Recently in U.S. Supreme Court Category

On June 26, the U.S. Supreme Court granted in part the Government's request to stay the injunctions against enforcement of the travel ban for nationals of six countries.  The court left the injunction in effect for, among others, persons with "a close familial relationship" with a person in the United States.  How close is "close"?  The Supreme Court did not say.

The Government's interpretation was largely along the lines of family relationships that Congress has designated as close enough to file an application for a family-based immigration petition, which seemed sensible to me.  The U.S. District Court did not think so and modified its injunction to include "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States."  Sounds like something out of Gilbert and Sullivan

The District Court also enjoined application of the Executive Order to two classes of refugees, those who "(i) have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee; or (ii) are in the U.S. Refugee Admissions Program through the Lautenberg Program."

Acting swiftly in response to a petition by the Government, the Court issued this order:

The Government's motion seeking clarification of our order of June 26, 2017, is denied. The District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government's appeal to the Court of Appeals for the Ninth Circuit.

Justice Thomas, Justice Alito, and Justice Gorsuch would have stayed the District Court order in its entirety.
Hmmm.  The District Court's furthest stretch, to refugees who merely have an assurance from an agency but no other contact within the U.S., is stayed, but the rest remains in force.  This is the Supreme Court that our Politically Correct academia keeps telling us is "conservative."

Beats Me, Ask SCOTUS

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Yesterday in the Hawaii travel ban case, District Judge Derrick Watson denied the Plaintiffs' Emergency Motion to Clarify Scope of Preliminary Injunction.

Upon careful consideration of the parties' submissions, it is evident that the parties quarrel over the meaning and intent of words and phrases authored not by this Court, but by the Supreme Court in its June 26, 2017 per curiam decision. That is, the parties' disagreements derive neither from this Court's temporary restraining order, this Court's preliminary injunction, nor this Court's amended preliminary injunction, but from the modifications to this Court's injunction ordered by the Supreme Court. Accordingly, the clarification to the modifications that the parties seek should be more appropriately sought in the Supreme Court.
Ariane de Vogue has this article for CNN.  The full text of the order is here.
SCOTUSblog has a symposium on the U.S. Supreme Court's capital cases this term.  The index of posts is here.

My contribution is here.

SCOTUS Justice Circuit Assignments

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The U.S. Supreme Court issued a new allotment order, assigning Justices to the various circuits.  The Circuit Justice generally rules on extension requests.  Stay requests are also addressed to the Circuit Justice, though these are routinely referred to the full court when there is time to do so.

Justice Gorsuch gets the Eighth Circuit.  Justice Sotomayor keeps the Tenth.  New Justices are typically not assigned the circuits from which they came right out of the gate.  The cases they participated in need to drain out of the pipeline first.  I wouldn't be surprised to see Justice Gorsuch get the Tenth eventually, as Justice Kennedy did the Ninth.

The court also issued an orders list taking up several cases.  The only criminal case taken is a tax fraud case, Marinello v. United States.

SCOTUS Action This Morning

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Quick takes on U.S. Supreme Court action this morning:

1.  Affirmed the Fifth Circuit in Davila v. Davis, declining to go further toward creating an endless spiral of lawyers getting new claims before the federal courts by accusing prior lawyers of incompetence.  This is a win for CJLF.  Our press release is here.

2.  Sent the cross-border shooting case of Hernandez v. Mesa back to the Fifth Circuit to reconsider in light of the Abbasi decision.  Not too much to consider since they got it right the first time and Abbasi does not in any sense move the ball in plaintiff's direction.  This is a partial win for CJLF as well.

3.  Took up the travel ban case and stayed the orders enjoining its enforcement to the extent they apply to persons with no connection to the United States.  This is a bit of a slap to the lower courts for granting preliminary injunctions that are far broader than their justification.
The U.S. Supreme Court this morning went back into the area of criminal defense lawyers giving bad advice on the immigration consequences of a conviction, a can of worms it opened in its 2010 decision of Padilla v. Kentucky.  Today's case is Lee v. United States, No. 16-327.

Jae Lee was a legal permanent resident who was caught dealing ecstasy.  When offered a plea deal, he asked his retained attorney about immigration consequences and was assured he would not be deported.  "According to Lee, the lawyer assured him that if deportation was not in the plea agreement, 'the government cannot deport you.' "  Wow.  What an idiot, if that was really the basis of his advice.  Dealing drugs is an "aggravated felony" under immigration law.  As such it results in mandatory deportation, and no, Bozo, it doesn't have to be in the plea agreement.

