Brady violations, child abduction, qualified immunity, and confessions of error

Brady violations, child abduction, qualified immunity, and confessions of error The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here. This week, the Supreme Court started thinning the relist herd. The court summarily reversed in eight-time relist Zorn v. Linton, once again reminding lower courts that denying police qualified immunity for excessive force requires closely analogous precedent, not high-level generalities. The court split 6–3, with Justice Sonia Sotomayor (joined by Justices Elena Kagan and Ketaji Brown Jackson) dissenting, lamenting the court’s “troubling asymmetry” of shielding officers even when they inflict significant pain on passive protesters. Petitioners in other relisted cases did not fare so well. The court denied review in one-time relist Takeda Pharmaceutical Co. v. Painters and Allied Trades District Council 82 Health Care Fund, passing (at least for now) on whether class actions can include uninjured members. The court also denied review in eight-time relist Reed v. Goertz, where death-row prisoner Rodney Reed sought DNA testing of the murder weapon. Dissenting from denial to hear the case, Sotomayor, again joined by Kagan and Jackson, argued that lower courts are erecting unjustified procedural barriers to prisoners seeking DNA testing, and the result may be that Texas executes Reed without ever learning whose DNA is on the murder weapon. And in Villarreal v. Alaniz, the court declined to revisit qualified immunity for arresting a journalist who asked a police officer for certain information and then published this. Sotomayor alone dissented from the denial, saying that “[i]t should be obvious” that arresting a journalist for doing what journalists do every day – asking public officials questions and publishing the information they voluntarily provide – violates the First Amendment. There are 115 petitions and applications teed up for this Friday’s conference. Six are new relists. Same crime, same Brady violation, different result? Skinner v. Louisiana asks whether Louisiana can treat murder convict James Skinner differently from his co-defendant Michael Wearry after this court had already summarily reversed Wearry’s conviction in a per curiam opinion. Skinner’s petition argues his conviction for murdering 16-year-old pizza deliveryman Eric Walber rested on the same basic architecture as Wearry’s: heavy reliance on questionable witnesses Sam Scott and Eric Brown, and the same withheld material that the court found dispositive in Wearry, plus still more undisclosed evidence later uncovered by postconviction counsel. The Louisiana postconviction court nonetheless denied relief in a brief order, stating only that the “Weary [sic] case is distinguishable enough … that its decision does not compel this Court to follow suit.” Skinner’s pitch is that Wearry already decided the hard part about the impact of withheld evidence, and that Louisiana’s unexplained insistence that the case is “distinguishable enough” amounts to open defiance of a directly on-point per curiam. Louisiana responds that this is a dreadful vehicle and not Wearry redux because Skinner’s jury also heard from additional witnesses Ryan Stinson and Raz Rogers, who testified that Skinner confessed to them, and the conviction was supported by other corroborating evidence and Skinner’s own allegedly false testimony. In the state’s telling, whatever problems existed with Scott and Brown do not overcome those confessions or the undeveloped postconviction record. Clearly, at least one of the justices is digging in on this one: the court requested the record and the case has already been rescheduled six times to allow that record to be digested before the case was first conferenced. But it remains to be seen whether the outcome here will be as favorable as in Wearry. The unsettled question of “well settled” The Hague Convention on the Civil Aspects of International Child Abduction generally requires that a wrongfully removed child be immediately returned to his or her country of habitual residence. But when a Hague Convention petition is brought more than a year after removal, a court need not return the child if “it is demonstrated that the child is now settled in its new environment.” Castro v. Guevara asks a technical question about standards of review with very high human stakes: when a trial court finds that an abducted child is “now settled in its new environment,” does a court of appeals review that determination deferentially for clear error, or start over de novo (from scratch)? Samantha Castro wrongfully removed her daughter A.F. from Venezuela to Texas; father Jose Brito Guevara filed a return petition more than a year later. After a March 2024 