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NEW & NOTEWORTHY

  
  • The U.S. Supreme Court issued three new opinions on May 23, 2016.

    New Evidence Vindicates Death Penalty Convict’s Batson Claim

    Timothy Foster admitted to sexually assaulting and killing Queen Madge White back in 1986. At trial, he argued that the prosecution’s decision to strike all four black prospective jurors violated the bar on racial strikes set in Batson v. Kentucky, 476 U.S. 79 (1986), which the trial court rejected based on neutral arguments provided by the prosecution, and was affirmed on appeal to the Georgia Supreme Court. Decades later, Foster obtained the prosecutor’s trial documents, including jury selection documents showing how the prosecution singled out black prospective jurors, and again raised his Batson challenge in a state habeas proceeding. The trial court again rejected the claim, based on res judicata and a failure to show purposeful discrimination under Batson. The Georgia Supreme Court denied his appeal for having no “arguable merit.” The U.S. Supreme Court, in an opinion by Chief Justice Roberts, reversed and remanded. First, the Court decided that it had subject matter jurisdiction over the case because the trial court’s basis to deny relief on res judicata grounds was not an adequate and independent state law ground from the Batson challenge, which relied on the new evidence to supersede res judicata. Second, the Court held that the new documents “plainly belie the State’s claim that it exercised its strikes in a ‘color-blind’ manner,” and thus it was erroneous to not grant habeas relief. Justice Alito concurred, stating that while he agreed that it appeared likely that the Georgia Supreme Court’s ruling was not entirely based on state res judicata law, there was a chance it was not, which was for Georgia courts to decide. Justice Thomas filed a dissent, arguing that the majority “should have sought clarification that the resolution of a federal question was implicated in the Georgia high court’s decision” before ruling, and that the new evidence “has limited probative value” that did not overcome the deferential review afforded under Batson. A link to the decision in Foster v. Chatman is here.

    Court Upholds Virginia’s Redistricting Plan

    A unanimous Court, in a short majority opinion by Justice Breyer, held that certain GOP congressmen lacked standing to appeal a determination that Virginia’s 2013 redistricting plan unconstitutionally gerrymandered a district that none of the congressmen represented. Noting that parties before the Court needed to demonstrate an “injury in fact” in order to press the appeal, the Court found that one congressman had no standing because he had decided to switch districts regardless of the outcome of the case, and two others presented no evidence that their prospects at re-election were in any way hindered by the plan. The result paves the way for the Commonwealth’s 2016 plan to go forward, which has already been approved by the district court. A link to the opinion in Wittman v. Personhuballah is here.

    EEOC Limitations Period Runs From Date Of Resignation, Not Agreement

    In Green v. Brennan, after Marvin Green accused the Postal Service of denying him a promotion because he was black, the Postal Service accused him of the crime of intentionally delaying the mail. The parties resolved their differences in a settlement agreement signed on December 16, 2009, which gave Green the choice to resign or relocate in exchange for the Service’s agreement not to pursue criminal charges. Green chose to resign on February 9, 2010. On March 22, 2010, he reported an unlawful constructive discharge to the EEOC, as a prerequisite to filing a civil rights claim in court. His court claim was dismissed, as 29 CFR sec. 1614.105(a)(1) requires that the EEOC report had to made within 45 days of the “matter alleged to be discriminatory,” and the agreement was deemed to be the triggering event, not his resignation—something the Circuits had split on. The Court, in an opinion by Justice Sotomayor, reversed, holding that the triggering date was Green’s resignation, and thus he satisfied the reporting requirement. Relying on the “standard rule” for limitations periods, the majority reasoned that the resignation marking the point where the employee had a “complete and present cause of action” since constructive discharge required that the employee actually resign or be discharged. Justice Alito, concurring, argued that the majority’s bright-line rule ignored precedent holding that an actual discriminatory act must trigger the limitations period, although here the evidence showed that the Service intended to force Green to resign, and thus his resignation qualified as such an act. Justice Thomas dissented, arguing that Green’s choice to resign was not a discriminatory “matter” under the plain language of the regulation. A link to the opinion is here. A link to the opinion is here.



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  • p>Speedy Trial Right Does Not Apply Post-Conviction After pleading guilty to jumping bail, Brandon Betterman sat in jail for 14 months before he was finally sentenced. He argued that this delay violated his Sixth Amendment right to a speedy trial. The Montana Supreme Court affirmed the conviction and sentence, reasoning that the right to a speedy trial did not apply to post-conviction, pre-sentencing delays, and the U.S. Supreme Court unanimously affirmed in an opinion by Justice Ginsburg. The Court held that the right to a speedy trial attaches upon arrest or formal accusation, and detaches upon conviction, when the “presumption of innocence” no longer applies. The Court also noted that due process may serve to protect against unreasonable post-conviction/pre-sentencing delays. Justice Sotomayor filed a concurrence arguing that a due process claim in these circumstances, had it been raised, should be analyzed under the test presented in Barker v. Wingo, 407 U.S. 514 (1972). Justice Thomas, joined by Justice Alito, filed a concurrence questioning the application of Barker in this context. A link to the opinion in Betterman v. Montana is here.

    A Prevailing Party Seeking Fees Under Civil Rights Act Need Not Win On The Merits

    Title VII of the Civil Rights Act permits a “prevailing party” to recover its attorneys’ fees. In CRST Van Expedited, Inc. v. EEOC, the EEOC brought suit against a trucking company for alleged sexual harassment of its female employees, identifying over 250 aggrieved women. Over time, the district court dismissed the claims as to all of these women, some as a discovery sanction, others for being beyond the statute of limitations, violations of statutory presuit requirements, and other reasons. On appeal, the Eighth Circuit reversed only as to two women. The EEOC dismissed the claims as to one, settled with the company over the other. The company then moved for fees, and was awarded over $4 million. On a second appeal, the Eighth Circuit held that fees could only be awarded where there had been a victory on the merits, as opposed to a dismissal for statute of limitations grounds or lack of jurisdiction. Resolving a split among the circuits on the issue, the U.S. Supreme Court, in a unanimous opinion by Justice Kennedy, reversed, holding that “common sense” compels the conclusion that a win is a win, regardless of whether it was on the merits or not, and nothing in the statute indicated otherwise. The Court also declined to decide whether some sort of preclusive judgment was necessary, as the EEOC failed to raise that argument before the lower court. Justice Thomas concurred, arguing that the Court’s ruling in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), relied upon by the majority, was in error as it would award fees to plaintiffs on a different basis than defendants, and that he would decline to extend it any further. A link to the opinion is here.

