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.
Since our last post, the Supreme Court has been rather restrained at working through relists. This week, the justices acted on only one relisted petition, Walters v. Coleman, in which the Commonwealth of Virginia seeks reversal of a decision by the U.S. Court of Appeals for the 4th Circuit granting habeas relief to a prisoner. The court made short work of the petition: the justices granted, vacated, and remanded for further consideration in light of Clark v. Sweeney, where the court recently reversed the 4th Circuit for the same basic mistake – giving habeas relief based on a theory the prisoner had not actually presented. In Walters, that meant no extended engagement with the grisly facts of that case or the 4th Circuit’s 124-page effort to order resentencing, just a brisk reminder that federal courts are supposed to decide the issues the parties themselves present.
Now on to new business. There are 108 petitions and applications on the docket for this week’s conference. Two are being considered for a second time. Both involve the same lawyers: Skadden and the Office of the Solicitor General.
Is a person’s race relevant to whether they have been “seized” by police?
United States v. Carter asks whether race can be a relevant factor in the Fourth Amendment’s “free to leave” test for determining whether a police encounter constitutes a seizure – and whether the answer can turn on judicially attributed assumptions about how members of a particular racial group perceive law enforcement. Officers from the District of Columbia Metropolitan Police Department’s Gun Recovery Unit in plain clothes and tactical vests and carrying visible firearms approached respondent Donte Carter on a sidewalk in Washington, D.C. One officer asked Carter whether he had a gun; Carter twice lifted his shirt to show he didn’t. The officer then asked Carter to “hike his pants,” which Carter did – at which point another officer noticed a gun-shaped object in Carter’s groin area, leading to a frisk and the discovery of a .40-caliber pistol that had been stolen from an FBI agent’s car. Carter was convicted on eight firearms and theft counts.
The District of Columbia Court of Appeals (the high court of D.C., not the federal appellate court it is often confused with) vacated those convictions, holding that the “hike your pants” request had amounted to a Fourth Amendment seizure occurring before the officers had developed reasonable suspicion. The DCCA held that its precedent required it to assess the encounter through the eyes of a reasonable person sharing respondent’s “racial status,” concluding that “black Americans like [Carter] are ‘especially distrustful of law enforcement’” and thus “‘less likely’ than other people ‘to terminate a police encounter’ due to skepticism that any attempt to exercise their constitutional rights will be respected,” such that a Black man in Carter’s position would have felt compelled to comply where others would not. Judge Roy McLeese concurred in the judgment to note that he had previously “expressed uncertainty” as to whether race could permissibly be considered this way, but that court’s established precedent now required him to.
The United States petitions for certiorari, framing the DCCA’s rule as making the same police conduct a Fourth Amendment seizure for one racial group but not another – a result it argues conflicts with the Fourth Amendment’s objective “reasonable person” standard, which “does not vary with the state of mind of the particular individual being approached” according to 1988’s Michigan v. Chesternut, and which the government argues also conflicts with the equal protection guarantee’s rejection of judicial presumptions about how all members of a racial group think. Additionally, the government points to decisions of the U.S. Courts of Appeals for the 4th, 10th, and 11th Circuits and the Iowa Supreme Court rejecting race as a factor in the seizure analysis.
Carter counters that the government’s framing misreads the DCCA’s decision, which it says rested on a finding that any reasonable person – not just a reasonable Black person – would have felt unable to terminate the encounter; that the controlling precedent is 1980’s United States v. Mendenhall, which Carter argues already holds race is “not irrelevant” in a seizure analysis (there concerning whether a Black woman would have “felt unusually threatened” by “white male” DEA officers who stopped her) and which the government notably does not ask the court to overrule; that the circuit split is overstated; and that the case is a poor vehicle because the DCCA’s race analysis was not necessarily outcome-determinative. The government replies that Mendenhall discussed race in connection with consent to a police request, not whether a seizure occurred, and that the D.C. court “factor[ed] in” Carter’s status as a Black man in its holding.
