Relist Watch

John Elwood reviews Monday’s relists.

Even as the world grows more topsy-turvy by the minute, the Supreme Court’s relists this week are heavily a status quo affair. The gun cases are still there. The qualified immunity cases are still there. And the two ancient serial relists Andrus v. Texas and United States v. California inexplicably shuffle back for yet another curtain call this week, a trip they’ve been making almost weekly since November 2019 and January 2020, respectively.

If we needed any further proof that we’re living in a dystopian future, even the relists this week reflect the basic fact of life Beyond Thunderdome: Two cases enter, one case leaves. The one case leaving is Jarchow v. State Bar of Wisconsin, 19-831, which involved a First Amendment challenge to mandatory bar membership and dues. The court denied review, but Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented to say that the court’s recent First Amendment jurisprudence has undercut the legal basis for upholding mandatory bar membership.

Now on to the two cases entering. The first is Niz-Chavez v. Barr, 19-863. The attorney general can cancel removal of a nonpermanent resident who has 10 years of continuous presence in the United States, and of a permanent resident who has seven years of continuous residence here. Under the “stop-time rule,” the government can end those periods of continuous residence by serving “a notice to appear,” which provides “written notice … specifying” specific information related to the initiation of a removal proceeding. This case presents the question whether a notice sufficient to trigger the stop-time rule must itself include all the requisite information, or whether the government can furnish that information over the course of many documents and on the timetable of its choosing. The government’s brief in opposition includes those words every petitioner loves to read: “[A] circuit conflict currently exists on the question presented.” Regrettably for Agusto Niz-Chavez, that concession is followed by the statements that “the circuits may resolve that conflict” and “the question presented is not outcome-determinative.” Those reflect an advocacy challenge for petitioners. But once the government concedes a circuit split, it is often possible to discredit government claims that the split will resolve itself and that the case is not a good vehicle for addressing the conflict.

The second new case is a bit unusual, in that the Supreme Court has already denied certiorari. Hanks v. United States, 19-7732, is on rehearing of the court’s decision not to grant review. The original petition involved whether 18 U.S.C. § 924(c)(1), which criminalizes the use of a firearm during a “crime of violence” (here, a bank robbery), can be violated by unintentionally intimidating a victim through verbal demands or the passing of a demand note rather than the use or threatened use of physical force. After the court denied review, Jerad Hanks sought rehearing, arguing that the Supreme Court had requested that the government file a response to his co-defendant’s petition raising similar claims, so the court should consider the cases together. Now the court appears to be doing exactly that with the co-defendant’s case, which was already set to be considered at this Thursday’s conference.

That’s all for this week. Until next week, stay safe!

New Relists

Niz-Chavez v. Barr, 19-863
Issue: Whether, to serve notice in accordance with 8 U.S.C. § 1229(a) and trigger the stop-time rule, the government must serve a specific document that includes all the information identified in Section 1229(a), or whether the government can serve that information over the course of as many documents and as much time as it chooses.
(relisted after the May 28 conference)

Hanks v. United States, 19-7732
Issues: (1) Whether 18 U.S.C. § 924(c)(1), which criminalizes the use of a firearm during a “crime of violence” – in this case, the federal bank-robbery statute, 18 U.S.C. § 2113 –may be violated by unintentionally intimidating a victim through verbal demands or the passing of a demand note rather than the use or threatened use of physical force, and whether the definition of the term “crime of violence” cabined in 18 U.S.C. § 924(c)(3)(A) is unconstitutionally vague on its face and unconstitutionally vague under the rule of lenity; and (2) whether there is currently a conflict among the U.S. courts of appeals and an ambiguity in the law regarding the federal statutory definition of the term “crime of violence,” and a conflict between the holdings of some circuits, specifically the U.S. Court of Appeals for the 11th Circuit, and the Supreme Court’s previous holdings regarding the constitutional viability of the current definition of the term “crime of violence” in Section 924(c) and related federal statutes.
(relisted after the May 28 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, May 21 and May 28 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, May 21 and May 28 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, May 21 and May 28 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, May 21 and May 28 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, May 21 and May 28 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, May 21 and May 28 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, May 21 and May 28 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, May 21 and May 28 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, May 21 and May 28 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, May 21 and May 28 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, May 21 and May 28 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, May 21 and May 28 conferences)

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 and May 28 conferences)

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 and May 28 conferences)

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 and May 28 conferences)

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 and May 28 conferences)

Zadeh v. Robinson, 19-676
Issue: Whether the Supreme Court should recalibrate or reverse the doctrine of qualified immunity.
(relisted after the May 21 and May 28 conferences)

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 and May 28 conferences)

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 and May 28 conferences)

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 and May 28 conferences)

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 and May 28 conferences)