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Evaluating police shootings and clarifying the harmless-error rule

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, how appeals courts should apply the “harmless error” rule in criminal cases, and whether police officers’ use of force can violate the Fourth Amendment if the force, viewed in isolation, was reasonable but the necessity to use force was created by the officers’ own deliberate or reckless action.

Three months ago in Torres v. Madrid, the Supreme Court ruled that the application of physical force by police officers, with the intent to restrain, is a “seizure” for Fourth Amendment purposes, even if the suspect does not submit and is not subdued. City of Tahlequah, Oklahoma v. Bond presents another Fourth Amendment question about the use of police force. It asks the justices to clarify whether reasonable force can nonetheless violate the Fourth Amendment if officers deliberately or recklessly create the situation that leads to the need to use force.

In August of 2016, police responded to a domestic disturbance call and encountered Dominic Rollice, intoxicated and wielding a hammer, in his ex-wife’s garage. After the officers repeatedly ordered Rollice to drop the hammer, Rollice raised it over his head. The police responded by firing multiple shots, killing Rollice. The administrator of Rollice’s estate sued, alleging excessive force in violation of the Fourth Amendment. The district court granted summary judgment to the officers; however, the U.S. Court of Appeals for the 10th Circuit reversed, concluding that the 10th Circuit’s totality-of-the-circumstances analysis requires asking “whether the officers approached the situation in a manner they knew or should have known would result in escalation of the danger.” Such a finding, the court explained, could hold officers liable for shooting a suspect even if, viewed in isolation, the shooting was objectively reasonable under the Fourth Amendment.

Four years ago, in another Fourth Amendment reasonable-force case, the Supreme Court left open the question of whether an officer’s pre-seizure conduct should be used in evaluating the reasonableness of an officer’s actions. The circuits have remained split on the issue. In Tahlequah, the officers now ask the court to resolve the circuit conflict and overrule the 10th Circuit’s totality-of-the circumstances test. Alternatively, they ask the court to take the case and rule that they are entitled to qualified immunity.

Next, in Pon v. United States, Dr. David Pon, an ophthalmologist, was criminally charged with defrauding Medicare by falsely diagnosing patients and billing for treatments not rendered. During the trial, immediately prior to the close of evidence, the government introduced testimony that Pon fraudulently billed for 52 procedures on a single patient. The trial judge allowed Pon to offer an explanation for three of those procedures but prevented him from testifying about the other 49, even though Pon was prepared to tell the jury that all of the procedures were justified. Pon was later convicted and received a 10-year sentence.

On appeal, the U.S. Court of Appeals for the 11th Circuit upheld the conviction under the “harmless error” rule. The 11th Circuit assumed that the trial judge erred by refusing to allow Pon to respond to the government’s evidence, but the court concluded that the error was harmless in light of the “overwhelming evidence of guilt” that the government presented at trial. Pon argues that appellate courts applying the harmless-error rule must consider the defense’s evidence and the error’s potential effect on the jury’s view of the defense’s case, rather than merely focus on the amount of government evidence. Claiming that the circuit courts are “intractably divided” over the proper application of the harmless-error rule, his petition asks the justices to weigh in.

These and other petitions of the week are below:

City of Tahlequah, Oklahoma v. Bond
Issues: (1) Whether use of force that is reasonable at the moment it is employed can nonetheless violate the Fourth Amendment if the officers recklessly or deliberately created the need to use force; and (2) whether it was clearly established for qualified immunity purposes that advancing toward an intoxicated individual wielding a deadly weapon inside a garage was a “reckless” act that would render unconstitutional any subsequent use of lethal force in response to a threat to officer safety.

Public Watchdogs v. Southern California Edison Company
Issue: Whether the Hobbs Act deprives a federal district court of subject matter jurisdiction over state law and Price-Anderson Act claims asserted by a private actor against private party Nuclear Regulatory Commission licensees, on the ground such claims are “ancillary or incidental to” an NRC final order.

Simmons v. United States
Issue: Whether a court can summarily dismiss a pro se habeas petition as untimely for failure to adequately allege a causal connection when petitioner explains how a government impediment “prevented” him from filing timely but does not allege with specificity how he discovered and attempted to remedy that impediment.

Pon v. United States
Issue: Whether an appellate court reviewing a cold criminal trial record may determine that an error at trial was harmless by applying an “overwhelming evidence of guilt” test that considers only the potential effect of the error on the government’s case and not on the defense.

Recommended Citation: Mitchell Jagodinski, Evaluating police shootings and clarifying the harmless-error rule, SCOTUSblog (Jun. 19, 2021, 7:57 AM),