Relist Watch: Looking for the living among the dead

John Elwood reviews Friday’s relists.

A funny thing happened on Friday: The Supreme Court relisted cases for the next week’s conference, only one day following its previous conference. That may not seem like a big deal, but it’s the biggest change in the court’s relisting procedures in years. Usually, the court relists cases after it releases orders from the previous conference — usually following a Monday order list (or Tuesday, for holiday weekends). Because the Supreme Court usually relists every case it is going to grant, the absence of a Friday relist for the other cases from last week’s conference suggested that, come Monday, the non-relisted cases would be dead on arrival. This week, that proved to be correct, including for some closely watched cases with significant amicus support. The Friday relists also made for much more informed reading of the order list this week, knowing that you didn’t have to look for the still-living relists among the dead cases for which cert had just been denied.

So about the living cases. All of last week’s relists are back, including most notably the 10 Second Amendment cases that have been kicking around for a while. We have two groups of new relists this week.

There’s a group of nine cases that in one way or another all challenge current qualified immunity doctrine, under which law enforcement officials are not liable for discretionary actions that allegedly violated someone’s rights unless the actions violated “clearly established” law. Three years ago in Ziglar v. Abbasi, Justice Clarence Thomas, citing scholarly commentary, wrote separately “to note my growing concern with our qualified immunity jurisprudence,” which he maintained had been “completely reformulated … along principles not at all embodied in the common law.” He argued that courts should consider instead whether “the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff ’s claim.” Qualified immunity doctrine has come under increasing fire in recent years after reports of police misconduct that goes unredressed because of it. However, the court only recently denied cert in other cases raising the same basic issue, so it could well be that some separate opinion is the works and no grants will result from these relists.

That brings us to this week’s last new relist, Jarchow v. State Bar of Wisconsin, 19-831, involving a First Amendment challenge to mandatory bar membership and dues. The court has taken quite an interest in compelled speech and dues in recent years, so this case is one to watch.

That’s all for this week. Let’s hope we receive early word of the relists again this coming Friday. Until then, stay safe!

New Relists

Brennan v. Dawson, 18-913
Issue: Whether a police officer may reasonably rely on a narrow exception to a specific and clearly established right to shield him from civil liability when his conduct far exceeds the limits of that exception.
(relisted after the May 21 conference)

Dawson v. Brennan, 18-1078
Issue: Whether the U.S. Court of Appeals for the 6th Circuit misapplied the Supreme Court’s authority and created a conflict among the U.S. courts of appeals by holding that a law enforcement officer violates the Fourth Amendment by entering the rear curtilage of a home in attempting to gain the resident’s compliance with his probation condition.
(relisted after the May 21 conference)

Baxter v. Bracey, 18-1287
Issues: (1) Whether binding authority holding that a police officer violates the Fourth Amendment when he uses a police dog to apprehend a suspect who has surrendered by lying down on the ground “clearly establish[es]” that it is likewise unconstitutional to use a police dog on a suspect who has surrendered by sitting on the ground with his hands up; and (2) whether the judge-made doctrine of qualified immunity, which cannot be justified by reference to the text of 42 U.S.C. § 1983 or the relevant common law background, and which has been shown not to serve its intended policy goals, should be narrowed or abolished.
(relisted after the May 21 conference)

Anderson v. City of Minneapolis, Minnesota, 19-656
Issues: (1) Whether the burden of persuasion in qualified immunity cases should be, in part or entirely, on the plaintiff, as held by the U.S. Court of Appeals for the 8th Circuit in this case and by the U.S. Courts of Appeals for the 4th, 5th, 6th, 7th, 10th and 11th Circuits, or whether it should be placed on the defendant, as held by the U.S. Courts of Appeals for the 1st, 2nd, 3rd, 9th and District of Columbia Circuits; (2) whether, under the state-created-danger doctrine, due process is violated when first responders fail to provide any treatment to a person suffering from severe hypothermia, and instead erroneously declare him dead; and (3) whether the 8th Circuit erred in dismissing this state-created-danger case on qualified immunity grounds.
(relisted after the May 21 conference)

Zadeh v. Robinson, 19-676
Issue: Whether the Supreme Court should recalibrate or reverse the doctrine of qualified immunity.
(relisted after the May 21 conference)

Corbitt v. Vickers, 19-679
Issues: (1) Whether qualified immunity is an affirmative defense (placing the burden on the defendant to raise and prove it) or a pleading requirement (placing the burden on a plaintiff to plead its absence); and (2) whether the Supreme Court should recalibrate or reverse the doctrine of qualified immunity.
(relisted after the May 21 conference)

Hunter v. Cole, 19-753
Issues: (1) Whether, if the barrel of a gun is not yet pointed directly at an officer, clearly established federal law prohibits police officers from firing to stop a person armed with a firearm from moving a deadly weapon toward an officer if the officer has not both shouted a warning and waited to determine whether the imminent threat to life has subsided after the warning; and (2) whether a police officer who inaccurately reports his perceptions of events during a dynamic shooting encounter violates clearly established rights under the 14th Amendment.
(relisted after the May 21 conference)

