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A pair of petitions on the “favorable termination rule”

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The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court has about 120 cases scheduled for resolution at Friday’s conference. The court will be reviewing only two of them for the second time. Both raise the same basic issue, involving when people can sue the government for violating their rights when the suit might call into question the validity of a criminal conviction.

In Heck v. Humphrey, a 1994 decision of the Supreme Court, prisoner Roy Heck, who was serving a manslaughter sentence for killing his wife, sued police and prosecutors for federal civil rights violations under 42 U.S.C. § 1983, alleging that they had knowingly destroyed exculpatory evidence and engaged in other misconduct to convict him. Because Heck’s claims would undermine the validity of his conviction, the court reasoned that letting his claim go forward would allow prisoners to circumvent the restrictions Congress had placed on habeas corpus proceedings. Moreover, common-law malicious prosecution claims required plaintiffs to prove that criminal proceedings had terminated in favor of the accused. Accordingly, the court held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” This is known as the “favorable termination” rule. This week, the court has relisted two cases testing the limits of that rule.

First up is Thompson v. Clark, 20-659, coming out of the U.S. Court of Appeals for the 2nd Circuit. Petitioner Larry Thompson was arrested for resisting arrest and obstructing government administration after bad diaper rash mistakenly led to a police visit for suspected child abuse. Prosecutors soon dismissed Thompson’s obstruction case “in the interests of justice.” The 2nd Circuit held that dismissal wasn’t enough to show “favorable termination” under circuit precedent requiring that a proceeding must “end[] in a manner that affirmatively indicates [a defendant’s] innocence.” Thompson alleges a circuit split between courts like the 2nd Circuit and other appellate courts that hold that Section 1983 suits can proceed if the criminal prosecution ended in a manner not inconsistent with the defendant’s innocence. (Thompson’s case also raises a claim about which party in a Section 1983 suit against police has to prove exigent circumstances existed to justify a warrantless search.)

City of Fairbanks, Alaska v. Roberts, 20-711, approaches the issue from the other direction. Respondents Marvin Roberts, George Frese, Kevin Pease and Eugene Vent were convicted of murder for the beating death of a teenager. But years later, someone else confessed to the crime and implicated others; during a court hearing, significant evidence was developed that this other group had committed the crime and the original defendants were innocent. The prosecution entered into an agreement with the four original defendants: The prosecution would move to vacate the conviction, and the four men would stipulate that their original convictions had been based on proof beyond a reasonable doubt and would release the state of Alaska and the city of Fairbanks from liability for their convictions. After their release from prison, the four men sued. A divided panel of the U.S. Court of Appeals for the 9th Circuit held that the settlement satisfied the “favorable termination” rule. Judge Lawrence VanDyke and Judge Sandra Ikuta dissented from denial of rehearing en banc. 

The “favorable termination rule” has confused courts for years. On Monday, we’ll have a better idea what the court plans to do about it.

That’s all for this week. Stay safe!

New Relists

Thompson v. Clark, 20-659
Issues: (1) Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” as the U.S. Court of Appeals for the 11th Circuit decided in Laskar v. Hurd, or that the proceeding “ended in a manner that affirmatively indicates his innocence,” as the U.S. Court of Appeals for the 2nd Circuit decided in Lanning v. City of Glens Falls; and (2) whether, when a Section 1983 plaintiff brings a Fourth Amendment claim for unlawful warrantless entry of his home and the government pursues a justification of exigent circumstances, the government has the burden to prove exigency existed (as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits have held), or whether the plaintiff has to prove its non-existence (as the U.S. Courts of Appeals for the 2nd, 7th and 8th Circuits have held) .
(relisted after the Feb. 26 conference)

City of Fairbanks, Alaska v. Roberts, 20-711
Issue: Whether vacatur of a conviction by settlement qualifies as a favorable termination under Heck v. Humphrey when the vacatur was merely the ministerial recognition of a settlement agreement between respondents and the state.
(relisted after the Feb. 26 conference)

Returning Relists

Biden v. Knight First Amendment Institute, 20-197
Issue: Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