merits trial, the district court found A.F. “well settled” based on the totality of circumstances, including schooling, community ties, and a stable home, and thus denied her return. A panel of the U.S. Court of Appeals for the 5th Circuit reversed, holding that the determination whether a child is well-settled presents a mixed question of law and fact with a primarily legal component subject to de novo review. It then reweighed the factors, reversed, and remanded. The district court subsequently ordered A.F.’s return. Castro now argues that the determination should be reviewed only for clear error; her cert petition emphasizes that the “well settled” inquiry is a fact-intensive, case-specific judgment about a child’s age, schooling, community ties, residence, and stability – much like the habitual-residence inquiry this court treated as factual (and subject to clear-error review) in the 2019 case of Monasky v. Taglieri. Castro’s petition argues the 5th Circuit deepened an acknowledged circuit split, with the U.S. Courts of Appeals for the 2nd, 4th, 5th, and 9th Circuits using de novo review, while the U.S. Courts of Appeals for the 1st and 11th Circuits review only for clear error. Brito’s brief in opposition counters that any split is “narrow, at best” because all circuits apply a similar “totality of the circumstances test.” Brito also argues that the question arises infrequently and the case is a “poor vehicle” given claimed “intense procedural irregularities” in the district-court proceedings such as repeated delays. Affirmative defenses: better late than never? Next up is Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia. Dr. Jasmine Younge worked briefly in 2019 as deputy chief of staff and director of programs for Fulton County district attorney Paul Howard Jr. She alleged pregnancy discrimination after being fired after informing the district attorney that she was pregnant. The office moved for summary judgment on the ground that, as a member of the district attorney’s “personal staff,” Younge was exempt from Title VII’s protections against pregnancy discrimination. The catch: this affirmative defense was not pleaded in the answer. Younge’s petition alleges a circuit split on whether defendants may raise unpled affirmative defenses in a summary judgment motion. The U.S. Court of Appeals for the 11th Circuit, following circuit precedent Hassan v. U.S. Postal Service, allows it if the plaintiff is not prejudiced. Fulton County’s brief in opposition argues this case is a poor vehicle because the answer expressly stated Younge was “personal staff” (the very term the statute uses in the exemption) and notice was given of such in hearings. But Younge’s reply brief fires back that respondent conceded below the defense was not raised in the first responsive pleading and only surfaced a year later in the summary judgment motion – a position the lower courts accepted. Six seconds, six shots, one lawsuit In 2020, LAPD Officer Toni McBride responded to a chaotic multi-vehicle collision. After getting to the collision site, he ended up firing six shots in roughly six seconds at Daniel Hernandez, who was armed with a box cutter, advancing towards her and ignoring commands to stop and drop the weapon. The sixth shot hit Hernandez’ head, killing him. The en banc U.S. Court of Appeals for the 9th Circuit unanimously held that the first four shots were objectively reasonable. But by a one-vote margin (6-5), it concluded that a jury could find the final two shots excessive, reasoning that bodycam footage, viewed in the light most favorable to plaintiffs, showed Hernandez “rolling away” and “balled up in a fetal position” after the fourth shot, such that McBride “could have and should have first reassessed the situation to see whether he had been subdued.” In City of Los Angeles v. Estate of Hernandez, petitioners argue that the 9th Circuit’s ruling constitutes “artificial segmentation” that gives too little leeway for the “split-second” judgments officers are permitted under Graham v. Connor and Plumhoff v. Rickard (which emphasized that officers “need not stop shooting until the threat has ended”), and conflicts with this court’s recent rejection of a hyper-granular “moment-of-threat” analysis in Barnes v. Felix. The Estate of Daniel Hernandez (Hernandez’s parents and minor daughter) argues that everyone agrees on the governing legal standards and that the real dispute is factual: whether Hernandez, after being shot four times, was still trying to get up and thus still posed an immediate threat, making this a poor vehicle for the court to take up. The National Police Association filed an amicus brief that blasts the opinion for ignoring “the perspective of the reasonable officer on the scene” in “tense, uncertain, and