The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Last week the federal government encouraged the justices to review a pair of petitions involving two nearly identical laws in Florida and Texas that seek to regulate how large social media platforms can block, remove, or demonetize user content. Lawmakers in both states passed the bills to address what they perceive as censorship of conservative viewpoints; the platforms countered that the laws violate their own First Amendment rights. This week, we highlight cert petitions that ask the court to consider, among other things, a First Amendment challenge against efforts by another populous state, California, to regulate online content.

In 2018, California established an Office of Election Cybersecurity to combat misinformation posted online about voting and the electoral process. Overseen by California’s secretary of state, the office works closely with social media companies to identify posts about elections that might violate the platforms’ own guidelines on misinformation.

Although the ultimate decision about whether to remove content rests with the platforms, the state’s designation has overwhelmingly proven decisive. During the 2020 election cycle, for example, 98% of the nearly 300 posts that the Office of Election Cybersecurity had flagged as potential misinformation for Facebook and Twitter were removed.

Rogan O’Handley is an attorney and active political commentator on Twitter under the handle @DC_Draino. A week after the 2020 election, he posted a tweet calling for ballots in California to be audited. “Election fraud is rampant nationwide,” he wrote, “and we all know California is one of the culprits[.] Do it to protect the integrity of that state’s elections[.]” The Office of Election Cybersecurity flagged the message for Twitter, which added a warning to the tweet that O’Handley’s claim was disputed and issued a “strike” against his account.

In February 2021, Twitter suspended O’Handley’s account after issuing four additional strikes against him under more stringent content-moderation policies instituted following the Jan. 6, 2021, attack on the U.S Capitol. (O’Handley’s account was reactivated this year.)

Four months after his account was suspended, O’Handley filed a lawsuit against Twitter and California Secretary of State Shirley Weber. O’Handley argued that Twitter and California had acted in tandem to restrict his First Amendment rights.

A federal district court in California dismissed the claims, and the U.S. Court of Appeals for the 9th Circuit upheld that decision. The court of appeals ruled that although “it is possible to draw a causal line from the OEC’s flagging of the November 12th post to O’Handley’s suspension,” there was no “state action” for O’Handley to challenge under the First Amendment. California certainly exercised governmental authority when it flagged O’Handley’s tweet, the 9th Circuit reasoned, but it took no explicit action restricting his speech. And although Twitter did limit O’Handley’s speech, the court explained, it was following its own rules, rather than acting on the state’s behalf.

In O’Handley v. Weber, O’Handley asks the justices to grant review and reverse the 9th Circuit’s decision. O’Handley argues that the distinction between California’s flagging of his tweet and Twitter’s disciplinary response is illusory: Twitter had never monitored his content before it was flagged by the Office of Election Cybersecurity, he contends, and it would not have subjected him to greater scrutiny had the state not brought attention to his account. He urges the court to reinstate his lawsuit so he can introduce further evidence that California exercises coercive authority over online content.

A list of this week’s featured petitions is below:

O’Handley v. Weber
22-1199
Issues: (1) Whether the complaint plausibly alleged that state officials acted under color of state law in violation of the First Amendment when a state agency, which exists to police online speech, singled out petitioner’s disfavored political speech for Twitter to punish and Twitter complied; and (2) whether the government speech doctrine empowers state officials to tell Twitter to remove political speech that the state deems false or misleading.

Argent Trust Company v. Harrison
23-30
Issue: Whether a participant in a plan governed by the Employee Retirement Income Security Act who asserts statutory claims under that statute can be compelled, pursuant to a binding arbitration provision, to submit his claims to individual arbitration.

Pye v. Emmons
23-31
Issues: (1) Whether the U.S. Court of Appeals for the 11th Circuit’s novel construction of 28 U.S.C. § 2254(d)— under which a state prisoner is ineligible for federal habeas relief even when the state court has “unreasonabl[y]” rejected his claim so long as the federal court can provide some reasonable “justification” for the state court’s “reason” for denying relief — is inconsistent with the statutory text and in direct conflict with this court’s decision in Wilson v. Sellers; and (2) whether 28 U.S.C. § 2254(e)(1) applies when a state prisoner seeks federal habeas relief solely on the state-court evidentiary record.

The post Once-suspended Twitter user argues California violated his First Amendment rights appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

So-called “blind mules” are people who drive across the border without knowing their car has been packed with drugs. These people sometimes escape criminal charges because, to convict someone of trafficking drugs into the country, the government has to prove that they knew they were carrying controlled substances. This week, we highlight cert petitions that ask the court to consider, among other things, what role government expert witnesses can play in proving that a blind mule was not, in fact, blind to the drugs in their vehicle.

In August 2020, Delilah Diaz was driving from Mexico back to her home in California. At the border, an officer asked Diaz to roll down her window. The glass made a crunching noise as it slid into the doorframe. Agents searched the car and found nearly 28 kilograms of methamphetamine hidden inside the door panels.

The government charged Diaz with trafficking drugs into the country. Diaz insisted that she was a blind mule. The car, Diaz told the agents, belonged to her boyfriend living in Mexico, who let her drive it back to California after her daughter returned early in the car they originally drove down in together. She maintained that she had no idea about the hidden meth.

At trial, prosecutors called a Homeland Security agent as an expert witness. The agent testified that, in the majority of cases, couriers know when they are transporting large quantities of drugs across the border. Traffickers are rarely willing to risk hefty hauls of their product – and potential profit – on blind mules, the agent explained. The jury found Diaz guilty of drug trafficking, and a federal district court in California sentenced her to seven years in prison.