A government petition with a credible split and a question about the role of race policing is a combination that is practically guaranteed to attract the justices’ attention.
Wiretapping and the clean hands problem
The facts of Grayson v. United States read like a movie script that was sent back for a rewrite on grounds of implausibility. Petitioner Ashley Grayson, a Dallas social-media influencer who offered credit-repair services, became embroiled in a dispute with Olivia Johnson, a Memphis influencer and hairstylist, after Grayson bought a house for Johnson’s mother but kept the deed in her own name. According to trial evidence, Grayson later asked Johnson to kill three people who had criticized her online, offering $80,000 and later paying $10,000 after Johnson falsely claimed that one target’s house had been shot up. Johnson, who said she never intended to commit the murders, secretly recorded a FaceTime call with Grayson, allegedly both to gather evidence and to gain leverage in the housing dispute.
After the FBI brought charges, Grayson moved to suppress the recording under 18 U.S.C. § 2515, Title III of the Omnibus Crime Control and Safe Street Act of 1968’s broad exclusionary rule, which provides that “no part of the contents” of an unlawfully intercepted wire or oral communication “may be received in evidence in any trial, hearing, or other proceeding” before any court “if the disclosure of that information” would violate Title III. The district court denied suppression under the U.S. Court of Appeals for the 6th Circuit’s 1995 decision in United States v. Murdock, which recognizes a “clean hands” exception that permits admission of illegally intercepted evidence when the government “played no part in the unlawful interception.” The 6th Circuit affirmed, saying Grayson “may be correct” that the recording was unlawful, but that “the legality of the recording has no bearing on its admissibility” under Murdock. At the same time, the court suggested it had its doubts about Murdock’s correctness, noting that the decision relied on (now disfavored) legislative history and Grayson had the better of the textual argument. But hey, it was bound by circuit precedent.
Grayson’s petition says the 6th Circuit stands alone against the U.S. Courts of Appeals for the 1st, 3rd, 4th, 8th, and 9th Circuits, plus the Massachusetts Supreme Judicial Court, all of which reject any clean-hands exception to Title III’s suppression rule. As though an influencer-versus-influencer murder-for-hire case wasn’t weird enough, here’s another twist: the government agrees the 6th Circuit was wrong and agrees there’s a circuit split, but still asks the court to deny review – or, at most, grant, vacate, and remand in light of its position – because the issue arises rarely, the government says it will not rely on Murdock going forward, and any error was harmless given Johnson’s testimony, text messages, surveillance footage, Grayson’s own call to the FBI, and other evidence. Grayson replies that those are arguments for remand, not arguments that support denying cert. The 6th Circuit panel was bound by Murdock, the full court declined to rehear the case as a full panel, and a GVR would merely send the case back to a court whose binding precedent remains wrong.
Grayson may yet pull out a grant. But I’ve been in precisely this position before (involving the 6th Circuit no less) in a Speedy Trial Act case and the court GVR’d in light of the government’s confession of error, notwithstanding my rage-filled reply brief that argued (persuasively, if you ask me) that a grant was still warranted. The temptation to just GVR may be irresistible where, as here, the 6th Circuit is the lone outlier.
That’s all for this week. Check back Monday to see whether the court serves up some grants or just another round of relist purgatory.
New Relists
Grayson v. United States, 25-851
Issue: Whether 18 U.S.C. § 2515’s exclusionary rule, which provides that “no part of the contents” of an intercepted communication “and no evidence derived therefrom may be received in evidence in any trial, hearing, or proceeding” before any state or federal court or governmental body “if the disclosure of that information” would violate Title III of the Omnibus Crime Control and Safe Streets Act of 1968, contains an unwritten clean-hands exception.
(Relisted after the June 4 conference.)
United States v. Carter, 25-885
Issue: Whether perceptions of law enforcement that a court attributes to a particular racial group are a relevant factor in the Fourth Amendment analysis of whether a member of that group has been seized.
(Relisted after the June 4 conference.)
