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Petitions of the week

Sovereign immunity and defective indictments

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether Turkey is immune from suit from protesters injured by security forces at its ambassador’s residence, and whether a defective indictment for a federal gun crime was harmless or structural error.

Turkey claims immunity over May 2017 security altercation with protesters 

Republic of Turkey v. Usoyan raises a question under the Foreign Sovereign Immunities Act in a case following a violent clash outside the Turkish ambassador’s residence in Washington, D.C, while Turkey’s president, Recep Tayyip Erdogan, was visiting. Turkey’s presidential security detail physically intervened against protesters outside the residence on May 16, 2017. After injured protesters sued for assault, battery, and other claims, Turkey asserted its sovereign immunity from suit in the United States. Turkey points to the text of the FSIA, which provides it immunity over “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.”

The district court denied Turkey’s motion to dismiss because – applying a test from 1988’s Berkovitz v. United States – the security acts, though discretionary, were not grounded in social, economic, or political policy of a nature and quality that Congress intended to shield. The U.S. Court of Appeals for the District of Columbia Circuit affirmed, reasoning that the security actions were not “plausibly grounded in considerations of security-related policy” because they were “not plausibly related to protecting President Erdogan.” Among its arguments in its petition, Turkey suggests that other countries might reciprocally abrogate sovereign immunity for American security forces facing tort claims abroad.

Appellate review of defective indictments as harmless error or structural error

Leonard v. United States asks the justices to decide how courts should analyze errors in criminal indictments. Taresse Leonard’s indictment alleged that he “possessed a firearm and ammunition in and affecting interstate and foreign commerce, having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, and did so knowingly, in violation of” federal law. Three days before Leonard’s trial, however, the Supreme Court released its decision in Rehaif v. United States. In Rehaif, the justices ruled that the relevant federal law required the prosecution to prove that the defendant knew not only that he possessed a firearm, but also that he belonged to a category of persons barred from doing so. Leonard filed a motion to dismiss, arguing that his charge’s clause, “and did so knowingly,” modified only his possession of the firearm, not his status as a convicted felon.

After the district court denied the motion (and sentenced Leonard to 20 years in prison), the U.S. Court of Appeals for the 11th Circuit affirmed. The 11th Circuit applied “harmless-error review,” reasoning that because Leonard was in fact a convicted felon, reversing his conviction was not warranted. In his petition, Leonard argues that an indictment that is defective for missing an essential element is a structural error requiring dismissal, as, he argues, other federal courts of appeals have held.

These and other petitions of the week are below:

Intel Corporation v. VLSI Technology LLC
Issue: Whether the U.S. Court of Appeals for the Federal Circuit may review, by appeal or mandamus, a decision of the U.S. Patent and Trademark Office denying a petition for inter partes review of a patent, when review is sought on the grounds that the denial rested on an agency rule that exceeds the PTO’s authority under the Leahy-Smith America Invents Act, is arbitrary or capricious, or was adopted without required notice-and-comment rulemaking.

Republic of Turkey v. Usoyan
Issues: (1) Whether the discretionary function rule within the Foreign Sovereign Immunities Act—which preserves foreign sovereign immunity for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused”—applies to claims based upon a presidential security detail’s use of force during an official state visit to the United States, when they are acting within the scope of their employment; (2) whether the U.S. Court of Appeals for the District of Columbia Circuit’s opinion conflicts with relevant decisions of the Supreme Court interpreting the policy prong of the discretionary function rule by authorizing judges to second-guess whether a visiting presidential security detail’s discretionary use of physical force was “plausibly” related to protecting their president, rather than determining whether a presidential security detail’s decisions to physically engage with encroaching civilians is “susceptible to policy analysis”; and (3) which party bears the burden of proving that the discretionary function rule does not apply.

Leonard v. United States
Issue: Whether the erroneous denial of a timely raised motion to dismiss an indictment omitting an essential element is structural error requiring dismissal or is instead subject to harmless-error review.

Recommended Citation: Andrew Hamm, Sovereign immunity and defective indictments, SCOTUSblog (Feb. 18, 2022, 5:23 PM),