rapidly evolving” circumstances. This is the sort of qualified-immunity food fight the justices say that they dislike – yet keep ordering off the menu. But the justices reliably take a careful look at decisions failing to give police qualified immunity. And given how closely the issue divided an en banc court, this case calls out for a close look. Heated agreement between the parties in a capital murder case Saldano v. Texas features the sort of posture that makes even jaded relist-watchers sit up a little straighter: a capital case in which the petitioner says Texas is trying to execute an intellectually disabled man, and Texas more or less says, yes, that does seem to be the problem. Victor Saldaño was sentenced to death for the 1995 kidnapping and murder of Paul King. After Texas relied at sentencing on expert testimony that Saldaño posed a greater future danger because he is Hispanic, the Supreme Court vacated the judgment upholding his death sentence for further consideration in light of the fact that the Texas Solicitor General confessed error. His death sentence was vacated again on other grounds and reimposed again. On his second state habeas corpus application, Saldaño claimed for the first time that he was mentally disabled and the 2002 case of Atkins v. Virginia prohibited his execution. Both parties’ experts agreed he met the criteria for intellectual disability. The Collin County DA’s Office filed a brief in the Texas Court of Criminal Appeals expressly supporting remand for litigation of the Atkins claim. But the TCCA held that the claim was procedurally defaulted because it was raised too late. The fight is now over whether the TCCA properly refused to hear Saldaño’s Atkins claim. Saldaño argues that his claim could not realistically have been brought earlier because Texas was then using a test for intellectual disability that the Supreme Court later repudiated in Moore v. Texas, and that the TCCA had repeatedly treated Moore as a “new legal basis” allowing for successive Atkins claims. (As a music fan, I have to take a moment to note that Saldaño is represented by the same capital defense unit where the outstanding drummer for the early 2000s pop-punk band the Donnas now practices; that is quite a second chapter.) What gives this case extra interest is that what is styled as the state’s brief in opposition is, functionally, a brief in support. Texas agrees that the TCCA’s ruling was not independent of federal law and thus not an “adequate and independent” basis for barring federal review; it agrees Saldaño made a prima facie showing of mental disability; and, most impressive of all, it expressly asks the court to grant cert, vacate the judgment below, and remand for merits review. The reply presses the point that there is “unusual agreement of the parties” and that Texas no longer defends the TCCA’s refusal to allow evidentiary development. So the justices may need a moment to figure out how to handle this situation. Florida man invokes original jurisdiction For most of American history, the Supreme Court’s “original” docket was reserved for workaday disputes filed directly in the Supreme Court between states, usually involving boundary disputes or water rights. Increasingly, activist state AGs (there’s a difference of opinion about whether it stands for “attorney general” or “aspiring governor”) have repurposed it to challenge other states’ policies they dislike and that allegedly have spillover effects. Think Texas v. California (challenging California’s ban on state-funded travel to Texas to protest policies allowing adoption agencies to refuse on religious grounds to place children with same-sex parents); Missouri v. New York (challenging the criminal prosecution of Donald Trump and restrictions on his speech about the case); Nebraska & Oklahoma v. Colorado (challenging Colorado’s marijuana legalization); Texas v. Pennsylvania (seeking to block Georgia, Michigan, Pennsylvania, and Wisconsin from certifying the 2020 election results); and Alabama v. California (targeting climate-related suits against energy companies). Although the justices continue to spar over whether the court has discretion to decline to hear disputes between states, they have shown little appetite to venture much beyond traditional fare of borders and water rights. In Florida v. California and Washington, Florida – supported by Iowa and 16 additional states – seeks leave to file a bill of complaint alleging that California and Washington’s immigration sanctuary policies undermine federal commercial-driver licensing requirements by limiting immigration-status inquiries and allegedly lax English-proficiency enforcement. Florida says the result is a cadre of unsafe drivers roaming interstate highways, highlighted by a fatal Florida Turnpike