Recently in U.S. Supreme Court Category

In 1985, the Supreme Court decided that a police officer's use of a level of force that the Court deemed excessive--despite being authorized by state law and consistent with a rule going back to the common law and widely adopted by the states--was an "unreasonable seizure" in violation of the Fourth Amendment. The case was Tennessee v. Garner, 471 U.S. 1. Under that case and its progeny, before a federal court can get into the question of how much force is "reasonable" it must first find a "seizure."

In a nutshell, a person is seized if either (1) he is physically stopped by the police action, or (2) he stops in obedience to the police show of authority. CJLF last briefed this issue in the Eighth Circuit case of Johnson v. Ferguson. See our brief and the post on the decision.

Yesterday, the Supreme Court took up a case presenting this issue, Torres v. Madrid, No. 19-292.

Today, the U.S. Supreme Court heard oral argument in the case of McKinney v. Arizona, No. 18-1109. The transcript is here.

Last week I noted the dubious opinion of the U.S. District Court in D.C. halting federal executions. Yesterday, a three-judge motions panel of the U.S. Court of Appeals for the D.C. Circuit denied the Government's motion to stay or vacate. The panel gave only an explanation of only one sentence plus citation, inadequate for the seriousness of the matter: "Appellants have not satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2018)."

As expected, the Government has taken the case to the Supreme Court, Barr v. Roane, No. 19A615.

As a matter of procedure, the petition is submitted to Chief Justice Roberts, the designated Circuit Justice for the D.C. Circuit, but the Circuit Justice invariably refers capital case stay petitions to the full court, except in emergencies.

Last week, Federal District Judge Tanya Chutkan issued a preliminary injunction preventing the U. S. Attorney General from carrying out executions for federal capital crimes. DOJ promptly appealed. See this story in the WSJ by Jess Bravin and Sadie Gurman.

The slender reed on which this injunction rests is Congress's use of the word "manner" rather than "method" in adopting the way executions are carried out in states.

Update: See end of post.

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The U.S. Supreme Court held a conference Friday. As usual, the Court issued a very short orders list later the same day, taking up a single case, and a long list today turning down many cases.

The case taken up Friday wasTanzin v. Tanvir, No. 19-71, regarding a civil suit against federal employees for putting the plaintiffs on the "do not fly" list, allegedly in violation of the Religious Freedom Restoration Act.

Among the cases turned down today was Johnson v. City of Ferguson, No. 19-345 a suit by the perpetrator of the massively destructive "hands up" lie, claiming that he was the injured party in the notorious incident. See this post.

The U.S. Supreme Court issued a short orders list after its Friday conference today. The Court took up three criminal cases for full briefing and argument.

United States v. Briggs, No. 19-108 and United States v. Collins, No. 19-184 are military cases involving the statute of limitations for rape under the Uniform Code of Military Justice.

Walker v. United States, No. 19-373, asks whether a Texas conviction for robbery can be a "violent felony" under the Armed Career Criminal Act when, at the time of Walker's prior conviction, that crime could be committed by theft plus reckless (not necessarily intentional) injury to another person.

A longer orders list with cases turned down and procedural orders will be released Monday.

A USDOJ investigation of the incident found that Sergio Hernandez and his companions were human smugglers attempting an illegal border crossing. When Agent Jesus Mesa detained one of the group, the others pelted him with rocks. Agent Mesa fired from the U.S. side of the border, and Hernandez was killed on the Mexico side. DOJ determined that Agent Mesa acted in accordance with policy.

Hernandez's parents have pursued a suit for years, alleging that he was just an innocent boy playing an innocent game when a "rogue" officer gunned him down for no reason. Because Agent Mesa and the Government are moving for judgment without a trial, these allegations are assumed to be true solely for the limited purpose of ruling on that motion. Some reports of the case mislead the public into thinking that the parents' improbable allegations are the actual facts of the case.

