Relist Watch: The Muller Report

By John Elwood
on Apr 18, 2019 at 5:42 pm

John Elwood reviews Monday’s relists.

I normally try to have Relist Watch written up by Wednesday after the court issues its order list. Here it is late Thursday and I’m just getting it out. It’s not just that I’m lazy, though I am. It’s that I’ve been mulling over the five new relists, and what I think their prospects are for Supreme Court review. In fact, I’ve been mulling these cases so deeply that you could call today’s installment the “Muller Report.” I like the ring of it.

I’ve also spent the extra time coming up with especially funny jokes, dank memes and hilarious GIFs. In fact, they are so good that there’s a danger that if people could just read everything, unrestrained mirth would disrupt the workplace. So I’ve taken the precautionary measure of temporarily obscuring the jokes that pose the greatest risk of disruption until some future national holiday when they can be safely read. I know some of you will be frustrated to read this entire document just to find that all the best bits are blacked out. But the redactions were compelled by the need to prevent harm to ongoing matters.

So let’s get started. Because this first case involves a fatality, there will be no “Cruller Report” jokes even though it also involves a store that sells donuts. City of Newport Beach, California v. Vos, 18-672, presents an issue like one that the Supreme has seen before: whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to a violent and mentally ill suspect in the course of bringing the suspect into custody. Gerritt Vos, who was both schizophrenic and under the influence of amphetamines, was acting erratically in a 7-Eleven store in Newport Beach, California, brandishing scissors and cutting the hand of one clerk. Eventually, everyone else fled, leaving Vos alone in the store. Police prepared a “less lethal” weapon that fired rubber projectiles while other officers stood by with AR-15 rifles. When Vos charged out of the store, the officer in charge yelled “Shoot him!” The officer with the rubber projectile weapon fired, but so did the two officers with AR-15s. Vos was fatally wounded. Vos’ parents sued the city and the officers arguing both excessive force and violation of Title II of the ADA.

The district court granted the defendants summary judgment on all claims. A divided panel of the U.S. Court of Appeals for the 9th Circuit affirmed the grant of qualified immunity on the excessive-force claim, but remanded for the district court to consider claims that the city violated Vos’ Fourth Amendment rights. It also held that the city and officers were not entitled to summary judgment on the parents’ ADA and Rehabilitation Act claims, concluding that there were material issues of fact about whether the officers had the time and opportunity to assess the situation and employ accommodations of Vos’ mental illness, including de-escalation, communication or specialized help. Judge Carlos Bea dissented in part, arguing that the use of deadly force in the circumstances was reasonable. The city of Newport Beach and the officers now seek to revisit the 9th Circuit’s ruling. The Supreme Court took a case raising a similar question in City and County of San Francisco v. Sheehan, but dismissed it as improvidently granted. I think the court is definitely going to remind people that it’s important to redact a PDF, not just use black highlighting in the document, or people can still read everything.

Next up is Dahne v. Richey, 18-761. Thomas Richey, a Washington state prisoner serving a sentence for murder, filed a prison grievance in which he alleged that a guard unfairly deprived him of his right to use the prison yard, to shower and to obtain clean clothes. Purportedly because he did not know the guard’s name, he identified her in the grievance as an “extremely obese Hispanic female guard.” But the grievance continued:

It is no wonder why guards are assaulted and even killed by some prisoners. When guards like this fat Hispanic female guard abuse their position as much as they abuse their calorie intake, it can make prisoners less civilized than myself … resort to violent behavior.

As a matter of advocacy, that falls in the “questionable” camp. Prison administrator Dennis Dahne took one look at that off-color report and directed Richey to remove the “unnecessary and inappropriate” language. When the revised grievance still included the rude commentary, Dahne refused to process the grievance, and Richey filed suit alleging violation of his First Amendment right to petition.

The 9th Circuit held that although prison officials may constitutionally request that a petitioner rewrite a grievance, it was a violation of Richey’s rights to refuse to process the grievance because it contained offensive language. Prisons can restrict disrespectful language in the broader prison environment to preserve harmonious relationships, the court held, but there was no legitimate penological objective in restricting speech in a grievance, which it said “did not raise any substantial security concern.” The state of Washington contends that the 9th Circuit is “[a]lone among the circuits” in ruling that prisoners have a First Amendment right to disrespectful language, and that certiorari is warranted to bring the courts into alignment. Tune in next week, when you learn what will happen next week.