crash involving a driver allegedly licensed by both states who attempted an illegal U-turn and “was later proven unable to speak or read English.” California and Washington counter that the suit is a “political stunt” unworthy of the court’s original docket. They argue Florida lacks standing, any compliance issues should be handled by the Federal Motor Carrier Safety Administration (which has audited sanctuary and non-sanctuary states alike), and the claims fail on the merits. Let me confidently predict that Florida’s motion for leave will be denied. The question is whether the denial will be accompanied by an opinion of some sort. At long last, we’re at the end. Tune in next week for more tea-leaf reading. New Relists Florida v. California and Washington, 22-O-162 Issue: Whether the court should bar California and Washington from issuing commercial learner’s permits and commercial driver’s licenses “to applicants who are not United States citizens or lawful permanent residents” and from issuing “non-domiciled CDLS to applicants who do not meet the requirements of 49 C.F.R. § 383.71(f).” (Relisted after the Mar. 20 conference.) Issue: Whether Louisiana courts erred in refusing to apply Wearry v. Cain to an individual’s Brady v. Maryland claims. (Relisted after the Mar. 20 conference.) Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, 25-352 Issue: Whether, where a defendant has filed an answer without pleading an affirmative defense, the defendant may nonetheless assert that affirmative defense as the basis for a summary judgment motion, without amending or seeking to amend its answer to plead that affirmative defense, and whether a defendant may do so even if an amendment adding that affirmative defense would be barred by Rule 16(b)(4). (Relisted after the Mar. 20 conference.) City of Los Angeles v. Estate of Hernandez, 25-538 Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit disregarded this court’s precedents, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments; (2) whether the 9th Circuit effectively adopted a new and more extreme “moment-of-threat” rule than that articulated by the court in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to this court in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront. (Relisted after the Mar. 20 conference.) Issue: Whether a trial court’s determination that a child is “well settled” with regard to the Hague Convention on the Civil Aspects of International Child Abduction is subject to de novo review, or whether it is reviewed for clear error. (Relisted after the Mar. 20 conference.) Issues: (1) Whether the Texas Court of Criminal Appeals’ creation of a novel and unforeseeable procedural bar in its interpretation of Texas Criminal Code Article 11.071, Section 5, precludes review of petitioner’s Atkins claim under federal law; and (2) whether a state-created procedural rule may bar review of an Atkins claim consistent with due process where the state has conceded, as here, that the individual meets the criteria for intellectually disability and the procedural gateway necessary to allow for a merits review. (Relisted after the Mar. 20 conference.) Returning Relists Issues: (1) Whether, viewing the facts from the officers’ perspective at the time, the officers acted reasonably under the Fourth Amendment by using bodyweight pressure to restrain a potentially armed and actively resisting individual only until handcuffing could be accomplished; and (2) whether the panel erred in denying qualified immunity where no case clearly established that pre-handcuffing bodyweight pressure violates the Fourth Amendment. (Relisted after the Sept. 29, Oct. 10, Oct. 17, Nov. 7, Nov. 14, Nov. 21, Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) Foote v. Ludlow School Committee, 25-77 Issue: Whether a public school violates parents’ constitutional rights when, without parental knowledge or consent, the school encourages a student to transition to a new “gender” or participates in that process. (Relisted after the Nov. 21, Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) Issue: Whether the requirement that a verdict be based only on the evidence presented in the courtroom at trial satisfies 28 U.S.C. § 2254(d)(1)‘s “clearly established” requirement, and if so, whether a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violates this rule. (Relisted after the Dec. 5, Dec. 12, Jan. 9, and Jan. 16 conferences; held for consideration of response to Fields’ rehearing petition.) Gator’s Custom Guns, Inc. v. Washington, 25-153 Issue: Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment. (Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) Issue: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices violates the Second Amendment; and (2) whether a law