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April 15, 2019 Cert Alert

Supreme Court Cases of Interest

Carol Garfiel Freeman

Probably the most unusual news from the Supreme Court between October and January was Justice Ginsburg’s absence from two weeks of oral arguments while she recovered from lung cancer surgery. This is the first time the justice has not been on the bench during oral arguments in her 25+ years on the Court. Note, however, that the Court announced that Justice Ginsburg would listen to the arguments and participate in the decisions of those cases. On another front, from October through January, there were no opinions or separate statements by Justice Kavanaugh in any criminal justice cases.

Several separate opinions in cases not granted review, primarily capital cases, warrant mention. In Townes v. Alabama, No. 17-7894 (Oct. 29, 2018), a capital case, Justice Sotomayor wrote on the importance of retaining audio tapes of trials while appellate review is pending, although the procedures in that case did not constitute constitutional error. Cert was denied in Reynolds v. Florida, No. 18-5181 (Nov. 13, 2018), involving capital sentences imposed in Florida based on the advisory jury procedure later held unconstitutional in Hurst v. Florida, 136 S. Ct. 616 (2016). Justices Breyer and Sotomayor each wrote separately on the issues, Justice Breyer repeating his opinion that the Court should consider the constitutionality of the death penalty itself. Justice Thomas also wrote, concurring in the denial of cert and responding to Justice Breyer’s concerns. In another death penalty case, Justice Sotomayor dissented from the denial of a stay and cert for the defendant in Miller v. Parker, No. 18-6906 (Dec. 6, 2018), who had opted for death in the electric chair rather than by Tennessee’s cocktail for lethal injection. She referred to the “madness” stemming from the Court’s decision in Glossip v. Gross, 576 U.S. ___ (2015). Three justices dissented from the denial of cert in Lance v. Sellers, No. 17-1382 (Jan. 7, 2019). Counsel for capital defendant Lance believed his client was innocent and failed to do any investigation in preparation for sentencing. After the death penalty was imposed based on the facts of the murders with no countervailing mitigating evidence, post-conviction counsel developed significant evidence of cognitive impairments. The state trial court granted his habeas petition, but the state appellate court reversed, concluding that no juror would be persuaded to vote for life rather than death despite the new evidence. The federal court of appeals held that this was not unreasonable. Justice Sotomayor, with whom Justices Ginsburg and Kagan concurred, dissented from the denial of cert, concluding that the state appellate court had applied Strickland v. Washington, 466 U.S. 668 (1984), in “an objectively unreasonable manner.”

In a non-capital case, Justice Gorsuch, with whom Justice Sotomayor concurred, dissented from the denial of cert in Stuart v. Alabama, No. 17-1676 (Nov. 19, 2018), which challenged the admission of a blood-alcohol test report without the testimony of the analyst who performed the test. He wrote that the multiple opinions in Williams v. Illinois, 567 U.S. 50 (2012), caused confusion around the country and should be clarified. The decision to deny cert in Hester v. United States, No. 17-9082 (Jan. 7, 2019), generated a dissent from Justice Gorsuch, joined by Justice Sotomayor, and a concurrence from Justice Alito. The question was whether the facts on which a restitution order is based must be found by a jury rather than a judge. Justice Gorsuch’s dissent referred to the increasing role of restitution in the criminal justice system and concluded that the issue warranted review. Justice Alito, agreeing that cert should be denied, questioned the decisions in United States v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000), and wrote that in any event the Sixth Amendment should not be extended from facts on which a sentence of imprisonment is based. Finally, Justice Sotomayor, joined by Justice Ginsburg, dissented from the denials of cert in several cases in which defendants brought collateral attacks on their sentences as career criminals based on convictions of crimes of violence under the so-called residuary clause, which had been held unconstitutionally vague after they had been sentenced. Justice Sotomayor cited her dissent from the denial of cert in Brown v. United States, No. 17-9276 (Oct. 15, 2018), which noted that the issue applied to perhaps 1,000 prisoners and should be decided by the Court. (See 33:4 Crim. Just. at 60 (Winter 2019).)

Further information about these cases and others on the Court’s docket are on the Court’s website,


Note: Questions presented are quoted as drafted by the parties, or, in some instances, by the Court.

Capital Case—Jurisdiction

Carpenter v. Murphy, No. 17-1107. Cert had been granted sub nom. Royal v. Murphy on the question “[w]hether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an ‘Indian reservation’ today under 18 U.S.C. § 1151 (a).” (Cert Alert, 33:3 Crim. Just. at 45 (Fall 2018).) On December 4, 2018, after oral argument on November 27 (Justice Gorsuch being recused), the Court entered an order directing supplemental briefing on the following two questions:

(1) Whether any statute grants the state of Oklahoma jurisdiction over the prosecution of crimes committed by Indians in the area within the 1866 territorial boundaries of the Creek Nation, irrespective of the area’s reservation status. (2) Whether there are circumstances in which land qualifies as an Indian reservation but nonetheless does not meet the definition of Indian country as set forth in 18 U.S.C. § 1151(a).