Q: What do you call a preview piece discussing CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., 18-565?

A: The “Duller Report.”

Although I won’t question petitioner’s statement that CITGO Asphalt Refining involves an “important issue of contract law concerning risk-allocation in the maritime setting,” the issue is a bit on the dry side. CITGO Asphalt Refining Co. and affiliated companies chartered an oil tanker to carry crude oil to its refinery on the Delaware River. The tanker struck a submerged anchor while docking, spilling crude oil into the river. The case concerns whether a contractual “safe port” or “safe berth” clause in the contract governing the charter providing that CITGO would direct the tanker to a “safe place or wharf” constituted a warranty of safety (as the U.S. Court of Appeals for the 3rd Circuit held in this case), or merely required CITGO to exercise due diligence (as the U.S. Court of Appeals for the 5th Circuit held in 1990). CITGO sought review of that holding previously, but in 2014, the Supreme Court denied review and the case returned to district court, which imposed damages of $99.4 million. CITGO again seeks review. The government acknowledges that the 5th Circuit has adopted a different test than other courts, but argues that review is not warranted because its interpretation of the customary safe-berth clause “has attracted no following in the courts or the maritime industry” during the three decades since it was decided, and review is no more warranted now than in 2014. Perhaps the relist means someone at the court disagrees. Disclosure: If you’ve gone to the trouble of copying and pasting this, you now know that Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Barton v. Barr, 18-725, involves a fairly arcane question of immigration law. If a lawfully admitted permanent resident is removable from the United States, he may seek cancellation of removal if, among other things, he has “resided in the United States continuously for 7 years after having been admitted in any status.” But the permanent resident’s period of continuous residence is “deemed to end” when, as relevant here, he has “committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” This provision is commonly referred to as the “stop-time rule” because it specifies the circumstances under which the time period for continuous residence is stopped.

Andre Martello Barton, a Jamaican citizen, was not convicted for fraud; his case is no guller report. Just a few months shy of his seventh year in the United States, Barton was convicted of assault, property damage and firearm possession; he was later convicted of drug possession. Thus, unless the “stop-time rule” applied to his offenses, he became eligible for cancellation of removal in about mid-1996. Although Barton was then a lawful permanent U.S. resident, the government argued only that the stop-time rule had been triggered because Barton’s crimes had rendered him inadmissible; it did not argue the crimes had rendered him removable. Barton argued that his crimes could not render him “inadmissible” when he was not actually seeking admission (having been admitted long earlier). The U.S. Court of Appeals for the 11th Circuit denied Barton relief, holding that “an alien can be rendered inadmissible regardless of whether he is actually seeking admission,” but noted that there is a circuit split on the issue. Barton seeks review. The government acknowledges that “the Ninth Circuit has reached a contrary conclusion,” but argues that “intervention would be premature” because the Board of Immigration Appeals has yet to issue an precedential opinion addressing the issue, and “further percolation in the courts of appeals would be beneficial.” The court’s decision to relist definitely means that we’ll have to wait at least another week to find out what they’re doing.

Last up is McGee v. McFadden, 18-7277. Shannon McGee was convicted of criminal sexual contact with his minor stepdaughter and sentenced to life imprisonment without parole. McGee argued that the state failed to disclose Brady evidence when it withheld until a post-trial hearing a letter from a jailhouse snitch saying that “he was willing to help and testify” at McGee’s trial “because he needed the [state lawyer’s] help.” The district court denied McGee’s habeas petition and denied him a certificate of appealability. McGee petitioned the U.S. Court of Appeals for the 4th Circuit to issue a certificate of appealability, but that court denied his request and dismissed the appeal, holding that McGee had not made the required “substantial showing of the denial of a constitutional right.” McGee filed a 39-page handwritten petition arguing that the snitch’s letter was material evidence impeaching a critical state witness that the state was required to disclose under Brady. The court called for the record, clearly indicating it wanted a fuller report. It has now called for a response, and has relisted the case, indicating that one of the justices – I’m guessing her name rhymes with “Yotomayor” – is taking a close look at it.

That’s all for this week. My undying gratitude to Tom Mitsch for compiling the relists.

New Relists

CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., 18-565

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issue: Whether under federal maritime law a safe-berth clause in a voyage charter contract is a guarantee of a ship‘s safety, as the U.S. Courts of Appeals for the 2nd and 3rd Circuits have held, or a duty of due diligence, as the U.S. Court of Appeals for the 5th Circuit has held.