Diaz appealed her conviction, arguing that it was based on invalid evidence. The agent’s testimony that most large-scale drug couriers know they are carrying drugs violated the Federal Rules of Evidence, Diaz contended. Those rules prevent expert witnesses from “stat[ing] an opinion” about whether someone had a mental state or condition relevant to a criminal charge.

The U.S. Court of Appeals for the 9th Circuit affirmed Diaz’s conviction. Relying on a prior 9th Circuit decision, the court ruled that the DHS agent’s testimony complied with evidentiary rules. Under that decision, the court explained, expert witnesses are only barred from stating an express opinion about whether a particular person knew they were committing a crime, not from stating general opinions about similar defendants and the likelihood of their culpability.

In Diaz v. United States, Diaz asks the justices to grant review and reverse the 9th Circuit’s decision. She argues that nothing in the evidentiary rules makes an exception for statements of opinion like that of the DHS agent in her case, who, in her view, all but expressly said that he believed she was aware of the meth hidden in the car doors. Diaz contends that the testimony would have been thrown out in the U.S. Court of Appeals for the 5th Circuit, which has repeatedly excluded “testimony identical to the agent’s” in Diaz’s case. The 5th Circuit, she notes, includes Texas and, therefore, nearly all of the rest of the southern border.

A list of this week’s featured petitions is below:

E.I. du Pont de Nemours & Co. v. Abbott
23-13
Issue: Whether nonmutual offensive collateral estoppel can be applied to make the results of a handful of unrepresentative bellwether trials binding on the defendant in all pending and future cases in a multi-district litigation.

Diaz v. United States
23-14
Issue: Whether in a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — Federal Rule of Evidence 704(b) permits a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters.

Harrow v. Department of Defense
23-21
Issue: Whether the 60-day deadline in 5 U.S.C. § 7703(b)(1)(A) for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional.

The post Self-proclaimed “blind mule” challenges expert testimony on drug-trafficking charge appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

The judge-made doctrine of qualified immunity generally shields government officials from liability unless they violate “clearly established” law. This week, we highlight cert petitions that ask the court to consider, among other things, whether a prison official is entitled to qualified immunity after he forced an elderly diabetic man into a shower filled with feces and then prevented him from cleaning his open wounds for a week.

In 2018, then 67-year-old Lynn Hamlet was incarcerated in the Martin Correctional Institution, a state prison in southern Florida. After waking from a diabetic coma, Hamlet was caught sneaking a bag of rice out of the prison cafeteria. Hamlet contends that he was involved in a long-running dispute with the prison guard who discovered that he had taken the rice; the guard, Hamlet says, had him placed in solitary confinement after the two exchanged words.

A week later, Hamlet was allowed to use the handicapped shower. As the water level in the shower rose, Hamlet noticed a potato-chip bag filled with human feces and urine floating on the surface. He asked Officer Brandon Hoxie, who had escorted him to the shower, to let him out of the shower to avoid exposing the open wounds on his ankles, a result of his diabetes, to the feces and urine. Hamlet alleges that Officer Hoxie instead accused him of being the source of the feces and urine and, after initially letting him out of the shower, forced him back inside for another 30 to 40 minutes.

When Hamlet returned to his cell, he found that Hoxie had taken away his sheets and clean clothes; he also barred Hamlet from showering for another week. Meanwhile, Hamlet tried to wash the feces from his ankles with the only tool remaining in his cell: water from the toilet bowl. Unable to clean his wounds, Hamlet became ill and and eventually ended up in the hospital, where he received his first shower since the incident. Ultimately, a severe bacterial infection compromised a valve in Hamlet’s heart, requiring emergency surgery and a lengthy hospital stay.

Hamlet went to court, arguing that Hoxie had violated his Eighth Amendment right to be free of cruel and unusual punishment by exposing him to feces in the shower and preventing him from cleaning his wounds for a week afterwards. A federal district court in Florida ruled for Hoxie.

The U.S. Court of Appeals for 11th Circuit affirmed. The court held that Hoxie was entitled to qualified immunity because he did not violate a clearly established right. Hamlet had pointed to a prior 11th Circuit decision denying qualified immunity to a prison officer who refused to remove a man’s waist chains for two days and then made him sit in his own excrement while preventing nurses from cleaning him. The 11th Circuit concluded, however, that Hoxie could not reasonably have known that decision prohibited his conduct towards Hamlet because his exposure to feces in the shower “was different in both degree and kind.”

In Hamlet v. Hoxie, Hamlet asks the justices to grant review and reverse the 11th Circuit’s ruling. He argues that there is a long history of court decisions, both in the 11th Circuit and around the country, establishing that prolonged exposure to human feces while in custody is unconstitutional. But even if that right was not clearly established, Hamlet contends, the Supreme Court has recently ruled that prison officials who forced a man to spend six days naked in cells contaminated with human feces and sewage were not entitled to qualified immunity because – regardless of whether they had violated a clearly established right – the man’s treatment was so glaringly egregious. Hamlet argues that the same reasoning should apply to his case.

A list of this week’s featured petitions is below:

Foremost Title & Escrow Services, LLC v. FCOA, LLC
22-1249
Issue: Whether the U.S. Court of Appeals for the 11th Circuit is correct to relieve an incontestable trademark-holder of its burden to prove that its mark is strong and likely to be confused with a junior mark.

Coinbase, Inc. v. Suski
23-3
Issue: Whether, where parties enter into an arbitration agreement with a delegation clause, an arbitrator or a court should decide whether that arbitration agreement is narrowed by a later contract that is silent as to arbitration and delegation.