The two prongs of an ineffective assistance claim are deficient performance and resulting prejudice.  Here we have deficient performance in spades.  How about prejudice?  Is a defendant prejudiced by a plea deal when the prosecution has a slam-dunk case for guilt that almost certainly would have resulted in a higher sentence plus deportation anyway?  The majority, per C.J. Roberts, says yes.  Justice Thomas, joined by Justice Alito, dissents.  Justice Gorsuch did not participate.

Materiality

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Today's theme out of the United States Supreme Court is materiality.  If you describe what happened in a case and people look puzzled and ask "So what?" you have a materiality issue.

Maslenjak v. United States, No. 16-309, involves the crime of lying in the naturalization process.  It is error to instruct the jury that they can convict on finding a false statement without also finding that the falsity somehow contributed to the decision.

Turner v. United States, 15-1503, involves the rule of Brady v. Maryland that prosecutors must turn over to the defense any material exculpatory evidence in their possession.  "Material" in this context means a reasonable probability it would have made a difference in the result.  The Court holds 6-2 that the evidence in this case was not material.

Weaver v. Massachusetts, No. 16-240, involves a claim that the defendant's trial lawyer was ineffective for failure to object to the exclusion of the public (including the defendant's mother) from an overcrowded courtroom during jury selection.  Violation of the public trial right is a "structural error," reversible without any showing that it mattered, but that claim was forfeited by failure to object.  Ineffective assistance of counsel is reversible only upon a showing of "prejudice" which means the same thing as "materiality" in the Brady context, i.e., a reasonable probability it made a difference.  The Court held that the prejudice requirement continues to apply even when the underlying error is "structural," or at least this particular subspecies of structural errors, and no prejudice has been shown here.

Justice Kennedy wrote the opinion of the Court.  Justice Thomas wrote a concurring opinion.  Justice Alito wrote an opinion concurring in the judgment.  Justice Gorsuch joined all three.  Justice Breyer dissented, joined by Justice Kagan.  CJLF filed an amicus brief in this case, written by Kym Stapleton.

Freezing Bivens In Place

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Can and should the federal courts invent new kinds of lawsuits, creating causes of action that Congress has not authorized?  The U.S. Supreme Court's thinking on that question has evolved over the years, and it took another step today.

Courts have been creating causes of action for a very long time.  The English courts did so before there even was a Parliament as we now know it, and these are the "common law" causes of action we learned in the first year of law school.  They created common law crimes as well.

But courts do this less than they used to, and the federal courts do less than the state courts.  Many states no longer have common law crimes; the federal courts have never been thought to have the power to create them.

During Reconstruction, Congress created a cause of action for people whose constitutional rights are violated by state and local officials, but not by federal officials.  In 1971, the Supreme Court created such a cause of action under the banner of "for every wrong there is a remedy."  That was the Bivens case, involving an alleged Fourth Amendment violation by federal agents.  In the next few years, the Court expanded Bivens a couple of times to new areas, but then it stopped.

The present Supreme Court term has two cases presenting the questions of what it means to extend Bivens to a new area and whether to do so.  One of those cases was decided today by a short-handed six-Justice Supreme Court.  If the approach of the four-Justice majority is reaffirmed in the next case, then Bivens is effectively frozen in ice.  It will exist within its current scope, but it will not be extended, and nearly any variation on existing themes will be considered an extension.

Busy Decision Day at SCOTUS

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Here are some quick notes on this morning's decisions from the U.S. Supreme Court.

Jenkins v. Hutton is a per curiam reversal of the Sixth Circuit for wrongly overturning a death sentence.  The Sixth misapplied the "fundamental miscarriage of justice" exception of Sawyer v. Whitley.  On a quick read, though, it appears the opinion may do more to muddy the waters about the distinction between death penalty eligibility and selection than it does to clarify them.

McWilliams v. Dunn ducks the question of whether, when a defendant qualifies for appointment of an expert under Ake v. Oklahoma, the expert must be a defense expert, not a neutral.  The court holds that the state court in this case did not meet the basic requirements of Ake.  Justice Alito's dissent blasts the majority for proceeding in this manner, ducking the question the court agreed to decide and deciding on a question it had denied review on.  I am pleased to see Justice Gorsuch joining this dissent.

Ziglar v. Abbasi, decided by a six-member court, declines to extend civil suits to suing high government officials for detention policies in the wake of 9/11.  Congress has not authorized such suits, and the court continues to decline to extend its Bivens line of cases into new territory.

Packingham v. North Carolina decides that the state went too far in banning convicted sex offenders from social media sites.  No dissent on the result.  Justice Alito, joined by the Chief Justice and Justice Thomas, concurs in the result, expressing concern about the sweeping rhetoric of the Justice Kennedy's majority opinion.  Justice Gorsuch did not participate in this case.