    Third-Degree Arson An “Aggravated Felony” For Deportation Purposes

    Luna Torres pled guilty to third-degree arson under New York law, while he was a lawful permanent resident. When immigration officials learned of the conviction, they moved to remove him, and argued that he was not eligible for discretionary relief because he was convicted for an “aggravated felony” under 8 U.S.C. sec. 1101(a)(43), which lists the federal crime against arson that includes a requirement that the arson affect interstate or foreign commerce. The immigration courts affirmed Torres’s removal, and the U.S. Supreme Court, by a five-member majority opinion authored by Justice Kagan, affirmed. The majority held that if the state crime included the same elements as a federal crime listed under Section 1101(a)(43) but for the interstate/foreign commerce element, the offense was an “aggravated felony” for deportation purposes. The majority reasoned that the interstate/foreign commerce element was merely jurisdictional in nature, not substantive, and it was clear that the section meant to include serious state crimes as well as federal crimes. Justice Sotomayor, joined by Justices Thomas and Breyer, dissented, arguing that the interstate/foreign commerce element should not be so easily discarded, and that prior decisions have required the state law to match every element of the federal offense to be an “aggravated felony.” A link to the decision in Luna Torres v. Lynch is here.



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  • Summary Denial for Habeas Writ a Decision “On the Merits” for AEDPA Review

    When California changed its law to deny prison-gang members future “good time” credits, one of those members, Hinojosa, filed a state habeas petition, claiming the law violated the Constitution’s prohibition on ex post facto laws. The state trial court denied the petition without prejudice on the basis that it was brought in the wrong venue. He then sought an original habeas writ to the California Supreme Court, which, without opinion, summarily denied relief. Hinojosa next pressed his claim in the federal district court, which denied it under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) under the deferential standard the Act provides for state court decisions “on the merits.” The Ninth Circuit reversed, determining that the state courts’ actions were not “on the merits” and thus the district court used the wrong review standard. The U.S. Supreme Court, in a per curiam decision, reversed, holding that the California Supreme Court’s denial could not have been grounded on the same venue issue as the trial court, since it could entertain the original writ, and also noted that the appellate court’s language of dismissal was different. Therefore, the Act’s deferential review standard should have been applied by the Ninth Circuit. Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that it was possible that the California Supreme Court denied the petition because it was originally filed in the wrong venue, and the majority’s distinctions were too “flimsy” to warrant the Act’s deferential review. A link to the decision in Kernan v. Hinojosa is here:

    http://www.supremecourt.gov/orders/courtorders/051616zor_2cp3.pdf

    False Consumer Report Does Not Automatically Grant Standing to Consumer to Sue

    In Spokeo, Inc. v. Robins, Robins filed a class action against a consumer reporting agency when he discovered its report for him contained false information. In his complaint, he alleged that the agency’s inaccuracies violated the Fair Credit Reporting Act, which violated his statutory rights and that the harm was individualized. The district court dismissed the lawsuit as failing to have alleged an injury in fact, the Ninth Circuit reversed, and the Court, in a 6-justice majority opinion authored by Justice Alito, vacated and remanded, holding that the Ninth Circuit failed to address whether the alleged injury was sufficiently “concrete.” The mere fact that the Act was violated, and the Act authorized a private suit to vindicate it, did not automatically provide standing to sue. At a minimum, Robins needed to allege a sufficient risk of harm to have standing. Justice Thomas submitted a concurrence explaining how the requirements of common law courts informed the modern standing doctrine, and prevented Robins from suing to vindicate duties the reporting agency owed to the public without a showing of concrete and particular harm. Justice Ginsburg, joined by Justice Sotomayor, dissented, arguing that Robins had alleged a sufficiently concrete harm when the agency’s report portrayed him as being far more successful than he was, thus hindering his ability to get a job. A link to the opinion is here:

    http://www.supremecourt.gov/opinions/15pdf/13-1339_f2q3.pdf

    “Actual Fraud” In Bankruptcy Includes Fraudulent Conveyance

    After a company racked up large amounts of debt, one of its directors then drained the company of its assets and sent those assets to other firms he controlled. One of its creditors sued, alleging that the transfers of assets were actual fraud. The company filed for Chapter 7 bankruptcy, and again the creditor argued that the transfers were fraudulent and “actual fraud” that was not dischargeable. The district court and the Fifth Circuit both held that there was no “actual fraud” because there were no misrepresentations made to the creditor. The U.S. Supreme Court, in an opinion by Justice Sotomayor, reversed, holding that the term “actual fraud” also included fraudulent conveyance schemes even where no misrepresentations were made. The majority reasoned that this interpretation comported with the historical meaning of fraud, and did not make other bankruptcy provisions duplicative. Justice Thomas dissented, arguing that the statute requires the debt be “obtained by” actual fraud, and that limitation precludes its application to fraudulent conveyances. A link to the decision in Husky International Electronics, Inc. v. Ritz is here:

    http://www.supremecourt.gov/opinions/15pdf/15-145_nkp1.pdf

    Jurisdiction Under the Securities Exchange Act Same as Federal Question Jurisdiction