Crimes and Offenses

Rehaif v. United States, 17-9560, cert. granted, Jan. 11, 2019, decision below at 888 F.3d 1138 (11th Cir. 2018).

Under federal law, persons of various statuses are prohibited from “possess[ing] in or affecting commerce, any firearm or ammunition.” 18 U.S.C.§ 922(g). One such status is being an alien “illegally or unlawfully in the United States.” 18 U.S.C.§ 922(g)(5)(A).

The penalty for violating § 922(g) is found in 18 U.S.C. § 924, which provides “Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined, . . . imprisoned, . . . or both. 18 U.S.C.§ 924(a)(2).

The question presented is:

Whether the “knowingly” provision of § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, as has been urged by then-Judge, now Justice Gorsuch, or whether it applies only to the possession element, as has been held by the courts.

United States v. Davis, No.18-431, cert. granted, Jan. 4, 2019, decision below at 2018 WL 4268432 (5th Cir. 2018).

Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using, or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague.

Fourth Amendment

Mitchell v. Wisconsin, No. 18-6210, cert. granted, Jan. 11, 2019, decision below at 914 N.W.2d (Wis. 2018).

In both Missouri v. McNeely and Birchfield v. North Dakota, this Court referred approvingly to “implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply” with tests for alcohol or drugs when they have been arrested on suspicion of driving while intoxicated. 569 U.S. at 141, 161 (2013); 136 S. Ct. 2160, 2185 (2016). But a majority of states, including Wisconsin, have implied-consent laws that do something else entirely: they authorize blood draws without a warrant, without exigency, and without the assent of the motorist, under a variety of circumstances—most commonly when the motorist is unconscious. State appellate courts have sharply divided on whether such laws comport with the Fourth Amendment.

The question presented is:

Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

Second Amendment

New York State Rifle & Pistol Ass’n v. City of New York, No. 18-280, cert. granted, Jan. 22, 2019, decision below at 883 F.3d 45 (2d Cir. 2018), reh’g denied, Apr. 5, 2018.

New York City prohibits its residents from possessing a handgun without a license, and the only license the City makes available to most residents allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city. The City thus bans its residents from transporting a handgun to any place outside city limits—even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use.

The City asserts that its transport ban promotes public safety by limiting the presence of handguns on city streets. But the City put forth no empirical evidence that transporting an unloaded handgun, locked in a container separate from its ammunition, poses a meaningful risk to public safety. Moreover, even if there were such a risk, the City’s restriction poses greater safety risks by encouraging residents who are leaving town to leave their handguns behind in vacant homes, and it serves only to increase the frequency of handgun transport within city limits by forcing many residents to use an in-city range rather than more convenient ranges elsewhere.

The question presented is:

Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.


Quarles v. United States, No. 17-778, cert. granted, Jan. 11, 2019, decision below at 850 F.3d 836 (6th Cir. 2017), reh’g denied, June 28, 2017.

The Armed Career Criminal Act, 18 U.S.C. § 924(e), imposes a mandatory 15-year prison term upon any convicted felon who unlawfully possesses a firearm and who has three or more prior convictions for any “violent felony or * * * serious drug offense.” The definition of a “violent felony” includes a burglary conviction that is punishable by imprisonment for a term exceeding one year. See § 924(e)(2)(B)(ii). In Taylor v. United States, 495 U.S. 575 (1990), this Court held that § 924(e) uses the term “burglary” in its generic sense, to cover any crime “having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 598–599.

The question presented is:

Whether (as two circuits hold) Taylor’s definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, or whether (as the court below and three other circuits hold) it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure.

Related Civil Case

McDonough v. Smith, No. 18-485, cert. granted, Jan. 11, 2019, decision below at 898 F.3d 259 (2d Cir. 2018), reh’g denied, Sept. 12, 2018.

Whether the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant’s favor (as the majority of circuits has held) or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use (as the Second Circuit held below).