Hamlet v. Hoxie
23-7
Issues: (1) Whether it is “clearly established” for purposes of qualified immunity that the Eighth Amendment bars a prison official from forcing a person with diabetes and open wounds to endure prolonged and unnecessary exposure to feces; and (2) whether the court should overrule Procunier v. Navarette and hold that qualified immunity under 42 U.S.C. § 1983 does not extend to a suit alleging that a prison guard subjected the plaintiff to unlawful conditions of confinement, because similar state officials were not immune from similar suits at common law.

The post Florida man contests qualified immunity after infection from forced exposure to human feces appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Last summer, the Supreme Court ruled in Siegel v. Fitzgerald that a 2017 law permitting debtors in bankruptcy proceedings in North Carolina and Alabama to pay lower administrative fees than those paid by debtors in other states violated the Constitution’s requirement that Congress provide uniform bankruptcy laws nationwide. That decision left open the question of what, if anything, to do about the debtors who had paid the higher fees. This week, we highlight cert petitions that ask the court to consider, among other things, whether the solution is simply to make the fees uniform going forward, or instead to give a refund to debtors who paid higher fees in the past.

The United States has 94 districts for bankruptcy proceedings in federal court. Most of those districts operate under the United States Trustee Program, housed in the Department of Justice. Six districts, however – those in Alabama and North Carolina – are grandfathered into a different system called the Bankruptcy Administrator Program that is overseen directly by the courts.

Bankruptcy proceedings can often be lengthy and therefore expensive to administer. The trustee program is funded by fees, most of which are paid by companies that file for bankruptcy under Chapter 11 of the Bankruptcy Code, which provides for reorganization. The law that the court struck down in Siegel required a significant five-year increase in fees to make up for a shortfall in funding for the trustee program; however, the federal judiciary, which sets fees for the administrator program, did not raise its fees at the same time, leading to sometimes substantial disparities between the two programs.

In 2016, a group of companies affiliated with John Q. Hammons Hotels and Resorts filed for bankruptcy. Because the proceedings took place in Kansas, the companies paid the regular administrative fees for the trustee program. In 2020, they asked the bankruptcy court for a partial refund, on the ground that the discrepancy between the fees for the trustee program and the administrator program violated the Constitution.

The bankruptcy court rejected that request, but the U.S. Court of Appeals for the 10th Circuit reversed. The court of appeals agreed with the companies that charging debtors in trustee districts higher fees was unconstitutional. And because it could not issue a ruling that increased the fees in Alabama and North Carolina, the 10th Circuit agreed that the solution was for the government to refund the companies the difference between the fees that they paid and what they would have paid under the administrator program.

The government appealed that ruling to the Supreme Court in early 2022, asking the justices to hold its petition for the court’s decision in Siegel and then send the case back to the 10th Circuit. The court did so last June.

Looking at the case once more, the 10th Circuit reissued its prior ruling without elaboration. Although the decision in Siegel ultimately endorsed the 10th Circuit’s reasoning on uniformity, it said nothing about a remedy for the constitutional violation, because the court of appeals in that case had not addressed the question. In light of that silence, the 10th Circuit reinstated its decision ordering a partial refund.

In Office of the United States Trustee v. John Q. Hammons Fall 2006, LLC, the government asks the justices to grant review and decide what, if any, remedy the companies are entitled to. The government argues that the justices rarely grant requests for retroactive relief, and they should not do so here. That is especially so, the government contends, when Congress made clear that it only intended to provide a remedy going forward by amending the law that the court ultimately struck down in Siegel to require administrator districts to charge debtors the same fees as those levied in trustee districts, with no mention of providing a refund to debtors in trustee districts who had paid higher fees in the past.

A list of this week’s featured petitions is below:

Stirling v. Stokes
22-1234
Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit defied this court’s remand instruction and circumvented 28 U.S.C. § 2254(e)(2)’s limitations on federal-court authority by finding forfeiture based on the state not having offered the statutory argument as an alternative ground to deny relief on the claim when the state was defending on appeal the district court’s sole finding of default; and (2) whether, if the state did forfeit its argument, the 4th Circuit erred in granting relief on a defaulted ineffective-assistance-of-trial-counsel claim by violating basic principles of Strickland v. Washington that require reviewing courts to afford deference to reasonable strategy and that the whole of the evidence be considered in a prejudice analysis.

Office of the United States Trustee v. John Q. Hammons Fall 2006, LLC
22-1238
Issue: Whether the appropriate remedy for the constitutional uniformity violation found by this court in Siegel v. Fitzgerald is to require the United States Trustee to grant retrospective refunds of the increased fees paid by debtors in U.S. Trustee districts during the period of disuniformity, or is instead either to deem sufficient the prospective remedy adopted by Congress or to require the collection of additional fees from a much smaller number of debtors in Bankruptcy Administrator districts.

Files v. United States
22-1239
Issue: Whether Section 404 of the First Step Act authorizes district courts to impose a reduced sentence for both crack-cocaine offenses and related offenses that are part of the same overall sentence package.

The post Government seeks clarity on remedy after recent bankruptcy decision appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Over 40 years ago, the Supreme Court ruled in Baker v. McCollan that a man who was arrested and kept in jail for three days over a holiday weekend before police discovered that they had mistaken him for a suspect with the same name did not suffer any violation of his constitutional rights. But in other cases, the justices explained, the Constitution might bar police from detaining someone whose name matches an outstanding arrest warrant, but who claims he is the victim of mistaken identity, for a long time. This week, we highlight cert petitions that ask the court to consider, among other things, whether Baker’s three-day period is a strict rule or instead a mere guidepost in cases of arrest due to mistaken identity.