    The Securities Exchange Act grants district courts exclusive jurisdiction over cases “brought to enforce any liability or duty created by [the Act] or the rules or regulations thereunder.” Seeking to avoid the federal courts, Manning, a stockholder in Escala Group, Inc., a publicly-traded company, brought only state law claims against certain financial institutions that devalued Escala’s stock through naked short sales of its stock. His complaint referenced the Act’s prohibition of such sales, but did not explicitly bring any claims thereunder. The financial institutions removed the case to federal court, and Manning moved to remand. The Third Circuit held that remand was required, and the U.S. Supreme Court, in a unanimous opinion by Justice Kagan, affirmed. The Court held that the jurisdictional language of the Act was commensurate with that of federal question jurisdiction granted in 28 U.S.C. sec. 1331. Thus, federal jurisdiction exists when a claim “arises under” the Act, either because the claim is brought explicitly under the Act, or a state law claim requires proof of a violation of the Act that is substantial, disputed, and capable of resolution by the federal court without disrupting the federal/state balance. Justice Thomas, joined by Justice Sotomayor, concurred, arguing that federal jurisdiction should exist any time a claim depends on breach of the Act’s requirements, and rejecting the application of Section 1331’s “arising under” test. A link to the opinion in Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning is here:

    http://www.supremecourt.gov/opinions/15pdf/14-1132_4g15.pdf

    U.S. Supreme Court Asks Parties to Work Out Contraceptive Issue

    The latest case involving the Affordable Care Act ended with a fizzle, perhaps due to an impending 4-4 split in opinion by the Justices. The issue in Zubik v. Burwell was whether the requirement that religious objectors to the contraceptive mandate submit a notice violated the exercise of religion under the Religious Freedom Restoration Act. The Court declined to decide the issue, however, and in a per curiam opinion vacated and remanded the collected cases to allow the parties an opportunity to work the issue out. In supplemental briefs filed after oral argument, at the Court’s invitation, the parties represented that an arrangement could be made that would permit religious objectors to avoid the notice requirement while permitting the government to seamlessly provide contraceptive coverage, and the Court took the parties up on the suggestion. Justice Sotomayor, joined by Justice Ginsburg, filed a concurrence reminding the lower courts that this was not a decision “on the merits” and should not be interpreted as such. A link to the opinion is here:

    http://www.supremecourt.gov/opinions/15pdf/14-1418_8758.pdf

    Special Counsel Use of Attorney General Letterhead Does Not Violate Fair Debt Collection Practices Act

    In Ohio, debts owed to state agencies are collected through its Attorney General’s office, who in turn hires independent contractors as “special counsel” to recover those debts. Special counsel use the AG’s letterhead when communicating with debtors, two of whom sued under the Act, alleging that the communications were deceptive and misleading. The district court dismissed the claims on the basis that the special counsel were state actors entitled to the Act’s exemptions, but the Sixth Circuit reversed, holding that they were not state actors and that the use of the letterhead was misleading. In Sheriff v. Gillie, the U.S. Supreme Court, in a unanimous opinion by Justice Ginsburg, reversed. The Court assumed that special counsel were not state actors, but held that the use of the AG’s letterhead was not false or misleading since the AG’s office worked with the special counsel and specifically authorized the sending of the letters. A link to the opinion is here:

    http://www.supremecourt.gov/opinions/15pdf/15-338_lkgn.pdf



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  • Hobbs Act Prohibits Bribery Between Co-Conspirators

    The question in Ocasio v. United States was whether a conspiracy to obtain property “from another” included property obtained from co-conspirators. In this case, a police officer created a kickback scheme in which he would route vehicles involved in accidents to a repair shop in return for a payment from the shop owner. The officer argued that since he and the shop owners were in cahoots, they did not obtain property “from another” outside the conspiracy, and thus did not violate the Act. Justice Alito, for a 5-3 majority, affirmed the conviction, noting that basic principles of conspiracy law did not require each conspirator to meet all elements of the asserted crime—they only needed to work toward that goal. In this case, the officer worked toward the conspiracy of obtaining property “from another,” being the shop owner, and the shop owner aided in that offense. Justice Thomas dissented, arguing that Evans v. United States, which held that the Act’s prohibition of “extortion” included bribery, was wrongly decided, and the kickback scheme in this case should not have been covered by the Act. Justice Breyer filed a concurrence noting that he agreed with Justice Thomas’ sentiments, but voted with the majority since the officer had not argued to overturn Evans. Justice Sotomayor, joined by Chief Justice Roberts, separately dissented, arguing that “from another” should not have been interpreted to include co-conspirators. A link to the opinion is here.



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  • Maryland Court: Unregistered Foreign LLCs Can File Suit, Then Cure Status To Maintain It

    Resolving a question that split a Maryland circuit court and the Court of Special Appeals, the Maryland Court of Appeals held in A Guy Named Moe, LLC v. Chipotle Mexican Grill of Colorado, LLC, that while an unregistered foreign LLC cannot “maintain” a lawsuit under Maryland law, it can file a lawsuit and then cure its registration status to prevent dismissal. Now-retired Judge Battaglia, for a unanimous Court, relied on the 1909 decision in Kendrick & Roberts v. Warren Bros. Co., which interpreted the word “maintain” to not include the initiation of a lawsuit under a prior version of Maryland’s foreign corporation law. The Court also held that a business competitor does not have standing as a “person aggrieved” by a special zoning exception when the competitor’s property is “not within direct view” of the property excepted, without a showing of “special aggrievements.” In other words, since Moe’s objection to Chipotle’s special exception was “simply a matter of competition,” Moe’s lacked standing to challenge the exception. A link to the April 26, 2016 opinion is here.

    Maryland Adopts The Doctrine Of Offensive Non-Mutual Collateral Estoppel

    On April 26, 2016, the Maryland Court of Appeals formally announced that it was adopting the doctrine of offensive non-mutual collateral estoppel, and that it can be invoked to grant preclusive effect to an administrative order. Offensive non-mutual collateral estoppel permits a plaintiff to establish through estoppel a fact that was previously litigated adversely to the defendant by another plaintiff. The Court of Special Appeals in Culver v. Md. Ins. Comm’r, 175 Md. App. 645 (2007) had already approved of the doctrine’s use, and the Court of Appeals, in a unanimous opinion by Chief Judge Barbera, made it official. The Court further held that administrative orders (in this case, a fine) constituted “final orders” for the purposes of the doctrine where the administrative agency acts in a “judicial capacity.” Judge Atkins filed a concurrence noting discomfort with the punitive nature of the fine. A link to the opinion in Garrity v. Md. State Bd. of Plumbing is here.