dispossessing citizens, without compensation, of property that they lawfully acquired and long possessed without incident violates the takings clause. (Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) Viramontes v. Cook County, 25-238 Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles. (Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) Sittenfeld v. United States, 25-49 Issue: Whether, when the government alleges bribery based solely on lawful campaign contributions, the defendant may be convicted based on evidence that is ambiguous as to whether the public official conditioned any official act on the campaign contributions. (Relisted after the Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) Poore v. United States, 25-227 Issue: Whether the limits on agency deference announced in Kisor v. Wilkie and Loper Bright Enterprises v. Raimondo constrain the deference courts may accord the Sentencing Commission’s interpretation of its own rules via commentary. (Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) District of Columbia v. R.W., 25-248 Issue: (1) Whether a court assessing the existence of reasonable suspicion under the Fourth Amendment may exclude a fact known to the officer, or instead must assess all the evidence when weighing the totality of the circumstances; and (2) whether, under the totality-of-the-circumstances test, the officer in this case had reasonable suspicion to conduct an investigative stop. (Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) Stroble v. Oklahoma Tax Commission, 25-382 Issue: Whether Oklahoma may tax the income of a Muscogee (Creek) Nation citizen who lives and works within the Muscogee (Creek) Reservation that McGirt v. Oklahoma held remains Indian country. (Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) Federal Bureau of Investigation v. Fazaga, 25-430 Issue: Whether dismissal of a claim after assertion of the state-secrets privilege requires a district court to adjudicate the merits of the claim using the privileged information where the privileged information is relevant to a defense. (Relisted after the Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) National Association for Gun Rights v. Lamont, 25-421 Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment. (Relisted after the Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15. (Relisted after the Feb. 20, Feb. 27, Mar. 6, and Mar. 20 conferences.) Beaird v. United States, 25-5343 Issues: (1) Whether 18 U.S.C. § 922(g)(1) comports with the Second Amendment; (2) whether Stinson v. United States still accurately state the level of deference due to the Commentary of the Federal Sentencing Guidelines; (3) whether 18 U.S.C. § 922(g) permits conviction for the possession of any firearm that has ever crossed state lines at any time in the indefinite past, and, if so, whether it is facially unconstitutional. (Relisted after the Feb. 27, Mar. 6, and Mar. 20 conferences.) Issues: (1) Whether, in the Fourth Amendment’s reasonableness-of-a-seizure context, a law enforcement officer’s intended level of force is relevant to determining whether an officer’s use of force should be analyzed under a deadly-use-of-force standard or a general use-of-force standard; and (2) whether, in analyzing an excessive force claim brought under 42 U.S.C. § 1983, an officer’s mistaken use of force being higher than what he or she intended entitles the officer to qualified immunity, so long as the mistake is reasonable under the circumstances. (Relisted after the Mar. 6 and Mar. 20 conferences.) Bannon v. United States, 25-453 Issues: (1) Whether “willfully” in 2 U.S.C. § 192 – which states that anyone who is “summoned … by the authority of either House of Congress” and “willfully makes default” on the subpoena has committed a crime – requires the government to prove the defendant knew his conduct was unlawful; and (2) whether the proper composition of a congressional committee bears on its “authority” to issue a subpoena for purposes of 2 U.S.C. § 192. (Relisted after the Mar. 6 and Mar. 20 conferences.) Issues: (1) Whether in determining if a constitutional error had a prejudicial effect on the outcome of a trial a court must consider only that evidence that was presented to the jury at the trial; and (2) whether the prejudice from the Giglio v. United States violation in this case met the standards for relief under Giglio and Brecht v. Abrahamson. (Relisted after the Mar. 6 and Mar. 20 conferences.) Posted in Featured, Potential Merits Cases, Relist Watch Cases: Reed v. Goertz, Skinner v. Louisiana, Villarreal v. Alaniz, Zorn v. Linton, Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, Saldano v. Texas, Takeda Pharmaceutical Co. v. Painters and Allied Trades District Council 82 Health Care Fund, Castro v. Guevara