This week we highlight petitions pending before the Supreme Court that address, among other things, whether there is a categorical exception to the just compensation clause when the government takes property while acting under its police power; whether the Supreme Court’s holding that states may not “impose criminal penalties on the refusal to submit to” a warrantless blood draw in Birchfield v. North Dakota is substantive and therefore applies retroactively; and whether the confrontation clause prohibits the prosecution from introducing into evidence at trial a certified lab report reflecting statements of analysts through a surrogate expert who merely reviewed the report and results and did not conduct or observe any of the underlying tests.

The petitions of the week are below the jump:

Johnson v. Alaska
19-1065
Issues: (1) Whether the confrontation clause prohibits the prosecution from introducing into evidence at trial a certified lab report reflecting statements of nontestifying analysts through a surrogate expert who, although a supervisor at the lab, merely reviewed the report and results and did not conduct or observe any of the underlying tests; and (2) whether the confrontation clause prohibits the surrogate expert from testifying at trial about the underlying tests, including the particular samples tested, procedures followed and results reached.

Browder v. Nehad
19-1067
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in denying qualified immunity to a police officer who responded to a midnight emergency call about a suspect threatening others with a knife, encountered that suspect in a dark alley walking towards him holding a metallic object within seconds upon arriving at the scene, and used deadly force.

Olson v. Pennsylvania
19-1070
Issue: Whether the Supreme Court’s holding that states may not “impose criminal penalties on the refusal to submit to” a warrantless blood draw in Birchfield v. North Dakota is substantive and therefore applies retroactively.

Evans v. Sandy City, Utah
19-1091
Issues: (1) Whether a government may ban expressive conduct without first trying to advance its interests using less speech-restrictive measures, as the U.S. Court of Appeals for the 10th Circuit held below, in conflict with decisions of the Supreme Court and the U.S. Courts of Appeals for the 1st, 3rd, 4th and 9th Circuits; and (2) whether a government may ban all expressive conduct in or near roadways on the ground that doing so is necessary to eliminate the risk of traffic accidents, as the 10th Circuit held below, in conflict with decisions of the Supreme Court and the 1st, 4th and 9th Circuits.

National Football League v. Ninth Inning Inc.
19-1098
Issues: (1) Whether an agreement among the members of a joint venture on how best to distribute the venture’s jointly created core product may be condemned under the Sherman Act without requiring the plaintiff to establish that defendants harmed competition in a properly defined antitrust market; and (2) whether, notwithstanding the Supreme Court’s decision in Illinois Brick Co. v. Illinois, antitrust damages claims may be brought by indirect purchasers who do not allege that they paid a price fixed by the alleged conspirators.

City of Bakersfield, California v. Crawford
19-1099
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred when it held that evidence of prior incidents that indicate that an individual may be mentally ill could be introduced for the purpose of determining whether an officer used excessive force and/or was negligent even though neither the officer nor his department had any prior knowledge of such incidents.

McKesson v. Doe
19-1108
Issue: Whether the First Amendment and the Supreme Court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state law negligence action making a leader of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act there, when it is undisputed that the leader neither intended, authorized, directed nor ratified the perpetrator’s act, nor engaged in or incited violence of any kind.

Lech v. Jackson
19-1123
Issue: Whether there is a categorical exception to the just compensation clause when the government takes property while acting pursuant to its police power.

Atlantic Trading USA, LLC v. BP P.L.C.
19-1141
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case. This listing occurs without regard to the likelihood that certiorari will be granted.
Issues: (1) Whether passing Morrison v. National Australia Bank, Ltd.’s domestic-transaction test is sufficient or merely necessary to determine whether a claim seeks a permissibly territorial application of U.S. law; and (2) whether the focus of the Commodity Exchange Act differs from the Securities Exchange Act’s focus on the location of the exchange or transaction at issue.

FMC Corp. v. Shoshone-Bannock Tribes
19-1143
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit correctly holds that tribal jurisdiction over nonmembers is established whenever an exception under Montana v. United States is met, or whether, as the U.S. Courts of Appeals for the 7th and 8th Circuits have held, a court must also determine that the exercise of such jurisdiction stems from the tribe’s inherent authority to set conditions on entry, preserve tribal self-government or control internal relations; and (2) whether the 9th Circuit has construed the Montana exceptions to swallow the general rule that tribes lack jurisdiction over nonmembers.

Posted in Johnson v. Alaska, Browder v. Nehad, Olson v. Pennsylvania, Evans v. Sandy City, Utah, National Football League v. Ninth Inning Inc., City of Bakersfield, California v. Crawford, Mckesson v. Doe, Lech v. Jackson, Atlantic Trading USA, LLC v. BP P.L.C., FMC Corp. v. Shoshone-Bannock Tribes, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week, SCOTUSblog (Apr. 16, 2020, 9:00 AM), https://www.scotusblog.com/2020/04/petitions-of-the-week-91/