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  • U.S. Supreme Court Decision, April 26, 2016: Employer’s Perception Sufficient For A 1983 Claim

    In Heffernan v. City of Patterson, a police officer was demoted when his supervisors believed that he was working to aid the campaign of an opponent to the current mayor. It turns out instead that the police officer was simply delivering a campaign sign to his bedridden mother at her request, and admittedly was not engaged in any First Amendment protected speech. The police officer sued under 42 U.S.C. sec. 1983 claiming that the demotion deprived him of his constitutional rights, but the lower courts dismissed his claims since he had not engaged in any protected speech. The Court, in a majority opinion by Justice Breyer, reversed, holding that the employer’s decision to demote based on the erroneous (and assumed) perception that the officer was engaging in protected speech was sufficient to maintain the claim. The Court did leave open the possibility that, upon remand, the employer’s decision to demote Heffernan could be shown to be content neutral and thus permissible. Justice Thomas, joined by Justice Alito, dissented, arguing that there could be no cause of action under Section 1983 where no constitutional rights had been violated.



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  • The U.S. Supreme Court issued three new opinions on April 20, 2016.

    Court Rejects Republican Challenge To Redrawn Legislative Districts

    Last year, the Court upheld Arizona’s use of an independent redistricting commission to redraw state legislative districts under the Voting Rights Act. The question in this case was whether the commission’s resulting plan to redraw the districts, which was approved by the two Democrats and the Independent on the commission over the objections of the two Republican members, complied with the same Act. A three-judge district court upheld the plan 2-1, and the Court, in a unanimous opinion by Justice Breyer, affirmed. While the Act requires that districts be equal in population, a deviation under 10% is considered too minor to be a violation. Since the deviations in Arizona’s plan were only 8.8%, the challengers had to prove that the deviation was a political effort to help the Democratic Party. The Court found that the commission engaged in a “good-faith” effort to comply with the Act, and there was no preponderance of the evidence that “illegitimate considerations were the predominant motivation behind the plan’s deviations from mathematically equal district populations.” A link to the decision in Harris v. Arizona Independent Redistricting Commission is here:

    http://www.supremecourt.gov/opinions/15pdf/14-232_ihdj.pdf

    Statute Directing Relief In A Pending Civil Case Does Not Violate Separation Of Powers

    Over 1,000 victims of state-sponsored terrorism sued Iran under 28 U.S.C. sec. 1605A and obtained judgments. Collecting on those judgments proved difficult for many years, until 2012, when the President issued an Executive Order freezing certain assets allegedly held by Iran’s central bank in New York, and Congress passed a law permitting those frozen assets to be subject to collection “to satisfy any judgment” against Iran for acts of terrorism. Based on the new law, the victims were able to obtain orders to release those assets. The Iranian bank objected, arguing that Congress’ law effectively directed the Courts to render a particular ruling awarding the assets in violation of separation of powers. The Court, in a 6-2 decision authored by Justice Ginsburg, affirmed the constitutionality of the law. Starting with the principle stated in Marbury v. Madison that it is the Court’s “province and duty . . . to say what the law is,” the majority held that a retroactive civil law passed by Congress directing courts to apply newly enacted, outcome-altering standards was not constitutionally prohibited. The Court also rejected the premise that a law passed with regard to a single pending case was suspect, as the language of the law itself addressed “any judgment” instead of just the judgments at issue. Finally, the majority (without Justice Thomas) indicated that the law was an “exercise of congressional authority regarding foreign affairs” that the Court should give deference to. Chief Justice Roberts, joined by Justice Sotomayor, dissented, arguing that the law effectively decided the case before the judiciary, who merely “presided over the fait accompli,” and thus usurped the judicial role in violation of the Constitution. A link to the opinion in Bank Markazi v. Peterson is here:

    http://www.supremecourt.gov/opinions/15pdf/14-770_9o6b.pdf

    Application Of Incorrect Sentencing Range Can Alone Be Grounds For Reversal

    In Molina-Martinez v. United States, the petitioner pled guilty to a felony and was sentenced to 77 months in jail based on a range of 77-96 months proscribed by the Sentencing Guidelines. On appeal, the petitioner noted that the actual Guideline range for his crime was 70-87 months instead. The Fifth Circuit agreed that the district court used the wrong sentencing range, but declined to award relief because his sentence was within the correct range, and he had not offered any “additional evidence” showing that the incorrect range used in fact affected his sentence. A unanimous Court, in an opinion by Justice Kennedy, reversed, holding that a petitioner need not present “additional evidence” beyond noting what the sentencing range should have been in order to obtain a remand for resentencing. In other words, even if the ultimate sentence was within the correct range, the use of the incorrect range itself could qualify as a violation of the convict’s substantive rights. Here, since the district court conspicuously gave the lowest amount of jail time allowed with little comment, there was a reasonable probability that the petitioner would have received less jail time had the accurate range been used. Justice Alito, joined by Justice Thomas, concurred in part and in the judgment, agreeing that the Fifth Circuit’s test was incorrect and that the wrong range probably did lead to a higher sentence, but declined to speculate how future sentencing judges might apply the Guidelines. A link to the opinion is here:

    http://www.supremecourt.gov/opinions/15pdf/14-8913_5h25.pdf



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  • Fourth Circuit Allows Transgender Student To Make Claim Under Title IX

    On April 19, 2016, the U.S. Court of Appeals for the Fourth Circuit became the highest federal court to rule that a transgender student can properly state a claim under Title IX for being prohibited from using bathrooms for the gender that student identifies with. In G.G. v. Gloucester County School Board, G.G. was a transgendered boy, meaning that he was biologically female but identified as male. At first his high school permitted him to use the single-stall bathroom in the nurse’s office, but eventually he found that stigmatizing and sought to use the boys’ bathrooms instead. Upon receiving complaints, the school board entered a policy restricting use of school restrooms and locker rooms by biological gender only. G.G. sued under Title IX, and the district court dismissed the claim, as well as denying injunctive relief. Judge Floyd’s opinion, joined by Senior Judge Davis, reversed. While acknowledging that Title IX’s language appeared to clearly apply to prohibit discrimination as between biological males and females, it was ambiguous as to how it applied to transgender individuals like G.G. Accordingly, where a law is ambiguous, the court determined that the Department of Education’s regulations construing Title IX mandate that schools treat transgender students “consistent with their gender identity” was entitled to deference under Auer v. Robbins, 519 U.S. 452 (1997). Judge Floyd further held that the district court improperly excluded hearsay and other potentially inadmissible evidence in denying the request for an injunction, and also declined to grant G.G.’s request that a different district judge be assigned to the case on remand. Senior Judge Davis penned a concurrence stating why he believed the Fourth Circuit would have been on “solid ground” to grant the injunction without a remand. Judge Niemeyer dissented, arguing that the majority’s opinion “completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes,” and “overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect.” A link to this important decision, which may be headed to the U.S. Supreme Court, is here: http://www.ca4.uscourts.gov/Opinions/Published/152056.P.pdf



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  • The U.S. Supreme Court issued a new opinion on April 18, 2016.

