.”

–John J. Vecchione, Senior Litigation Counsel, NCLA

“Should federal courts stand aside and do nothing while a federal agency thoroughly bullies and drags a company through its administrative-review process that is famously rigged against the company? The answer ought to be a resounding “No!” because constitutional claims that ask federal courts to decide whether the agency’s process is lawful properly belong in federal court.”

Adi Dynar, Litigation Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

ABOUT TECHFREEDOM 

TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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March 31, 2020 | NCLA Urges AZ District Court to Reverse Tentative Ruling Against Body Camera Co.

Washington, DC (March 31, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights organization filed an amicus curiae brief in the U.S. District Court for the District of Arizona in support of Axon Enterprise Inc. in the body camera company’s fight to keep its constitutional claims against the U.S. Federal Trade Commission (FTC) in federal court. NCLA’s brief solely addresses the “Tentative Ruling” issued by the Court, which concluded that federal courts do not have jurisdiction to evaluate a facial challenge brought under the U.S. Constitution.

On March 10, 2020, the Court issued a Tentative Ruling stating that the case should be dismissed and that Axon should first have to exhaust FTC’s adjudicatory process. This decision by the court would mean Axon’s constitutional claims against the very legitimacy of the FTC and its Administrative Law Judges would remain unaddressed for years.

As NCLA has argued in its ongoing Lucia, Cochran, and Gibson cases against the U.S. Securities & Exchange Commission (SEC), defendants have a due process right not to endure hearings in front of constitutionally defective tribunals. The Supreme Court ruled as much in Lucia v. SEC in 2018. Axon Enterprise is trying to vindicate a similar right against FTC and to do so it is relying on rulings such as the preliminary injunction that NCLA obtained for client Michelle Cochran in the U.S. Court of Appeals for the Fifth Circuit.

The District of Arizona should retain jurisdiction to discharge its Article III powers and address these threshold issues going to the constitutional defects in the tribunal itself, which FTC has no authority to address and where delay would irreparably harm Axon.

A motion hearing is scheduled for Wednesday, April 1, 2020, before Judge Dominic W. Lanza of the U.S. District Court for the District of Arizona concerning the Court’s subject matter jurisdiction. Due to the pandemic and the fact that some counsel in this case are not based in Arizona, it was reset as a telephonic hearing.

NCLA released the following statements:

“The FTC retains the power to put a company through the administrative ringer and then either force settlement or, if no settlement is forthcoming, drop the matter without ruling—avoiding the constitutional issues raised. We think it is vital that any American faced with an unconstitutionally constituted tribunal get a hearing before an impartial Article III judge rather than be subject to a process that is itself the injury, and then, years later, maybe, get an appellate court ruling that you were right all along but you have suffered the injury with no means of redress.”

–John J. Vecchione, Senior Litigation Counsel, NCLA

“FTC complained to its own administrative law judge after the company had filed suit in federal court. FTC’s action, it now claims, prevents the federal court from deciding the constitutional issues presented by the company. Such procedural antics should not be able to strip the federal courts’ otherwise ‘unflagging obligation’ to adjudicate properly-presented constitutional questions.”

Adi Dynar, Litigation Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

For more information visit us online at NCLAlegal.org.

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OPINION