John Elwood reviews Monday’s relists.

For more than a month, most of the relist action has featured big knots of relists involving just two blockbuster issues — challenges to qualified immunity and Second Amendment challenges to firearm regulations and not much else. This week, as the Supreme Court faces the end of the term in about a month, there is a decided uptick in the variety of cases that are being seriously considered for plenary review. And they consist of six cases that are (at least kinda sorta) sequels to recent Supreme Court decisions.

First up among this week’s new relists: Kansas, fresh off a couple of wins in criminal law cases, seeks review in Kansas v. Boettger, 19-1051, of whether the First Amendment prohibits a state from criminalizing threats to commit violence communicated in reckless disregard of the risk of placing another in fear. This case is a sequel to Elonis v. United States, in which the court faced the question whether the First Amendment requires a minimum showing of mens rea, or criminal intent. In Elonis, the court avoided the question by instead holding that, as a matter of statutory construction, the federal threat statute requires some proof of a guilty mind greater than the negligence showing that was the basis for Anthony Elonis’ conviction. The court left for another day the question of what minimum showing of mens rea suffices to satisfy the First Amendment. The court has considered cases raising related questions in the years since, but hasn’t squarely addressed the issue. The Kansas Supreme Court invalidated a state threat statute that permitted conviction upon a showing that the speaker had reckless disregard for whether their statement placed the listener in fear. The state seeks to revisit that holding.

Henry Schein, Inc. v. Archer and White Sales, Inc., 19-963, and Archer and White Sales, Inc. v. Henry Schein, Inc., 19-1080, are sequels to — you’ll never guess — Henry Schein, Inc. v. Archer and White Sales, Inc. Last term, the Supreme Court unanimously held that under the Federal Arbitration Act, a court may not decide a question of arbitrability — that is, whether an arbitration agreement applies to the particular dispute — if the parties clearly and unmistakably delegated the question to an arbitrator, even if the court believed that the argument for arbitrability was “wholly groundless.”

On remand, the U.S. Court of Appeals for the 5th Circuit once again refused to compel arbitration. It concluded that the parties had delegated at least some questions of arbitrability to the arbitrator. But it held that because the arbitration agreement included a provision exempting certain claims from arbitration (as relevant here, actions seeking injunctive relief), the agreement did “not clearly and unmistakably delegate[] the question of arbitrability to an arbitrator.” Henry Schein, Inc., seeks to challenge that determination. In a conditional cross-petition, Archer and White Sales argues that this question does not warrant review, but that if the court takes the case anyway, the court should also decide (1) whether an arbitration agreement that identifies a set of rules to apply if there is arbitration clearly and unmistakably delegates to the arbitrator disputes about whether the parties agreed to arbitrate in the first place; and (2) whether an arbitrator or a court decides whether a nonsignatory to an arbitration agreement can enforce it through equitable estoppel.

Albence v. Arteaga-Martinez, 19-896, and Albence v. Guzman Chavez, 19-897, are sequels to Jennings v. Rodriguez, which held that 8 U.S.C. § 1226 does not give detained aliens the right to periodic bond hearings during the course of their detention, and that the U.S. Court of Appeals for the 9th Circuit had misapplied the canon of constitutional avoidance — the idea that courts should avoid deciding a case on constitutional grounds if they can decide it some other way — in holding otherwise. Arteaga-Martinez presents the question whether a different provision of the Immigration and Nationality Act, 8 U.S.C. § 1231, entitles detained aliens to periodic bond hearings at which the government must prove by clear and convincing evidence that further detention is justified. The U.S. Court of Appeals for the 3rd Circuit held, as a matter of statutory interpretation, that Section 1231 requires such hearings be held every six months. The solicitor general argues that was an error — and if Jennings is any indication, the government is likely to prevail.

Guzman Chavez involves a related issue. The INA provides that when the Department of Homeland Security finds that an alien has illegally reentered the United States after having been removed, the prior order of removal is reinstated from its original date. Guzman Chavez involves the truly arcane question whether 8 U.S.C. § 1231 or 8 U.S.C. § 1226 governs the detention of an alien whose prior order of removal has been reinstated and who is seeking withholding of removal. The issue matters because noncitizens in removal proceedings under Section 1226 generally have a right to a bond hearing, and the government takes the position that those in removal proceedings under Section 1231 do not. The court denied cert on that very question just last term in Padilla-Ramirez v. Culley, but the government argues that Guzman Chavez is a better vehicle for resolving the issue.