    The Armed Career Criminal Act increased the prison sentence for those who had been thrice (or more) convicted of a “violent felony.” The definition of “violent felony” contained a residual clause that the Court last year, in Johnson v. United States, struck down as being void for vagueness. Gregory Welch was sentenced under the Act’s residual clause and appealed that conviction to the Eleventh Circuit pro se. Three weeks before the Court handed down Johnson, the Eleventh Circuit denied Welch’s appeal, and he appealed again, pro se, arguing that the rule in Johnson was substantive and therefore retroactive. In an 7-1 decision by Justice Kennedy, the Court agreed with Welch. Acknowledging that a substantive rule “alters the range of conduct or the class of persons that the law punishes,” in contrast to a non-retroactive procedural rule that “regulates only the manner of determining the defendant’s culpability,” the Court held that the striking of the residual clause changed the reach of the Act’s punishment scheme, and thus was substantive and applied in Welch’s favor. Justice Thomas dissented, arguing that Welch had not appealed the issue of vagueness and thus it was procedurally not before the Court, and that the Court’s holding improperly expanded the scope of “substantive” rules beyond the original principles established by Justice Harlan over 40 years ago. A link to the decision in Welch v. United States is here: http://www.supremecourt.gov/opinions/15pdf/15-6418_2q24.pdf



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  • The CHARITY Act (“Charities Helping Americans Regularly Throughout the Year” S. 2750) was introduced by Senators Thune (R-S.D.) and Wyden (D-Ore) as a bi-partisan bill to encourage charitable giving. A major component of the bill is to expand the definition of “eligible charity” to include Donor Advised Funds (“DAFs”) for purposes of the IRA rollover law. Under the CHARITY Act, an IRA owner at least 70-and-a-half years old could exclude from gross income up to $100,000 per year in distributions made directly from the IRA to DAFs and certain other public charities. In addition, the investment tax for private foundations, currently a variable rate of 1% to 2%, would be simplified as a flat 1% rate.

    As stated by Senator Wyden in the Senate Press Release introducing the CHARITY Act (April 6, 2016): “Charitable giving is core to our society and benefits millions of Americans each year. This bipartisan bill improves the tax code making it easier for families to support their favorite charities and ensures that charitable organizations are best equipped to accomplish their missions.” The CHARITY Act also expresses the nonbinding “Sense of the Senate” that “encouraging charitable giving should be a goal of tax reform… Congress should ensure that the value and scope of the deduction for charitable contributions is not diminished during a comprehensive rewrite of the tax code.”



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  • Divided Court Preserves Circuit Split On Spouse’s Defense Under Equal Credit Opportunity Act

    In a one-sentence ruling, the Court affirmed the decision of the U.S. Court of Appeals for the Eighth Circuit in Hawkins v. Community Bank of Raymore, leaving a circuit-split unresolved in its wake. In that case, PHC Development, LLC was the borrower under a note, which was unconditionally guaranteed by Gary Hawkins, one of PHC’s owners, and Valerie Hawkins, his wife. When PHC defaulted, the bank sued the wife only. The wife claimed the bank’s actions constituted marital status discrimination under the Equal Credit Opportunity Act. The Sixth Circuit had previously agreed that spousal guarantors had standing under the Act to raise such a challenge, but the Eighth Circuit disagreed, holding that the Act unambiguously excluded guarantors. A link to the affirmance is here.



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  • U.S. Supreme Court Affirms Breadth Of Second Amendment Without Dissent

    One of the big question marks about the passing of Justice Scalia concerned the fate of the Second Amendment, given that Scalia’s majority opinion in D.C. v. Heller had a narrow 5-justice majority. In a unanimous per curiam opinion in Caetano v. Massachusetts, handed down on March 21, 2016, the Court appeared united, at least for now, in defending Heller’s scope by categorically rejecting the reasoning of the Supreme Judicial Court for Massachusetts in upholding a law in that state that banned stun guns. The Massachusetts court held that stun guns were not protected by the Second Amendment because they did not exist at the time of this country’s founding, were “unusual” as a modern weapon, and not readily adaptable for use in the military. The Supreme Court wasted little time (two pages!) in noting how all three rationale were directly contrary to the holding in Heller, and therefore reversed. Justice Alito, joined by Justice Thomas, concurred in the judgment, noting emphatically that the genesis of this case began when an abused woman used a stun gun to scare off her abusive ex-boyfriend, and warning that “if the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.” < a href="http://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf"> A link to the opinion is here.



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  • Congress’ recent enactment of “Protecting Americans from Tax Hikes” (“PATH Act”) provides new litigation rights to certain tax exempt organizations. Before the enactment of the PATH Act, only §501(c)(3) organizations could challenge IRS’ non-deficiency actions in court. For example, if the IRS denied the application of a §501(c)(3) public charity or revoked the public charity’s exempt status, it could be challenged in Tax Court, Court of Claims or the Federal District Court for D.C. The PATH Act, through enactment of IRC section 7428(a)(1)(E), provides a remedy for all organizations that are seeking initial qualification or continuing qualification by the IRS of tax-exempt status under §501(c) or §501(d). This provision is effective for all pleadings filed after December 18, 2015, and provides welcome relief and equal treatment for all types of tax-exempt organizations. Pursuant to an IRS notice issued February 22, 2016, (TEGE-04-0216-0003) the IRS will elevate all 501(c) and 501(d) revocations to IRS Chief Counsel’s office to ensure that an administrative record is properly developed and that the revocation can be defended in court. This should provide greater scrutiny at a higher level, and hopefully minimize the number of unwarranted IRS actions against exempt organizations.


