Tribal Sovereign Immunity and Self Defense: Issues of the Day

I have written in this blog before about the case St. Regis Mohawk Tribe v. Mylan Pharmaceuticals Inc. The background is that Allergan transferred title to its patent covering the eye dryness drug Restatis to the tribe when the validity of the patents for the drug were challenged by Mylan before the Patent Trial and Trademark Office's Patent Trial and Appeal Board in an inter partes review proceedings (IPR). Mylan, Teva Pharmaceuticals USA Inc., and Akorn Inc. want to make generics of Restasis, which they could do more quickly if the Allergan/St. Regis patents are invalid. The tribe then moved for dismissal on the grounds of tribal sovereign immunity. The PTAB held that it is not bound by tribal sovereign immunity and that the IPR could go forward.

The reason for Allergan's assignment of its patents to the tribe likely stemmed from the frustration with the IPR process of biopharmas who own patents for brand name drugs like Restasis. IPRs have  invalidated a good number of high-tech and biopharmaceutical patents since the procedure came into existence in 2012. The biopharma industry as a whole has often been critical of the IPR and the PTAB. And yet, all of the amicus briefs filed were in support of Mylan, and Mylan and some biopharmas and commentators called the patent assignment to the tribe "a sham" and tribal sovereign immunity a loose cannon in an already complicated situation.

My interest in the case came from my past employment as the executor director of a tribal association. I know how important tribal sovereign immunity is to tribes, and it has proved to be one of the few business tools they have, as was shown by tribes that utilized it to enter into partnerships for casinos sited on tribal land. But a little over 40 percent of federally-recognized tribes have casinos, some very large and profitable, some very small, while the over 327 remaining haven't been that fortunate. According to the 2016 census, the Native American Poverty Rate is 26.2 percent.

On July 20, the U.S. Court of Appeals for the Federal Circuit affirmed the PTAB ruling. The relatively brief 12-page decision is based upon the issue of whether the PTAB is more like a court or a proceeding of a federal agency ( http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1638.Opinion.7-20-2018.pdf ). Both parties had cited in support of their arguments the Supreme Court's decision in Fed. Maritime Comm'n v. S.C. State Port Auth. 535 U.S. 743 (2002), which held that state sovereign immunity applied in proceedings that were similar to civil litigations and distinguished between these and those of a federal agency. The tribe found appropriate affinity between state and tribal sovereign immunity and contended that the IPR was a substitute to civil litigation, which was an argument made in Congress when the procedure was created by the America Invents Act of 2010. Mylan instead insisted that the IPR is a federal agency proceeding, and the Federal Circuit agreed. The court reached this conclusion because of the wide discretion the PTO director has in deciding whether or not to institute an IPR. The court found that tribal sovereign immunity flourishes, just not before the PTAB, which has the authority not to apply it.

Mylan heralded the decision as a victory against those who try and block access to less expensive generic drugs. Gene Quinn in IP Watchdog found the court's decision "rather seriously flawed" ( http://www.ipwatchdog.com/2018/07/20/federal-circuit-tribal-sovereign-immunity-cannot-asserted-iprs/id=99504/ ). Kevin Noonan, a partner at McDonnell Boehnen Hulbert and Berghoff, Chicago, predicted that the tribe will petition the Supreme Court for review and that the court is likely to grant it.

Self-Defense. The issue of self-defense has come to the fore because of Pinellas County, Fla. police's evoking the state's "stand-your-ground" law in deciding not to arrest a man who shot and killed another.

Markeis McGlockton, his son, and girlfriend stopped at a convenience store on July 19 to buy snacks and parked in a handicapped space without a permit. His girlfriend stayed in the car and was confronted by Michael Drejka who said the car shouldn't be in that spot. McGlockton came out, saw the confrontation, and pushed Drejka to the ground. Drejka pulled out his gun, for which he had a concealed weapon permit, and shot and killed McGlockton. The county police declined to arrest because of the state's stand-your-ground law.

Self-defense is a defense used by people accused of battery, assault, or homicide, claiming the reasonable use of force was necessary to protect the individual and/or members of his/her family from bodily harm. Some states impose a duty to retreat before the application of deadly force. States with a stand-your-ground law do not require the individual claiming self-defense to retreat and allow the use of any reasonable level of force to protect against serious bodily harm or death. Reasonable force is sometimes described as equal force or no more force than is necessary. If a person slaps you, it would be unreasonable to pull out a gun and shoot him.

The Florida law was enacted in 2005 with support from the gun lobby and was amended in 2017 to require the prosecution to prove that stand-your-ground was unnecessary rather than the defense having to prove that it applied.

There were protestors afterwards criticizing the police's lack of action. The attorney for McGlockton's family stated that the stand-your-ground law allows a person who initiates a confrontation and is then struck to immediately use deadly force, claiming a fear he or she would be killed.

The county sheriff who declined to arrest Drejka said that the law, as amended, is subjective, causing the police to have to put themselves in the position of the shooter. Commentators have contended that the emphasis needs to be on "reasonable force." Does a man who is, say, a foot shorter and 60 pounds lighter than the man who strikes him have a reasonable need to use a gun?  The situation is further confused by the stand-your-ground laws that require the prosecutors to justify the law didn't apply, which makes it easier for someone to assert the defense. And then there is the inconsistency of laws from state to state. In one state, if you are the smaller person who is knocked down and has a gun, you would have to retreat and be pursued before you would be justified in using the gun. In the state next door with a no-need-to-retreat law, you could, arguably, depending on a reasonablenees analysis, look up at the bigger man and pull out your gun, claiming you feared you would subsequently be seriously injured or killed. You could also arguably do this if you were the bigger man on the ground.

I have had a few experiences with friends or family members who died with the shooter claiming self-defense. All involved shooters who were well-trained in the use of guns (military or law enforcement) and those who were killed , although they owned guns that were found on the scene, who were untrained. All of the shootings occurred in no-need-to-retreat states, and the shooters were either not arrested or acquitted. 

It is, admittedly, a complicated situation involving numerous factors. In all of them, someone dies and a family grieves. If the laws are as suggestive as the county police officer claims the one in Florida is, that is fraught with peril. In the Florida case, it is now up to the state's attorney to decide whether or not to convene a grand jury. So that story, at least, is unresolved.