David Sosa is a jet-engine engineer in Martin County, Florida. He was arrested there twice after he was pulled over for traffic violations and police officers found an outstanding warrant for a David Sosa for selling crack cocaine in Texas in 1992. During both incidents, Sosa insisted he was innocent and pointed out that he did not match any of the identifying information in the decades-old arrest warrant, including birth date, tattoos, height, and weight.

After Sosa’s first arrest in 2014, he was detained for a few hours before police scanned his fingerprints and confirmed that they had the wrong person. But Sosa’s second arrest in 2018 was a different story. Sosa repeatedly told various officers after he was arrested on a Friday both that he was not the man they were looking for and that this mistake had happened before. However, no one tried to confirm Sosa’s identity until Monday morning, when officers scanned his fingerprints and released him.

Sosa went to federal court, arguing that the officers violated his constitutional rights. A federal district court in Florida dismissed his lawsuit. However, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit reinstated it. The panel concluded that Sosa had plausibly alleged that the officers violated his right to due process by refusing to verify his identity for three days when they should have known he was innocent.

The officers sought review by the full 11th Circuit, which disagreed with the panel. A divided appeals court ruled that Sosa could not proceed with his claim because the Supreme Court’s decision in Baker bars plaintiffs from suing police for prolonged detention if they were only kept in jail for three days.

In Sosa v. Martin County, Sosa asks the justices to reverse the full 11th Circuit’s ruling and reinstate his lawsuit once more. He argues that Baker does not establish a bright-line rule that a plaintiff cannot sue police if he is only held in jail for three days. Instead, Sosa contends, it indicates that courts should consider the totality of the circumstances when deciding whether police should have known someone they arrested was innocent. He is supported by a friend-of-the-court brief from a group of other David Sosas around the country. Despite being protected from Sosa’s predicament where they live, the other David Sosas argue, they would be powerless against a similar violation of their constitutional rights if they traveled to Florida, Georgia, or Alabama under the 11th Circuit’s ruling.

A list of this week’s featured petitions is below:

Sosa v. Martin County, Florida
22-1145
Issues: (1) Whether Baker v. McCollan requires courts to apply a reasonable, totality-of-the-circumstances analysis to a claim of overdetention, or whether the case only protects against mistaken overdetention for longer than three days; and (2) whether Baker’s right against overdetention falls under the Fourth Amendment’s proscription against unreasonable searches and seizures or the 14th Amendment’s guarantee of substantive due process.

Guzman v. Sturgis
22-1211
Issues: (1) Whether, when government officials state their intent to continue to violate an individual’s constitutional rights while actually violating them, those statements can be taken at face value for purposes of determining the subjective intent of the government official in regard to a claim for deliberate indifference and for purposes of determining the retaliatory intent element of a retaliation claim; and (2) whether government officials’ taunts of an individual during their violation of the individual’s constitutional rights are sufficient to support the causation element of a retaliation claim where the taunts are ongoing during the violation.

Ferguson v. United States
22-1216
Issue: Whether 28 U.S.C. § 2255 limits a district court’s discretion to consider—among other circumstance-specific factors—legal errors in prior proceedings as “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) as amended by the First Step Act.

Idaho v. Dorff
22-1226
Issues: (1) Whether a drug-detection dog physically intrudes upon a constitutionally protected area and therefore conducts an unreasonable search under the Fourth Amendment when it touches the exterior of a lawfully stopped car while sniffing for potential contraband; and (2) even if touching the exterior of a lawfully stopped car is a physical intrusion of a constitutionally protected area, whether the actions of a drug-detection dog, taken without direction, prompting, or facilitation by officers, are attributable to the government for purposes of the Fourth Amendment.

The post Florida man contests three-day rule in case of jailing over mistaken identity appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Rents in New York City are among the highest in the country and rising. According to a report from brokerage firm Douglas Elliman, median rents in Manhattan reached a record high in May of $4,395 per month. Meanwhile, only a handful of residential units in the city are rent-controlled, subject to tight limits on increases in rent. Roughly a third of New York’s housing stock qualifies for a decades-old regulatory regime known as rent stabilization, however, which comes with more modest limits on rent increases and a host of other tenant protections. This week, we highlight cert petitions that ask the court to consider, among other things, whether New York’s recently amended rent-stabilization law is, in effect, a “taking” of landlords’ property without “just compensation” in violation of the Fifth Amendment.

First enacted in 1969, New York’s Rent Stabilization Law governs all apartments in buildings built before 1974 that have six or more units. Owners of rent-stabilized apartments cannot raise rents above a limit set annually by a city-wide oversight board, and they generally must renew a tenant’s lease except in a narrow set of circumstances, such as when the tenant fails to pay rent.

The state legislature has repeatedly amended the rent-stabilization law in response to ongoing pressure from both tenants, who argue that rents remain excessive, and landlords, who insist that the rising costs of maintaining housing have outstripped their ability to increase rents. The most recent amendment in 2019 added conditions on landlords’ ability to take rent-stabilized units off the market for personal use and repealed exceptions to the rent-increase limits for high-income or longtime tenants.

Undeterred by a long history of failed legal challenges to the rent-stabilization law, a group of trade associations representing owners of rent-stabilized apartments went to federal court to challenge the amended law. They raised two primary arguments against it.