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  • The U.S. Supreme Court issued three new opinions on March 7, 2016.

    Unincorporated Trust’s Citizenship Based On Citizenship Of Its Members For Diversity

    In a succinct six-page unanimous opinion authored by Justice Sotomayor, the Court held that “while humans and corporations can assert their own citizenship, other entities take the citizenship of their members.” In Americold Realty Trust v. Conagra Foods, Inc., the case began as a simple contract dispute over a warehouse fire. The owner of the warehouse, an unincorporated Maryland “real estate investment trust,” removed the case from state to federal court on the basis of diversity, and won. On appeal, the parties represented that there was diversity jurisdiction for the district court to hear the case, but the Tenth Circuit disagreed, holding that the trust’s citizenship was equal to that of all of its members, including, at a minimum, its shareholders. With nothing in the record to show the citizenship of the trust’s members, there was no diversity, and the parties were back to the beginning in state court. The Court, clearing up the ambiguity left by Congress and the other Circuits, affirmed, and specifically rejected the trust’s argument that its citizenship be derived through its trustees or in the same manner as a corporation. A link to the opinion is here.

    Adoptive Lesbian Parent’s Decree Entitled To Full Faith And Credit

    Although the issue in V.L. v. E.L. concerned the rights of adoptive parents that cross state lines, the fact that the couple in this case were lesbians gives an indication of where the impact of this opinion will be felt. E.L., through reproductive technology, gave birth to three children, all of whom were adopted by V.L. through court decrees while the couple lived in Georgia. The couple later moved to Alabama, then separated. V.L. moved for custody and visitation rights based on the Georgia decree. The Alabama Supreme Court held that its courts were not obligated to give full faith and credit to the Georgia decrees, reasoning that a Georgia statute that appeared to not allow adoption while a biological parent retained her rights deprived the Georgia court of subject-matter jurisdiction. The Court, in a unanimous per curiam decision, reversed, holding that the Georgia statute in question did not affect subject-matter jurisdiction at all, and thus the Georgia decree was entitled to full faith and credit, even if it may have appeared to be wrong on the merits. A link to the opinion is here.

    Death Row Inmate Gets Second Trial Because Prosecution Withheld Material Evidence

    After Michael Wearry was convicted of capital murder and sentenced to death, primarily on the testimony of Sam Scott who claimed to have witnessed the murder, Wearry’s counsel learned that the prosecution had withheld several items of relevant information, including testimony that cast doubt on Scott’s credibility. Six members of the Court, in a per curiam opinion, held that the prosecution’s failure to produce the evidence before trial was sufficient to “undermine confidence” in the result, stating that the evidence against Wearry “resembles a house of cards, built on the jury crediting Scott’s account rather than Wearry’s alibi.” Accordingly, the Court reversed the conviction and remanded for a new trial, without hearing argument. Justice Alito, joined by Justice Thomas, dissented, arguing that while there was “no question” that the information should have been turned over, that new evidence would not have resulted in a different outcome, and regardless the case should not have been summarily reversed without full briefing and consideration by the Court. A link to the decision in Wearry v. Cain is here.



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  • On March 1, 2016, the U.S. Supreme Court handed down its first set of opinions without Justice Scalia.

    ERISA Preempts State Law Reporting Requirements

    In Gobeille v. Liberty Mutual Insurance Company, the Court held that Vermont’s law compelling disclosure of health care claims, for the purpose of maintaining an all-inclusive health care database, was preempted by the confidentiality requirements of the Employee Retirement Income Security Act of 1974. The majority opinion, authored by Justice Kennedy, noted the already detailed reporting and disclosure requirements mandated by ERISA, and concluded that those requirements “are central to, and an essential part of, the uniform plan administration contemplated by ERISA.” Therefore, Vermont’s separate reporting requirements were “connected to” ERISA’s plans, and were preempted to “prevent the States from imposing novel, inconsistent, and burdensome reporting requirements on plans.” That Vermont had a different goal in compiling the information was of no avail. Justice Thomas filed a concurrence, noting that while he agreed that the majority’s opinion followed prior ERISA precedent, he had “come to doubt” whether ERISA’s preemption scope was properly constitutional as currently applied. Justice Breyer’s concurrence noted that a lack of preemption would carry the heavy consequence of health plans having to potentially answer to “50 or more potentially conflicting information reporting requirements” that would be unduly burdensome. Justice Ginsburg, joined by Justice Sotomayor, dissented, arguing that Vermont’s efforts to collect health care information did not regulate or manage any ERISA plans, and thus were not preempted. A link to the opinion is here.



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  • Virginia Supreme Court: Uncorrected Misnomer Does Not Preclude Tolling By Nonsuit

    Everyone knows that a misnomer occurs when a party is properly identified but incorrectly named, while a misjoinder is when the wrong person or entity is named. But the difference between the two errors can be unclear, with very different ramifications. In Richmond v. Volk, Richmond was involved in a car accident with Katherine E. Craft, who was driving a car owned by Jeannie Cornett. Richmond filed suit against "Katherine E. Cornett." Richmond then served process at Ms. Cornett’s address. Ms. Craft, who had changed her last name to Volk through marriage, moved to quash service on the basis that she was not properly identified as the defendant. Richmond nonsuited her case, then re-filed within the six month tolling deadline in Section 8.01-229(E) (but more than two years after the accident), properly naming Ms. Volk as the defendant. Ms. Volk then moved by plea in bar to dismiss the complaint under the statute of limitations, since the new claims did not relate back to the original complaint against the non-existent Katherine E. Cornett, and that prior complaint had never been corrected. The trial court dismissed the case. The Virginia Supreme Court, by a narrow 4-3 margin, reversed and reinstated the complaint. Judge Powell’s majority opinion held that "Katherine E. Cornett" was a misnomer because Richmond’s complaint, taken as a whole, identified Volk as the particular driver of a specific car at a specific time and place. The Court then held that failure to correct the misnomer before the nonsuit was taken did not act to preclude a nonsuit’s tolling provision. Justice Kelsey, joined by Justices Goodwyn and McClanahan, dissented, arguing that Richmond’s failure to correct the misnomer could not be cured by taking a nonsuit, and thus the case should have been barred. A link to the opinion, issued on January 28, 2016, is here.