Texas v. California, 220153
Issue: Whether California’s sanctions against Texas and Texans – prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders – are born of religious animus and violate the Constitution’s privileges and immunities clause, interstate commerce clause and guarantee of equal protection. CVSG: 12/4/2020.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Dobbs v. Jackson Women’s Health Organization, 19-1392
Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed under Planned Parenthood v. Casey‘s “undue burden” standard or Whole Woman’s Health v. Hellerstedt‘s balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.
(rescheduled before the Oct. 9, Oct. 16, Oct. 30, Nov. 6, Nov. 13, Nov. 20, Dec. 4 and Dec. 11, conferences; relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Massachusetts Lobstermen’s Association v. Coggins, 20-97
Issues: (1) Whether, in conflict with the holdings of the U.S. Courts of Appeals for the 5th and 11th Circuits and the National Marine Sanctuaries Act, the Antiquities Act applies to ocean areas beyond United States’ sovereignty where the federal government has only limited regulatory authority; and (2) whether the president can evade the Antiquities Act’s “smallest area” requirement, including designating ocean monuments larger than most states, by vaguely referencing “resources” or an “ecosystem” as the objects to be protected.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Harris v. Maryland, 20-101
Issue: Whether, when preindictment delay has caused actual prejudice to the accused’s ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Johnson v. Precythe, 20-287
Issues: (1) Whether Bucklew v. Precythe established a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiff’s opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the state’s proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuit’s refusal to permit Ernest Johnson, after the Supreme Court’s decision in Bucklew was issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

United States v. Tsarnaev, 20-443
Issues: (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19 and Feb. 26 conferences)

Small v. Memphis Light, Gas & Water, 19-1388
Issue: Whether Trans World Airlines Inc. v. Hardison, which stated that employers suffer an “undue hardship” in accommodating an employee’s religious exercise whenever doing so would require them “to bear more than a de minimis cost,” misinterprets 42 U.S.C. § 2000e(j) – which specifies that “‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” – and should be overruled.
(rescheduled before the Nov. 20, Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences; relisted after the Feb. 19 and Feb. 26 conferences)

Dalberiste v. GLE Associates, Inc., 19-1461
Issue: Whether the Supreme Court should reconsider Trans World Airlines Inc. v. Hardison and set a proper legal standard for determining what constitutes an “undue hardship” under Title VII.
(rescheduled before the Oct. 9, Nov. 20, Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences; relisted after the Feb. 19 and Feb. 26 conferences)

Chavis v. Delaware, 20-317
Issue: Whether the confrontation clause permits DNA evidence obtained as the result of a multi-analyst testing process to be introduced against the defendant at trial through one of the testing analysts who has no personal knowledge of the basis for the out-of-court testimonial statements made by the other nontestifying analysts who participated in the testing.
(relisted after the Feb. 19 and Feb. 26 conferences)

Smith v. Titus, 20-633
Issue: Whether the Sixth Amendment’s public trial guarantee, within the review apparatus imposed by the Antiterrorism and Effective Death Penalty Act of 1996, applies (1) to all phases of a defendant’s criminal trial; or (2) only to pretrial suppression hearings and juror voir dire.
(relisted after the Feb. 19 and Feb. 26 conferences)

Taylor v. Illinois, 20-5344
Issue: Whether a defendant is denied his Sixth Amendment right to be confronted with the witnesses against him when a court admits into evidence a certified autopsy report, without requiring the state to present the testimony of the author, and the state then relies on the author’s observations, not just to show cause of death, but as the sole evidence supporting its argument that the defendant fired two shots, when the defendant consistently denies firing two shots, when his denial is supported by each eyewitness and the physical evidence and when the state’s two-shot theory is crucial to its argument that the defendant committed knowing murder and not a lesser offense.
(relisted after the Feb. 19 and Feb. 26 conferences)

Recommended Citation: John Elwood, A pair of petitions on the “favorable termination rule”, SCOTUSblog (Mar. 5, 2021, 9:46 AM), https://www.scotusblog.com/2021/03/a-pair-of-petitions-on-the-favorable-termination-rule/