First, the landlords argued that the law’s restrictions on reclaiming rent-stabilized apartments from current tenants are an uncompensated physical taking of their property under the Supreme Court’s 2021 ruling in Cedar Point Nursery v. Hassid, which struck down a California law that gave union organizers the right to enter farm property to speak with agricultural workers. Second, they argued that the law’s rent-increase limits are a so-called “regulatory” taking of their property because they require landlords to bear the bulk of the costs to provide sufficient affordable housing, when they should be shared by New York taxpayers as a whole.

A federal district court in New York rejected both claims, and the U.S. Court of Appeals for the 2nd Circuit affirmed. The justices’ decision in Cedar Point does not negate the court’s long history of upholding laws regulating landlord-tenant relationships like the rent-stabilization law against physical-takings challenges, the 2nd Circuit explained, because landlords voluntarily enter into rental agreements with tenants. The court of appeals also disagreed that rent-increase limits are a regulatory taking. That theory was proposed in a dissent by Justices Antonin Scalia and Sandra Day O’Connor from the court’s 1988 decision in Pennell v. City of San Jose; it has never, the 2nd Circuit explained, been adopted by a majority of the court.

In Community Housing Improvement Program v. City of New York, the landlords – supported by 14 friend-of-the-court briefs from business and housing-industry groups – ask the justices to reverse the 2nd Circuit’s decision and allow their lawsuit to proceed. They point out that the U.S. Court of Appeals for the 8th Circuit struck down a COVID-19 eviction moratorium in Minnesota as a physical taking under the justices’ decision in Cedar Point because – like the New York law, they argue – it infringed upon the “right to exclude existing tenants” from private property. And in the hope that a majority of the court now agrees with Scalia and O’Connor, the landlords renew their contention that the law’s limits on rent increases are an unconstitutional regulatory taking. “Subsidizing needy tenants,” they write, “is a public good that should be paid for with public funds.”

A list of this week’s featured petitions is below:

Community Housing Improvement Program v. City of New York, New York
22-1095
Issues: (1) Whether the provisions of New York’s rent-stabilization law that prevent a property owner from regaining exclusive possession and control of her property after the expiration of a lease effect per se physical takings; and (2) whether, by mandating consideration of tenant ability to pay in setting maximum rents, the law forces a subset of owners “alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,” and thereby effects a regulatory taking as outlined in Pennell v. City of San Jose.

Shire U.S., Inc. v. Blackburn
22-1180
Issue: Whether a state-law claim is preempted if it places a duty on a drug manufacturer to unilaterally change language approved by the Food and Drug Administration that appears in the highlights section of a drug label.

Columbia Falls Aluminum Company, LLC v. Atlantic Richfield Company
22-1207
Issue: Whether a district court’s equitable allocation of environmental-response costs pursuant to Section 113(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act is properly reviewed on appeal only for clear error or for abuse of discretion.

The post Landlords challenge New York’s longstanding rent-stabilization regime appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Someone who files a lawsuit over wrongful treatment might be pleased if the defendant stops its allegedly harmful conduct, rendering the case moot – that is, no longer a live case or controversy. But under the so-called voluntary cessation doctrine, plaintiffs may continue to press their case unless the defendant shows that it cannot simply resume its prior behavior once the lawsuit is thrown out. This week, we highlight cert petitions that ask the court to consider, among other things, whether the government can extinguish a lawsuit alleging that an Oregon man was wrongly placed on the No Fly List by removing him from the list and promising not to put him back on it “based on the currently available information.”

In the wake of the Sept. 11 terrorist attacks, then-President George W. Bush authorized the Federal Bureau of Investigation to maintain a list of people who posed too significant a risk to national security to board a commercial flight through United States airspace. The FBI maintains this list on behalf of the Department of Homeland Security; agents in the Transportation Security Administration, a subset of DHS, consult the list during airport security screenings.

Yonas Fikre is a U.S. citizen of Eritrean descent. While traveling to Sudan in 2010, Fikre was questioned by FBI agents about his ties to a mosque in his hometown of Portland, Oregon. The agents informed Fikre that he would be unable to return to the U.S. because he had been placed on the No Fly List. However, they offered to remove him from the list if he agreed to become an FBI informant.

Fikre refused. Instead, he flew to the United Arab Emirates, where he was imprisoned and tortured by that government’s secret police. Fikre alleges that an interrogator told him the questioning came at the request of the FBI. He was eventually released and, unable to return home to the U.S., sought asylum with a relative in Sweden. The Swedish government ultimately denied Fikre’s asylum request and – after DHS denied his petition to be taken off the No Fly List – flew him by private jet back to Portland.

While still in Sweden, Fikre filed a lawsuit against the FBI. He argued that the agency violated his right to due process under the Fifth Amendment by labeling him a flight risk and failing to provide an adequate way to challenge his status. While the lawsuit was pending, the FBI revised its initial determination and removed Fikre from the list. The government then sought to dismiss the case as moot.

A federal district court in Oregon granted the government’s request. However, the U.S. Court of Appeals for the 9th Circuit reinstated Fikre’s lawsuit. The 9th Circuit ruled that the case was not moot because, under the voluntary cessation doctrine, the government had not made it “absolutely clear” that the FBI would never again label Fikre a flight risk for the same reason it did so in the first place.

With the case back on, an FBI official filed a court declaration stating that Fikre “will not be placed on the No Fly List in the future based on the currently available information.” The district court held that this declaration satisfied the 9th Circuit’s standard and dismissed the case once more.