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  • The U.S. Supreme Court issued six opinions on January 25, 2016.

    An Erroneous Jury Instruction Does Not Change Nature Of A Sufficiency Challenge

    In Musacchio v. United States, the defendant challenged his conviction under 18 U.S.C. sec. 1030(a)(2)(C) for unauthorized access to a computer because the government had not shown that he intentionally accessed the computer without authorization and exceeded his authorized access, as the jury instruction set forth. However, the statute itself requires only one of these elements to be proven. He also raised a statute of limitations defense under 18 U.S.C. sec. 3282(a), but failed to do so until the case was on appeal. The unanimous Court, in an opinion by Justice Thomas, affirmed the conviction. First, the Court noted that a sufficiency challenge is a limited review that only gauges whether the defendant had a meaningful opportunity to defend himself and that the finding of guilt was beyond a reasonable doubt. An erroneous jury instruction that required the government to prove an additional element does not negatively impact either of those considerations. The Court then held that Musacchio could not raise his statute of limitations argument for the first time on appeal because the language of Section 3282(a) did not make the limitation jurisdictional in nature, and thus he had to raise it before the trial court or else it was waived. A link to the opinion is here.

    Prohibition On Life Without Parole Punishment For Juvenile Convicts Is Retroactive

    Fifty years after Henry Montgomery was sentenced to life in prison without parole when he killed a deputy sheriff as a juvenile, the Supreme Court held in Miller v. Alabama, 567 U.S. --- (2012) that such a sentence violated the Eighth Amendment absent consideration of the juvenile’s special circumstances. Montgomery petitioned for a review of his sentence, but Louisiana’s Supreme Court denied relief. The Court, in an opinion by Justice Kennedy, reversed. First, the majority held that it had jurisdiction to review the Louisiana court’s ruling because the rule in Miller was a matter of constitutional law, and thus binding on state collateral review proceedings. Then, on the merits, the majority held that Miller’s rule on juvenile punishment was retroactive because it was substantive in nature, not procedural, although acknowledging that the consideration of a juvenile’s circumstances did inject a procedural component into the process. Justice Scalia, joined by Justices Thomas and Alito, filed a dissent arguing that it was “astonishing” that the Court would interject itself into a state post-conviction proceeding to undo a conviction that was obtained in conformance with then-existing constitutional law. Justice Thomas filed a separate dissent, arguing that no clause of the Constitution granted a right to Montgomery to seek retroactive review of his conviction. A link to the decision in Montgomery v. Louisiana is here.

    Supreme Court Upholds FERC’s Power To Pay Consumers To Conserve Power Usage

    Through power granted under the Federal Power Act, authorizing FERC to regulate “the sale of electric energy at wholesale in interstate commerce,” FERC issued a rule requiring wholesale electricity market operators who manage the grids to pay the same price to consumers to lower their energy usage as they would pay to a generator to produce the same energy—in effect, offering a higher price for energy conservation—so long as that price gave a net benefit to all consumers. The U.S. Court of Appeals for the District of Columbia struck down that rule as going beyond FERC’s authority under the Act and for being arbitrary and capricious. The Court, 6-2, reversed in an opinion by Justice Kagan. First, the majority held that the rule directly impacted wholesale rates for electricity as permitted under the Act, and did not impermissibly impact retail sales, noting that it was a “fact of economic life” that regulation of the wholesale market would affect retail sales in some way. The majority also found FERC’s rationale for the new rule to be adequately reasoned after the consideration of competing views, sufficient under the Administrative Procedure Act. Justice Scalia, joined by Justice Thomas, dissented, arguing that the Act by its terms did not permit FERC to regulate the demand response of consumers of electricity, as the Act only permitted regulation of sales of electricity to those would resell the power—wholesalers, not consumers. Justice Alito did not participate in the case. A link to the opinion in FERC v. Electric Power Supply Association is here.

    Indian Tribe Not Entitled To Equitable Tolling When It Waited For Class Action To Resolve

    Resolving a circuit split, the Supreme Court held in Menominee Tribe of Wisconsin v. United States that the Tribe was not entitled to equitable tolling of the six-year statute of limitations for its contract claims for the time that a similar case brought by a different Indian tribe was pending in the courts. Both Indian tribes had contracts with the U.S. government to provide aid, and both complained that the government was not meeting its obligations. Shortly after the Supreme Court held in favor of the Indian tribe in Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631 (2005) on one such contract, the Tribe in this case brought a similar contract action seeking to recover for nonpayments stretching back to 1995. The district court dismissed claims for those years not within six years of filing, and the Tribe appealed, arguing that the Cherokee case equitably tolled its claims. The unanimous Court, in an opinion by Justice Alito, held that the Tribe had not shown extraordinary circumstances beyond its control that would permit equitable tolling, noting that the Tribe could have brought its claims at any time. A link to the opinion is here.

    Supreme Court Requires State Courts To Adhere To Its Rulings On Federal Law

    In James v. Boise, the Court, in a per curiam opinion, reversed the ruling of the Idaho Supreme Court that interpreted 42 U.S.C. sec. 1988 in a way contrary to the Supreme Court’s interpretation set forth in Hughes v. Rowe, 449 U.S. 5 (1980). In Hughes, the Supreme Court held that Section 1988 permitted an award of attorneys’ fees to a prevailing defendant only when the plaintiff’s action was “frivolous, unreasonable, or without foundation.” Idaho’s Supreme Court declared that it was not bound by Hughes because its limitation was not set forth in the statute itself. The Court stated that it had the sole duty to interpret federal law to prevent the “public mischiefs” that might result from federal law being applied differently among the various states, and thus reversed Idaho’s holding.

    A link to the opinion is here.