The last new relist is Rogers v. United States, 19-7320, a sequel to Stokeling v. United States. Stokeling held that a robbery offense that requires the defendant to overcome the victim’s resistance counts toward the Armed Career Criminal Act’s mandatory sentence enhancement for defendants with past convictions for “violent felon[ies].” Rogers asks whether bank robbery (18 U.S.C. § 2113) qualifies as a “crime of violence” under ACCA because it has as an element “the use of physical force against the person or property of another.” Petitioner Jurden Rogers argues that it does not, because bank robbery may be committed by unintentionally intimidating a victim or by presenting a teller with a demand note. Rogers argues that, although several circuits have held that bank robbery by intimidation qualifies as a “crime of violence” under ACCA, other circuits have held that similar state statutes do not qualify as “violent felonies.” If the question sounds familiar to you, it’s because one of last week’s new relists, Hanks v. United States, 19-7732, involves Rogers’ co-defendant Jerad Hanks and raises the same issue. The court will consider both cases together at this week’s conference.

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

New Relists

Albence v. Arteaga-Martinez, 19-896
Issue: Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge by clear and convincing evidence that the alien is a flight risk or a danger to the community.
(relisted after the June 4 conference)

Albence v. Guzman Chavez, 19-897
Issue: Whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226.
(relisted after the June 4 conference)

Henry Schein, Inc. v. Archer and White Sales, Inc., 19-963
Issue: Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.
(relisted after the June 4 conference)

Archer and White Sales, Inc. v. Henry Schein, Inc., 19-1080
Issues: (1) Whether an arbitration agreement that identifies a set of arbitration rules to apply if there is arbitration clearly and unmistakably delegates to the arbitrator disputes about whether the parties agreed to arbitrate in the first place; and (2) whether an arbitrator or a court decides whether a nonsignatory to an arbitration agreement can enforce the arbitration agreement through equitable estoppel.
(relisted after the June 4 conference)

Kansas v. Boettger, 19-1051
Issue: Whether the First Amendment prohibits a state from criminalizing threats to commit violence communicated in reckless disregard of the risk of placing another in fear.
(relisted after the June 4 conference)

Rogers v. United States, 19-7320
Issues: (1) Whether bank robbery, 18 U.S.C. § 2113, which may be committed by unintentionally intimidating a victim or by presenting a teller with a demand note, has as an element “the use of physical force against the person or property of another” under 18 U.S.C. § 924(c)(3)(A); and (2) whether bank robbery by intimidation qualifies as a “crime of violence” under Section 924(c)’s elements clause, as the U.S. Court of Appeals for the 11th Circuit and many other circuits have held, although some other circuits have recently determined that similar state statutes do not qualify as “violent felonies” under the elements clause of the Armed Career Criminal Act.
(relisted after the June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 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, May 28 and June 4 conferences)

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 and June 4 conferences)

Posted in Worman v. Healey, U.S. v. California, Andrus v. Texas, Malpasso v. Pallozzi, Culp v. Raoul, Zadeh v. Robinson, Hunter v. Cole, Albence v. Arteaga-Martinez, Albence v. Chavez, Wilson v. Cook County, Illinois, Anderson v. City of Minneapolis, Minnesota, Corbitt v. Vickers, Henry Schein Inc. v. Archer and White Sales Inc., Archer and White Sales Inc. v. Henry Schein Inc., Kansas v. Boettger, West v. Winfield, Mance v. Barr, Rogers v. Grewal, Pena v. Horan, Cheeseman v. Polillo, Ciolek v. New Jersey, Gould v. Lipson, Brennan v. Dawson, Dawson v. Brennan, Baxter v. Bracey, Mason v. Faul, Hanks v. U.S., Rogers v. U.S., Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Sequel Watch, SCOTUSblog (Jun. 10, 2020, 11:38 AM), https://www.scotusblog.com/2020/06/sequel-watch/