Again, the 9th Circuit disagreed. The FBI’s declaration did not concede that it was wrong to place Fikre on the No Fly List originally, the court of appeals explained; indeed, it defended that decision as “in accordance with applicable policies and procedures.” Absent any indication that the FBI had changed those policies or procedures to provide additional safeguards, the appeals court reasoned, Fikre’s flight status remained at risk should the “currently available information” change.

In Federal Bureau of Investigation v. Fikre, the FBI asks the justices to weigh in and reverse the 9th Circuit’s most recent ruling. The government argues that two other circuits have correctly upheld the dismissal of similar lawsuits over placement on the No Fly List. The 9th Circuit’s holding that the FBI must go further and concede wrongdoing to have Fikre’s case dismissed, the government argues, “confuses mootness with an admission of liability on the merits.”

A list of this week’s featured petitions is below:

Macquarie Infrastructure Corp. v. Moab Partners, L.P.
22-1165
Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding that a failure to make a disclosure required under Item 303 of SEC Regulation S-K can support a private claim under Section 10(b) of the Securities Exchange Act of 1934, even in the absence of an otherwise misleading statement.

Center for Medical Progress v. Planned Parenthood Federation of America
22-1168
Issue: Whether First Amendment scrutiny applies when a plaintiff’s claim for damages is based on a defendant’s public speech, even if a plaintiff sues under a law of general application or attempts through creative pleading to recharacterize publication damages as something else.

LeBlanc v. Crittendon
22-1171
Issues: (1) Whether high-ranking state prison officials violate a prisoner’s constitutional rights by failing to promulgate policies cajoling independent, locally elected sheriffs to do their jobs timely and efficiently; (2) whether any clearly established law warned Louisiana Department of Public Safety and Corrections officials that they would be held personally liable for failing to promulgate such policies; and (3) whether any clearly established law warned state prison officials that they would be held personally liable for failing to respond for 17 days to reports of phone calls from family members of persons incarcerated in a local parish jail.

Federal Bureau of Investigation v. Fikre
22-1178
Issue: Whether respondent’s claims challenging his placement on the No Fly List are moot given that he was removed from the No Fly List in 2016 and the government provided a sworn declaration stating that he “will not be placed on the No Fly List in the future based on the currently available information.”

The post FBI asks justices to wade into No Fly List dispute appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

People for the Ethical Treatment of Animals conducts investigations around the country as part of its efforts to combat the mistreatment of animals. To accomplish these exposés, PETA’s members occasionally pose as employees of other businesses and secretly record workplace operations taking place in private areas. This week, we highlight cert petitions that ask the court to consider, among other things, PETA’s First Amendment challenge to a North Carolina law that imposes monetary damages on undercover workplace recording.

The law at issue was enacted in response to a dispute between Food Lion and ABC News in North Carolina in the late 1990s. The grocery-store chain sued the news network after two of its reporters posed as Food Lion employees and used hidden cameras and microphones to record in nonpublic areas for a news segment on unsafe food-handling practices. The U.S. Court of Appeals for the 4th Circuit ruled in favor of Food Lion, although the North Carolina Supreme Court later undid a part of that ruling.

Seeking to codify the 4th Circuit’s decision, the state legislature passed the North Carolina Property Protection Act in 2015. As relevant here, the law allows an employer to sue for money damages any employee who “without authorization records images or sound occurring within” the nonpublic areas of the employer’s private property “and uses the recording to breach the person’s duty of loyalty to the employer.”

Soon after the act’s passage, PETA and a number of other food-safety and animal-welfare groups went to court in an effort to prevent the state from enforcing the law against their members. A federal district court in North Carolina ultimately invalidated much of the law. The court reasoned that the recording prohibition was a content-based restriction on speech because it targets speech critical of an employer’s business, and that it therefore triggers a high level of First Amendment scrutiny – a bar that, the court concluded, the law could not pass.

The 4th Circuit upheld that ruling, in part. It rejected PETA’s contention that the law is always unconstitutional, theorizing that the prohibition could be used in a number of ways consistent with the First Amendment. However, it also rejected the state’s contention that the law does not violate the First Amendment because it does not target speech, but instead applies to all kinds of conduct, including trespass and theft. “Laws cast in broad terms can restrict speech as much as laws that single it out,” the majority wrote. At least as applied to newsgathering efforts by PETA and the other groups, the appeals court concluded, the recording ban is unconstitutional.

In Stein v. People for the Ethical Treatment of Animals, Inc., North Carolina Attorney General Josh Stein asks the justices to grant review and reverse the 4th Circuit’s decision. The state contends that the courts of appeals are divided over whether and when unauthorized recordings on nonpublic property are constitutionally protected speech. Moreover, Stein adds, the 4th Circuit’s decision is wrong on the merits.

A trade association representing farmers in North Carolina filed a companion petition urging the justices to review the 4th Circuit’s ruling. Like the attorney general, the association argues that the law is a valid exercise of the state’s power to protect property and business interests.

A list of this week’s featured petitions is below:

Center for Medical Progress v. National Abortion Federation
22-1135
Issue: Whether the district court’s suppression of speech about a high-profile and highly charged issue of public debate is an unconstitutional prior restraint.

Stein v. People for the Ethical Treatment of Animals, Inc.
22-1150
Issue: Whether the First Amendment prohibits applying state tort law against double-agent employees who gather information, including by secretly recording, in the nonpublic areas of an employer’s property and who use that information to breach their duty of loyalty to the employer.