CJLF's amicus brief is here. Kimberly Robinson has this report on the argument for Bloomberg Law. Brent Kendall has this report for the WSJ.

Here are some initial impressions after reading the transcript in the D.C. Sniper case of Mathena v. Malvo, argued today in the U.S. Supreme Court. (See yesterday's post for background and links.)

The Court is in a difficult situation because of the Montgomery opinion's dishonest misrepresentation of what Miller actually held. To make Miller retroactive under the Teague rule, Montgomery had to pound a round (procedural) peg into a square (substantive) hole. I don't think they want to publicly admit that the Court did that only a few years ago, but the difficulties are becoming apparent.

I'm sure Justice Kagan would like the Court to just accept Montgomery's recasting of Miller on its face and endorse an intrusive rule for federal micromanagement of juvenile LWOP sentencing, just like the monstrosity we have for capital sentencing. I would be surprised if she has a majority for that. I think Justice Alito (and probably Justice Thomas) would like to overrule Montgomery. I doubt they have a majority for that. Justice Gorsuch seems inclined to a narrow reading of Montgomery, though, because a broad one would implicate the Apprendi rule.

Justices Ginsburg and Breyer question the Virginia Supreme Court's holding that the Virginia system actually was discretionary at the time of Malvo's sentencing. The Fourth Circuit assumed that was correct. They could send the case back to reconsider that point.

With this many splits among the Justices, there is no predicting the outcome.

Amy Howe's report of the argument is here.

In 2012, the U.S. Supreme Court decided in Miller v. Alabama that life in prison without possibility of parole could not be a mandatory sentence for murderers under 18 at the time of the crime. The decision effectively extended to juvenile LWOP the long-standing rule for capital cases for adults. See Woodson v. North Carolina (1976); Sumner v. Shuman (1987).

The bigger problem is the 2016 decision in Montgomery v. Louisiana. The core holding of that case is that Miller applies retroactively to cases on collateral review. In the course of reaching that result, however, there is a lot of expansive language regarding what must be considered before deciding that a 17-year-old should never be released for, e.g., gunning down 12 people, chosen at random, in cold blood. For the Supreme Court to vastly expand a rule in the process of deciding it is retroactive would be remarkable, to say the least. It would be especially strange to impose new requirements in states that have discretionary juvenile LWOP in a case that is about mandatory juvenile LWOP.

The Court's docket, with links to the documents in the case, is here. Amy Howe has this preview at Howe on the Court. Update: Kevin Daley has this article at the Daily Caller.

Update 2 (10/16): The transcript of oral argument is now available.

David French has this article in the National Review, with the above subhead, on the new and old allegations against Justice Brett Kavanaugh.

Among other issues, the New York Times (according to its own correction) simply left out of its article the fact that one of the people supposedly abused "declined to be interviewed and friends say that she does not recall the incident." Didn't think that was important to mention?  "All the news that fits our agenda."

The U.S. Supreme Court announced its December oral argument calendar Friday. Several criminal and related cases are on the docket.

NY State Rifle & Pistol v. City of New York, No. 18-280 leads off on Monday, December 2, and will get the most press if it is not canceled. Subsequent changes in state and local law gun control laws provide substantial grounds to believe the case is moot.

McKinney v. Arizona, No. 18-1109 closes out the session on Wednesday, December 11. The case involves the Arizona practice of the Supreme Court reweighing the aggravating and mitigating circumstances itself rather than sending the case back to the trial court for a new sentencing hearing. Current Arizona law for new trials requires the jury to do the weighing as well as find the aggravating circumstance that makes the case eligible for the death penalty. The murderer and his friends have filed copious briefing to the effect that the state court must apply current law with only scant attention to whether current federal law (the only law SCOTUS has jurisdiction to review) requires the jury to do the weighing at all. In Ring v. Arizona, 536 U.S. 584, 597-598, n. 4 (2002), the question decided was unambiguously limited to the finding of the aggravating circumstance, not the weighing.