    Supreme Court Again Dismisses A Stockholder Complaint Against ERISA Fiduciaries

    Applying the standard set in Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. --- (2014), which requires plaintiffs to plausibly allege an alternative action that an ERISA fiduciary could have taken, consistent with the securities laws, and which a prudent fiduciary would not have viewed as more likely to harm the fund than to help it, in order to state a claim for breach of the fiduciary’s duty of prudence on the basis of insider information, the Court reversed the Ninth Circuit in Amgen Inc. v. Harris, by a per curiam decision, and dismissed a complaint without prejudice because it did not set forth any facts that plausibly alleged such an alternative action. The Ninth Circuit had posited such an alternative action in upholding the complaint, but the Court required that the complaint itself contain such facts and allegations. A link to the opinion is here.



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  • Supreme Court Strikes Down Florida’s Death Penalty Scheme

    Overturning prior decisions that upheld Florida’s sentencing procedure for death penalty cases, the U.S. Supreme Court held, 8-1, that the judge’s role under Florida law of finding sufficient facts to warrant the death penalty violated the Sixth Amendment’s requirement that such fact-finding be done only by a jury. Florida argued that its scheme was constitutional because the jury provided an “advisory verdict” that the sentencing judge must give “great weight” to. Justice Sotomayor’s opinion rejected that “hybrid” approach, holding that under Ring v. Arizona, 536 U.S. 584 (2002), any penalty of death had to be solely based on facts found by the jury. Justice Breyer, in a brief concurrence, that he came to the same result through the Eighth Amendment instead of the Sixth. Justice Alito, dissenting, argued that the holding in Ring should not have been extended to this case, where the jury played “critically important role” in the application of the death penalty, and the judge performs merely a “reviewing function.” The decision in Hurst v. Florida is here. The decision in Hurst v. Florida is here.

    Supreme Court Limits Prisoner In Forma Pauperis Litigation

    Perhaps with an eye toward weeding out the thicket of litigation initiated by prisoners, the Supreme Court, in a unanimous decision authored by Justice Ginsburg, held that prisoners litigating in forma pauperis must pay for their cases on a per-case basis. Under the Prison Litigation Reform Act of 1995, prisoners had to pay a certain amount of the initial filing fee to initiate a case, and then were required to make certain monthly payments thereafter. The Act was unclear, however, whether those monthly payments applied on a per-prisoner or per-case basis. Obviously, the former interpretation would permit litigious prisoners to maintain many more cases in the courts. The majority’s brief opinion surveyed the Act’s language and determined that it applied against each action or appeal, thus requiring separate payments for each. The majority also noted that this interpretation coincided with the Act’s goal of reducing frivolous prisoner litigation—noting in particular that the appellant in this case was “frequent litigant.” A link to the decision in Bruce v. Samuels is here.



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  • U.S. Supreme Court Bolsters Effectiveness of Arbitration Provisions

    In a 6-3 decision, the U.S. Supreme Court held that an arbitration provision that was to be enforceable only as allowed by state law is enforceable where the Federal Arbitration Act pre-empted that law. DIRECTV, Inc.’s service agreement included a binding arbitration provision that was unenforceable if the “law of your state” so dictated. California’s courts ruled that such provisions were unenforceable, but then the Supreme Court held in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) that the Act pre-empted California’s rule. California’s Court of Appeal that despite the ruling in Concepcion, the provision was still unenforceable because that was what California’s law dictated. Justice Breyer’s opinion for the majority held that this result did not place such contracts “on equal footing with all other contracts,” and thus did not give “due regard . . . to the federal policy favoring arbitration.” Therefore, Concepcion and the Act was the proper reflection of California law, and the provision was therefore upheld. Justice Thomas noted in his short dissent his belief that the Act did not apply to state court proceedings. Justice Ginsburg, joined by Justice Sotomayor, argued that the better reading of the provision was to abide by state law without consideration of federal pre-emption, warning that further expansion of the Act’s purview threatened to degrade the rights of consumers to the benefit of corporations. A link to the opinion in DIRECTV, Inc. v. Imburgia, released on December 14, 2015, is here.

    U.S. Supreme Court Denies Habeas Relief For Stricken Juror

    In White v. Wheeler, White was sentenced to death after a trial in which a juror was stricken for cause after giving equivocal and inconsistent answers about his ability to impose the death penalty. White argued that this infringed upon his constitutional rights, and the U.S. Court of Appeals for the Sixth Circuit agreed. The U.S. Supreme Court, in a unanimous per curiam decision, reversed. The Court emphasized that habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 was highly deferential to the decisions by the state courts, and that such relief is only given where the error is “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” The Court noted that the juror was carefully questioned in voir dire, and that it was not “beyond disagreement” that his answers qualified him for a capital panel. A link to the December 14, 2015 opinion is here.



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  • Arthur D. Burger, chair of Jackson & Campbell’s professional responsibility practice group, is quoted in the November 30, 2015 edition of the National Law Journal regarding the procedures and practices for informal admonitions in D.C. disciplinary cases. The article involves a complaint against a former in-house counsel at Amtrak. He is identified as being “chairman of Jackson & Campbell’s professional responsibility practice in Washington.” See Complete Article Here



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  • The U.S. Supreme Court issued a per curiam opinion on November 9, 2015.

    In a per curiam opinion the U.S. Supreme Court reversed a decision of the U.S. Court of Appeals for the Fifth Circuit and held that whether a police officer’s use of force was excessive under the Fourth Amendment is determined through an objective reasonableness standard that is a “pure question of law” that can be resolved on summary judgment. The Court further held that on the facts in this case, the officer did act reasonably in shooting at the subject of a high-speed chase in an effort to disable the vehicle, but instead killed the suspect. The opinion noted that the suspect had been reported to be drunk, had been driving at a high rate of speed for a prolonged period, had threatened to shoot officers, and was approaching an officer who had set out a spike trap, reasoning that in such circumstances the officer’s decision to shoot was not “beyond debate” nor “squarely governed” by precedent, and thus the officer was entitled to qualified immunity. Justice Scalia’s concurrence argued that since the purpose of the shots was to disable to vehicle, not harm the suspect, cases involving the use of deadly force did not apply. Justice Sotomayor, in a solo dissent, argued that it was “clearly established under the Fourth Amendment” that the officer’s “rogue conduct” was unlawful, and that he should have waited until he was given the go-ahead by a superior officer, and allowed the spike trap a chance to work, before shooting. The opinion in Mullenix v. Luna is here.



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