City of Arlington, Texas v. Crane
22-1151
Issues: (1) Whether, where a suspect with an outstanding felony arrest warrant refuses repeated commands to turn off his car and exit the vehicle, clearly states he will not surrender, struggles with an officer in the vehicle while revving the car’s engine, making the tires spin, and causing the car to smoke and sway from side to side, would a reasonable officer, who is half in and half out of the vehicle, conclude that the suspect poses a risk of serious harm to the officer or others; (2) whether a police officer attempting to execute a lawful arrest warrant against a suspect in a car who is struggling with the officer and revving his vehicle, making the tires spin and causing it to smoke and sway side to side, “obviously” violates the suspect’s Fourth Amendment rights by deploying deadly force just before the car reverses running over his fellow officer; and (3) whether the mere existence of a municipal policy of allowing traffic stops can constitute the moving force behind a subsequent unlawful use of force sufficient to impose municipal liability for such use of force.

Roper v. Crane
22-1157
Issues: (1) Whether an objective police officer could have believed it reasonable to shoot a person who had warrants for his arrest, had locked the doors and raised the windows of his vehicle, had verbally and physically refused to comply with police commands to turn off and exit his vehicle, while the person was in the driver’s seat of his vehicle revving the vehicle’s engine and spinning the vehicles tires and one officer was partially inside the vehicle close to an open door, when other officers were nearby outside the vehicle; and (2) if so, whether it would have been obvious to every objective police officer that the driver posed no serious threat to life that warranted shooting the driver to stop a threat of harm.

The post North Carolina seeks to enforce undercover workplace-recording ban against PETA appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Under the Uniform Code of Military Justice, military courts-martial retain jurisdiction over retired servicemembers. Courts-martial can punish a broader range of conduct and face fewer constitutional constraints than civilian courts. Therefore, since the time of the Korean War, the Supreme Court has repeatedly limited courts-martial to “the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.” This week, we highlight cert petitions that ask the court to consider, among other things, whether the UCMJ’s extension of court-martial jurisdiction to retired servicemembers violates the Constitution.

The question comes to the Supreme Court in the case of Steven Larrabee, who served in the Marines for 20 years before retiring to the Fleet Marine Corps Reserve in August 2015. Unlike traditional reserve components of the armed forces, the FMCR is a effectively a retirement status for Marines who have previously served on active duty. Its members receive a pension, lack any military authority, and do not face any fitness obligations.

Three months after his retirement, Larrabee recorded himself sexually assaulting a civilian bartender at a bar that he managed in Iwakuni, Japan. He was charged under the UCMJ with sexual assault and indecent recording. After pleading guilty at a court-martial, he was sentenced to 10 months in prison and a dishonorable discharge from the military.

Larrabee first appealed his conviction in the military courts. He argued that when Congress authorized court-martial jurisdiction over military retirees, it exceeded its constitutional authority to “make rules for the government and regulation of the land and naval Forces” under Article I, Section 8 of the Constitution. The U.S. Court of Appeals for the Armed Forces denied his appeal, and in 2019 the Supreme Court declined to review that ruling.

Larrabee then filed a new challenge to his conviction in a civilian court. In addition to his prior argument about congressional overreach, he contended that his conviction was unconstitutional for another reason: Although the Fifth Amendment carves out an exemption from the general grand-jury requirement for “cases arising in the land or naval forces,” that exemption did not apply to his case because he assaulted a civilian on civilian property while not on active duty.

A federal district court in Washington, D.C., agreed that the court-martial of retired servicemembers violates the Constitution, but the U.S. Court of Appeals for the District of Columbia Circuit reversed. Looking to Founding-era British and colonial practices, the D.C. Circuit concluded that the original public meaning of Article I suggests that the Framers intended to grant Congress power over military retirees. And Larrabee’s case, the court of appeals reasoned, arose “in the land or naval forces” under the Fifth Amendment because his status in the FMCR might require him to return to active duty in the event of a future war or national emergency.

In Larrabee v. Del Toro, Larrabee asks the justices to grant review and reverse the D.C. Circuit’s ruling. In opposing Larrabee’s petition for review of his appeal in the military courts, the government urged the justices to wait for other courts of appeals to consider the issue. That concern now counsels in favor of review, Larrabee argues, because the D.C. Circuit and Court of Appeals for the Armed Forces disagree as to why Congress may authorize the court-martial of military retirees. “The range of offenses covered by this sweeping grant of military jurisdiction is stunning,” Larrabee writes. “This Court should resolve the critical constitutional question before millions of persons who have honorably served their country are exposed to the military justice system for offenses committed in civilian life years — if not decades — after retiring from active duty.”

A list of this week’s featured petitions is below:

CareDx, Inc. v. Natera, Inc.
22-1066
Issue: Whether a new and useful method for measuring a natural phenomenon that improves upon prior methods for measuring that very same phenomenon is eligible for patent protection under 35 U.S.C. § 101, which provides that any “new and useful process” or “new and useful improvement thereof” is eligible for patent protection.

Larrabee v. Del Toro
22-1082
Issue: Whether the Constitution permits military retirees to be tried by court-martial for offenses committed after they have left active duty.

Harris v. Texas
22-1114
Issues: (1) Whether the Texas Court of Criminal Appeals contravened the Eighth and 14th Amendments, and this court’s precedents, when it evaluated petitioner’s intellectual-disability claim based on its own standard instead of medically accepted criteria; and (2) whether petitioner received ineffective assistance of counsel in violation of the Sixth Amendment when his counsel abandoned an investigation into his intellectual disability without having any medical professional evaluate the defendant for that condition.