Jarchow v. State Bar of Wisconsin, 19-831
Issue: Whether Lathrop v. Donohue and Keller v. State Bar of California should be overruled and “integrated bar” arrangements like Wisconsin’s invalidated under the First Amendment.
(relisted after the May 21 conference)

West v. Winfield, 19-899
Issue: Whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point case law.
(relisted after the May 21 conference)

Mason v. Faul, 19-7790
Issues: (1) Whether a finding of “objectively unreasonable excessive force” can be squared with a finding of qualified immunity under the facts and circumstances of this case, including whether determinations of the trial court, as affirmed by the U.S. Court of Appeals for the 5th Circuit, resulted in an incorrect analysis of the qualified immunity issue; and (2) whether the 5th Circuit’s determination can be reconciled with other courts’.
(relisted after the May 21 conference)

Returning Relists

Andrus v. Texas, 18-9674
Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation.
(rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10, January 17, January 24, February 21, February 28, March 6, March 20, March 27, April 3, April 17, April 24, May 1, May 15 and May 21 conferences)

United States v. California, 19-532
Issue: Whether provisions of California law that, with certain limited exceptions, prohibit state law-enforcement officials from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and restrict the transfer of aliens in state custody to federal immigration custody, are preempted by federal law or barred by intergovernmental immunity.
(relisted after the January 10, January 17, March 6, March 20, March 27, April 3, April 17, April 24, May 1, May 15 and May 21 conferences)

Mance v. Barr, 18-663
Issue: Whether prohibiting interstate handgun sales, facially or as applied to consumers whose home jurisdictions authorize such transactions, violates the Second Amendment and the equal protection component of the Fifth Amendment’s due process clause.
(relisted after the May 1, May 15 and May 21 conferences)

Rogers v. Grewal, 18-824
Issues: (1) Whether the Second Amendment protects the right to carry a firearm outside the home for self-defense; and (2) whether the government may deny categorically the exercise of the right to carry a firearm outside the home to typical law-abiding citizens by conditioning the exercise of the right on a showing of a special need to carry a firearm.
(relisted after the May 1, May 15 and May 21 conferences)

Pena v. Horan, 18-843
Issue: Whether California’s Unsafe Handgun Act violates the Second Amendment by banning handguns of the kind in common use for traditional lawful purposes.
(relisted after the May 1, May 15 and May 21 conferences)

Gould v. Lipson, 18-1272
Issues: (1) Whether the Second Amendment protects the right to carry a firearm outside the home for self-defense and (2) whether the government may deny categorically the exercise of the right to carry a firearm outside the home to typical law-abiding citizens by conditioning the exercise of the right on a showing of a special need to carry a firearm.
(relisted after the May 1, May 15 and May 21 conferences)

Cheeseman v. Polillo, 19-27
Issue: Whether states can limit the ability to bear handguns outside the home to only those found to have a sufficiently heightened “need” for self-protection.
(relisted after the May 1, May 15 and May 21 conferences)

Ciolek v. New Jersey, 19-114
Issue: Whether the legislative requirement of “justifiable need,” which, as defined, does not include general self-defense, for a permit to carry a handgun in public violates the Second Amendment.
(relisted after the May 1, May 15 and May 21 conferences)

Worman v. Healey, 19-404
Issue: Whether Massachusetts’ ban on the possession of firearms and ammunition magazines for lawful purposes unconstitutionally infringes the individual right to keep and bear arms under the Second Amendment.
(relisted after the May 1, May 15 and May 21 conferences)

Malpasso v. Pallozzi, 19-423
Issue: In a challenge to Maryland’s handgun carry-permit scheme, whether the Second Amendment protects the right to carry handguns outside the home for self-defense.
(relisted after the May 1, May 15 and May 21 conferences)

Culp v. Raoul, 19-487
Issue: Whether the Second Amendment right to keep and bear arms requires Illinois to allow qualified nonresidents to apply for an Illinois concealed-carry license.
(relisted after the May 1, May 15 and May 21 conferences)

Wilson v. Cook County, 19-704
Issues: (1) Whether the Second Amendment allows a local government to prohibit law-abiding residents from possessing and protecting themselves and their families with a class of rifles and ammunition magazines that are “in common use at [this] time” and are not “dangerous and unusual”; and (2) whether the U.S. Court of Appeals for the 7th Circuit’s method of analyzing Second Amendment issues – a three-part test that asks whether a regulation bans (a) weapons that were common at the time of ratification or (b) those that have some reasonable relationship to the preservation or efficiency of a well-regulated militia and (c) whether law-abiding citizens retain adequate means of self-defense – is consistent with the Supreme Court’s holding in District of Columbia v. Heller.
(relisted after the May 1, May 15 and May 21 conferences)