Returning Relists
Gator’s Custom Guns, Inc. v. Washington, 25-153
Issue: Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)
Issue: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices violates the Second Amendment; and (2) whether a law dispossessing citizens, without compensation, of property that they lawfully acquired and long possessed without incident violates the takings clause.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)
Viramontes v. Cook County, 25-238
Issue: Whether the Second and 14th Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)
National Association for Gun Rights v. Lamont, 25-421
Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.
(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)
Issue: Whether the Second and 14th Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.
(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)
City of Los Angeles v. Estate of Hernandez, 25-53
Issue: (1) Whether the U.S. Court of Appeals for the 9th Circuit disregarded this court’s precedents, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme “moment-of-threat” rule that this court unanimously rejected in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to this court’s repeated warnings in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.
(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)
Issue: (1) Whether the Texas Court of Criminal Appeals' creation of a novel and unforeseeable procedural bar in its interpretation of Texas Criminal Code Article 11.071, Section 5, precludes review of petitioner's Atkins claim under federal law; and (2) whether a state-created procedural rule may bar review of an Atkins claim consistent with due process where the state has conceded, as here, that the individual meets the criteria for intellectually disability and the procedural gateway necessary to allow for a merits review.
(Relisted after the Mar. 20, Mar. 27, May 28, and June 4 conferences.)
Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.
(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)
Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.
(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)
E.D. ex rel. Duell v. Noblesville School District, 25-906
Issue: Whether Hazelwood School District v. Kuhlmeier applies (1) whenever student speech might be erroneously attributed to the school; (2) when student speech occurs in the context of an “organized and structured educational activity”; or (3) only when student speech is part of the “curriculum.”
(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)
Issue: Whether, when a government official acts in an obviously unconstitutional manner, that is sufficient for the violation to be clearly established, or it is a violation clearly established only if there is binding precedent in a factually indistinguishable case.
(Relisted after the Apr. 17, April 24, May 1, May 14, May 21, May 28, and June 4 conferences.)
Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit violated the Antiterrorism and Effective Death Penalty Act by finding a state jury instruction invalid under Missouri v. Seibert; and (2) whether the 2nd Circuit violated AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant’s guilt that was unaffected by the response.
(Relisted after the Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)
Dershowitz v. Cable News Network, Inc., 25-770
Issues: (1) Whether a defendant’s systematic omission of qualifying and limiting language from a plaintiff’s recorded statement constitutes proof of actual malice under New York Times Co. v. Sullivan, sufficient to survive summary judgment; (2) whether the actual malice standard established in Sullivan, or as extended by its progeny, should be discarded altogether or at least as to private citizens who are public figures; and (3) whether this court should modify Sullivan’s clear-and-convincing and burden-of-proof evidentiary standards.
(Relisted after the May 21, May 28, and June 4 conferences.)
Issues: (1) Whether, where the petitioner, the state, and the habeas court all agree that a conviction is unconstitutional and must be reversed, it violates due process for a state superior court to summarily deny relief without explanation; and (2) whether the prosecution violated Brady v. Maryland by suppressing evidence contradicting its proof of the aggravating element distinguishing capital murder from non-capital homicide.
(Relisted after the May 28 and June 4 conferences.)
Issues: (1) Whether there is a point at which an alien’s detention under Section 1226(c), pending a decision on whether he is to be removed, becomes “unreasonably prolonged,” such that due process requires a bond hearing; and (2) whether, if so, due process in such a bond hearing requires placing the burden on the government to justify the alien’s continued detention by clear and convincing evidence.
(Relisted after the May 28 and June 4 conferences.)
Issue: Whether a claim relies on a “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” when the habeas petitioner could have asserted a claim based on the rule in a prior federal habeas petition.
(Relisted after the May 28 and June 4 conferences.)
Issues: Whether the petitioner was deprived of his right, under the Sixth and 14th Amendments, to a trial by a 12-person jury when the defendant is charged with a serious felony.
(Relisted after the May 28 and June 4 conferences.)