Klamath Irrigation District v. United States Bureau of Reclamation
22-1116
Issue: Whether Federal Rule of Civil Procedure 19 requires dismissal of an action challenging a federal agency’s use of water subject to state-adjudicated water rights if a Native American tribe asserts an interest in the suit and does not consent to joinder.

The post Former Marine challenges power of courts-martial to try military retirees appeared first on SCOTUSblog.

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Four years ago, the Supreme Court ruled in Nieves v. Bartlett that a plaintiff who alleges he was arrested in retaliation for speech protected by the First Amendment must show that police lacked probable cause to arrest him. However, the decision carved out an exception to deal with situations in which police may have probable cause to make an arrest but normally opt not to do so. In his opinion for the majority, Chief Justice John Roberts cited as an example of such an exception a vocal critic of police conduct who is arrested for jaywalking at an intersection where jaywalking is common. The “no probable cause” requirement would not apply, Roberts explained, if the critic could provide “objective evidence” that officers did not arrest similarly situated jaywalkers who kept their mouths shut. This week, we highlight cert petitions that ask the court to consider, among other things, how closely aligned evidence must be to satisfy that exception.

Sylvia Gonzalez rode to victory in her 2019 race for city council in Castle Hill, Texas, on a promise to unseat the allegedly corrupt city manager through a petition. A Castle Hill resident presented that petition, as promised, to Mayor Edward Trevino at Gonzalez’s first council meeting. After the meeting, Gonzalez gathered the papers around her and stored them in a binder. Before Gonzalez left the room, Trevino asked her for the petition – which, to her surprise, she found in her binder.

Trevino initially downplayed Gonzalez’s discovery of the petition in her binder, remarking that she had “probably picked it up by mistake.” But soon after, Trevino instructed the city’s chief of police to investigate Gonzalez. After a two-month investigation, she was arrested for violating a Texas law that prohibits “intentionally destroy[ing], conceal[ing], remov[ing], or otherwise impair[ing] … a government record.” The district attorney quickly dropped the charges, but not before Gonzalez, who at the time was 72, had been processed and spent the day in jail. With her mugshot released to the local media, Gonzalez gave in and ultimately resigned from the city council.

Gonzalez sued Trevino, the police chief, and the special detective appointed to lead the investigation. Pointing to affidavit statements listing her stance against the city manager as the justification for a warrant, she argued that she was arrested in retaliation for conduct protected by her First Amendment rights to freedom of speech and petition.

Gonzalez did not dispute that police had probable cause to arrest her. Rather, she argued that she qualified for the exception outlined in Nieves by presenting data of indictments under the Texas tampering statute over the past decade. Virtually all of those indictments were for forging government IDs or tampering with financial records; none, Gonzalez explained, were “for conduct remotely like hers.”

A federal district court allowed her lawsuit to go forward, but the U.S. Court of Appeals for the 5th Circuit reversed. Roberts wrote in Nieves that, to qualify for the exception, a plaintiff must “present[] objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Gonzalez’s evidence, the 5th Circuit explained, fell short of that standard. The court ruled that she could not sue for retaliatory arrest in the face of probable cause without showing that another person in Texas also misplaced a document at a government meeting yet was not arrested under the tampering statute because she did not outspokenly critize a public official.

In Gonzalez v. Trevino, Gonzalez asks the justices to grant review and reverse the 5th Circuit’s ruling. In dissent from that ruling, Judge Andrew Oldham wrote, “there’s zero difficulty or complexity in figuring out whether it was animus or [Gonzalez’s] purportedly criminal conduct that caused her arrest.” Gonzalez agrees, and argues that this illustrates “[t]he problem with” the majority’s reading of Nieves: “[C]ourts are blinded to other objective evidence of retaliatory intent, even if it helps to isolate the improper motive.”

A list of this week’s featured petitions is below:

Verdun v. City of San Diego, California
22-943
Issue: Whether the City of San Diego’s practice of tire-chalking — where parking officers draw a chalk mark on the tire of every car in a particular location, for purposes of tracking the car’s movement — falls outside the administrative-search exception to the warrant requirement for searches under the Fourth Amendment.

Gonzalez v. Trevino
22-1025
Issues: (1) Whether the probable-cause exception in Nieves v. Barlett can be satisfied by objective evidence other than specific examples of arrests that never happened; and (2) whether the Nieves exception is limited to individual claims against arresting officers for split-second arrests.

Sheetz v. City of El Dorado, California
22-1074
Issue: Whether a building-permit exaction is exempt from the unconstitutional-conditions doctrine as applied in Nollan v. California Coastal Commission and Dolan v. City of Tigard, Oregon simply because it is authorized by legislation.

Truck Insurance Exchange v. Kaiser Gypsum Company, Inc.
22-1079
Issue: Whether an insurer with financial responsibility for a bankruptcy claim is a “party in interest” that may object to a plan of reorganization under Chapter 11 of the Bankruptcy Code.

Chandler v. Foresight Coal Sales, LLC
22-1083
Issues: (1) Whether a state law discriminates against interstate commerce in practical effect when there has been no showing of any burden on interstate commerce beyond a de minimis one; (2) whether a discriminates against interstate commerce when it only offsets a state-imposed disadvantage, does so equally for all states imposing that disadvantage, and does not affect any out-of-state business’ earned or natural advantage; and (3) whether discriminatory purpose matters in determining whether a law violates the dormant commerce clause.

The post Outspoken critic on Texas city council seeks to revive lawsuit over retaliatory arrest appeared first on SCOTUSblog.