The next expected decision day is Thursday.
The U.S. Supreme Court today released orders from its conference last week, opinions in several argued cases, and one summary per curiam opinion.  There were no criminal law cases accepted for review or decided after argument.  However, the summary opinion was yet another reversal of a federal court of appeals for failure to respect the limits Congress placed on its authority to overturn state judgments for mere disagreement with a state court on an unsettled question.

Virginia v. LeBlanc, No. 16-1177, involves the rule of Graham v. Florida that a person under 18 at the time of the crime cannot be sentenced to life without parole for a crime less than murder.  The Fourth Circuit had disagreed with the Virginia state courts on the question of whether the state's "geriatric release" program provided a sufficient possibility of release to satisfy the Graham rule.

The Court today holds only that the Virginia trial court's ruling, resting on the Virginia Supreme Court's earlier ruling in Angel, was not objectively unreasonable in light of this Court's current case law.
In Honeycutt v. United States (16-142), the U.S. Supreme Court unanimously reversed the Court of Appeals for the Sixth Circuit holding that a co-conspirator cannot be ordered to forfeit conspiracy proceeds did not personally obtain under a theory of joint and severable liability.

In this case, the Honeycutt brothers operated a hardware store - Tony owned the store with their father, and Terry was a "salaried employee" who managed sales and inventory.  The brothers were warned by law enforcement that a product they carried called "Polar Pure", a iodine based water purification product, contained an ingredient that could be used to manufacture methamphetamine.  Despite the warning, the brothers continued to sell large quantities of the product, and over a 3-year period the store grossed more than $400,000 from the sale of more than 20,000 bottles of Polar Pure.  The brothers were subsequently indicted for various federal crimes relating to the sale of iodine with the knowledge it would be used to manufacture methamphetamine.

Cellular-site data tracking

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This morning, the U.S. Supreme Court agreed to hear the case of Carpenter v. United States (16-402).  The issue is whether the warrantless search and seizure of cell phone records that detail the location and movement of the cell phone user over a period of time is permitted by the Fourth Amendment.

In this case, the defendants were charged with nine armed robberies in violation of the Hobbs Act (18 U.S.C. §1951).  At trial, the Government introduced the defendants' cell phone records to show that each defendant used his cell phone within 1 1/2 to 2 miles of several locations during the times the robberies occurred.  The Government obtained these records pursuant to the Stored Communications Act (18 U.S.C. §2703(d)), which permits the Government to require disclosure of certain telecommunication records when "specific and articulable facts show that there are reasonable grounds to believe that the content of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."


Travel Ban Case Goes to SCOTUS

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Jess Bravin and Brent Kendall report for the WSJ:

The Trump administration late Thursday asked the Supreme Court to revive its plan to temporarily ban travelers from six largely Muslim countries from entering the U.S., a major legal test for one of the president's most controversial initiatives.

"The Constitution and acts of Congress confer on the president broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the nation's interest," the Justice Department said in a petition. The administration said the plan--which would put a 90-day halt on the entry of individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen--is needed as a means to "prevent infiltration by foreign terrorists."
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A federal district judge in Hawaii also blocked the ban, and last month the Ninth Circuit, sitting in Seattle, heard the administration's appeal. In Thursday night's filings, the Justice Department asked the Supreme Court to stay the Hawaii court order as well while its appeal proceeds.

Since the order by its terms expires in 90 days, this is one of those cases where the "preliminary" proceedings are, in fact, the whole ball game.  By the time the case reaches final judgment in the normal course, it will be moot.

The certiorari petition in the Fourth Circuit case is Trump v. International Refugee Assistance Project, No. 16-1436.  The stay application in the same case is 16A1190.  The application, certiorari petition, and appendix are available as a single PDF file here. The stay application in the Hawaii case is 16A1191.
In Esquivel-Quintana v. Sessions, No. 16-54, the U.S. Supreme Court today waded once again into the messy question of what is an "aggravated felony" for the purpose of the federal law that says aliens who commit such felonies may be deported.

The question is messy for two reasons.  First, making legal consequences depend on judgments entered under the varying criminal laws of 50 states, the federal government, and the various other self-governing entities is an inherently messy problem.  Second, the law is poorly drafted and fixing it has not been a priority for Congress.

This case deals with the "age of consent" problem.
The U.S. Supreme Court has once again unanimously reversed the Court of Appeals for the Ninth Circuit on a criminal justice issue.  This time it was the Notorious Ninth's evasion of Supreme Court jurisprudence on police liability for allegedly excessive force.  In this case, police reasonably fired their weapons when a person in a shack they were searching pointed a gun at them.  It turned out to be a BB gun, but the officers did not know that at the time.

If law enforcement officers make a "seizure" of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force? The Ninth Circuit has adopted a "provocation rule" that imposes liability in such a situation.

We hold that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.

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