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Relist Watch

John Elwood reviews Monday’s relists.

In the old days when I had nothing but time, I would have found it impossible to resist the temptation to speculate about the serial relist in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111. But I’m in the throes of writing a brief appealing a 427-page opinion, so I have got to stick to my knitting and focus on this week’s three new relists.

It’s a pretty light lift this week because the first two cases involve precisely the same question. Jesner v. Arab Bank PLC, 16-499, and Licci v. Lebanese Canadian Bank, SAL, 16-778, both ask whether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability. When the First Congress wasn’t busy setting up the federal government, it enacted the Alien Tort Statute, which, as currently worded, gives district courts original jurisdiction “of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” You have to wonder why this was such a congressional priority, since the provision saw scarcely any use for its first 170 years. After that, things picked up. In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court granted certiorari to consider whether the act allows lawsuits against corporations, after the U.S. Court of Appeals for the 2nd Circuit dismissed the suit on the ground that the law of nations does not recognize corporate liability. But the court did not reach the question, resolving the case based on the presumption against extraterritoriality because “all the relevant conduct” giving rise to Kiobel’s claims took place outside the United States. Now the issue is back in a couple of cases out of the 2nd Circuit in which petitioners Joseph Jesner, Yaakov Licci and roughly 6,000 others claim that respondent banks served as “paymasters” for international terrorists. And Sen. Sheldon Whitehouse (D-R.I.) and three groups of amici want it granted. So petitioners have that going for them, which is nice.

Lewis v. Vasquez, 16-805, is much more fact-intensive. Peter Vasquez is a motorist who was stopped by police in Kansas for a license-plate violation. Police grew more and more suspicious and detained Vasquez longer and longer when he answered questions in ways that seemed inconsistent with his claim that he was moving from Colorado to Maryland, but their suspicion that he might be ferrying drugs proved false. Vasquez then brought a Section 1983 claim against the officers. Judges Carlos Lucero and Robert Bacharach of the U.S. Court of Appeals for the 10th Circuit reversed the district court’s determination that the arresting officers were entitled to qualified immunity, holding that the officers acted without reasonable suspicion and violated clearly established precedent. Judge Timothy Tymkovich dissented vociferously. The state of Kansas now seeks summary reversal. In a couple weeks, we should have a better idea of the odds that they’ll get it.

Thanks to Bryan U. Gividen for compiling the cases in this post.


Returning Relists

Salazar-Limon v. City of Houston
Issue: Whether, when a police officer shoots an unarmed person in the back and the person testifies that he was merely walking away when shot, a court may grant summary judgment to the officer in a suit for excessive force by concluding that it is an “undisputed fact” that the person reached for his waistband just because the officer said he did. 

(relisted after the February 17, February 24, March 3, March 17 and March 24 conferences)


Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March 17 and March 24 conferences)


Needham v. Lewis
Issues: 1) Whether, viewing the evidence from the officer’s perspective at the time of the incident as shown in the dashboard video, a reasonable officer could have believed that the decedent posed an imminent threat of serious harm to the officer or others in the vicinity; and (2) whether, at the time of the incident, the law clearly established in a particularized sense, considering the evidence available including the dashboard video, that the use of deadly force was unlawful in this situation.

(relisted after the March 17 and March 24 conferences)


Ayestas v. Davis
Issues: (1) Whether reasonable jurists could disagree that, by anticipatorily applying a procedural default not actually grounded in state law, a district court abused its discretion when it refused a routine stay and amendment necessary to exhaust claims associated with newly discovered evidence revealing overt discrimination in the prosecution’s decision to seek the death penalty; and (2) whether the U.S. Court of Appeals for the 5th Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.

(relisted after the March 17 and March 24 conferences)


New Relists 

Jesner v. Arab Bank PLC
Issue: Whether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.

(Relisted after the March 24 conference)


Licci v. Lebanese Canadian Bank, SAL
Issue: Whether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.

(Relisted after the March 24 conference)


Lewis v. Vasquez
Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit, in a divided 2-1 decision, incorrectly narrowed qualified immunity and failed to faithfully apply the Supreme Court’s precedents when it held that officers clearly lacked reasonable suspicion for the brief detention of a driver after a valid traffic stop until a drug detection dog arrived and alerted to the driver’s car; and (2) whether the 10th Circuit erred by doing precisely what the Supreme Court instructed lower courts not to do in United States v. Arvizu, which was to use a divide-and-conquer approach to reasonable suspicion and proceed to dismiss individual factors as innocuous in isolation rather than consider all factors collectively, i.e., the totality of the circumstances.

(Relisted after the March 24 conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Mar. 30, 2017, 5:34 PM),