Capital Cases—Habeas

Shoop v. Hill, No. 18-56 (Jan. 7, 2019). Hill, who had been sentenced to death, filed a state habeas petition contending that his death sentence was illegal under Atkins v. Virginia, 536 U.S. 394 (2002), which prohibits the execution of a person who is mentally retarded. That claim was denied. Later Hill filed a federal habeas petition challenging the denial of the state habeas. The district court denied the petition, but the court of appeals reversed, granting relief under 28 U.S.C. § 2254(d)(1) on the ground that the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” Reviewing the court of appeals decision, the Court, per curiam, concluded that it was based essentially on Moore v. Texas, 581 U.S. ___ (2017), which had been decided long after the state court decision and thus was not “clearly established Federal law” at the time of the state court decision. Hill’s petition in fact had been focused on an argument that the state court decision was an “unreasonable determination of the facts” (28 U.S.C. § 2254(d)(2)), the district court had addressed only that issue, and it was this argument that Hill pressed on the appeal. Only after the court of appeals requested briefing on Moore did Hill address that issue. Because Moore had not been decided when the state court ruled, the decision below was vacated and remanded for the court of appeals “to determine whether its conclusions can be sustained based strictly on legal rules that were clearly established” by Supreme Court decisions at the relevant time.

White v. Kentucky, No. 17-9467 (Jan. 14, 2019). The Court, per curiam, granted cert, vacated the judgment below, and remanded for further consideration in light of Moore v. Texas, 581 U.S. ___ (2017). Justice Alito, joined by Justices Thomas and Gorsuch, dissented on the ground that Moore had been decided several months before the decision of the state appellate court (and therefore presumably the state court already had considered Moore in reaching its opinion).


Stokeling v. United States, No. 17-5554 (Jan. 15, 2019). Stokeling was convicted of a federal firearm violation (18 U.S.C. § 922(g)(1)). The question presented was whether his Florida conviction of robbery qualified as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(ACCA), that (with other prior convictions) would subject him to a mandatory minimum sentence. This required analyzing the Florida statute to determine whether it requires the use of “force” that would qualify it as a violent felony under section 924(e)(2)(B)(i), which is defined as a crime punishable by imprisonment for more than a year that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Justice Thomas, for the majority, discussed the history of the ACCA and the history of the crime of “robbery” as including an element of force sufficient to overcome resistance. The decision in Johnson v. United States, 559 U.S. 133 (2010), is not to the contrary because that case only held that the amount of force needed to commit battery (intentional unwanted touching) was not sufficient to constitute a “violent felony” under the ACCA. Rather, the force required under the ACCA is force that has the potential to cause physical pain or injury. The Florida court has stated that the force required under its robbery statute is force sufficient to overcome resistance; merely touching the victim to snatch the loot does not constitute robbery. Opinion by Justice Thomas, in which Justices Breyer, Alito, Gorsuch, and Kavanaugh joined. Justice Sotomayor filed a dissenting opinion in which Chief Justice Roberts and Justices Ginsburg and Kagan joined. In Johnson, the Court used the term “capable of causing physical pain or injury,” which the majority here interprets as having the potential to cause pain or injury. Contrary to the majority opinion, common law robbery did include minimal force, such as the force needed to pull a pin out of a woman’s hair. Johnson rejected the common law definition of “force” for the ACCA, noting rather that, in the context of a “violent felony,” more than minimal force would be required. The dissent concludes that force that is “capable of causing” pain or injury is stronger than force that simply has the potential to cause pain or injury. The dissent also cites the legislative history of the ACCA to support its interpretation of the statute. The force needed to overcome resistance, as required by the Florida statute, does not necessarily mean serious force. Thus, for example, a victim who holds onto the shoulder strap when the robber grabs her bag commits robbery under Florida law. Robbery under Florida law, therefore, is too broad to constitute a violent felony under the ACCA.

United States v. Stitt, No. 17-765 (Dec. 10, 2018). Defendants Stitt and Sims were convicted of unlawfully possessing firearms in violation of 18 U.S.C. § 922(g)(1). Each had state burglary convictions that might require a mandatory 15-year minimum prison term under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (ACCA). The question presented was whether “burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation” constitutes “generic burglary” as required for the enhanced sentence by the line of cases beginning with Taylor v. United States, 495 U.S. 575 (1990), and including Mathis v. United States, 579 U.S. ___ (2016). In an opinion for a unanimous Court, Justice Breyer discussed the particular state statutes involved and concluded that burglary within the ACCA includes vehicles customarily adapted or used for lodging, as a majority of state statutes had provided when the ACCA was passed in 1986. Sims’ case was remanded so that the court of appeals could consider his argument that the Arkansas state statute also covers burglary of a car in which a homeless person occasionally sleeps, and thus might not constitute burglary under the ACCA.

Related Civil Case

City of Escondido v. Emmons, No. 17-1660 (Jan. 7, 2019). In a per curiam opinion, the Court reversed a court of appeals decision that two police officers were not entitled to qualified immunity. Officers Craig and Toth responded to a 911 call for a domestic violence situation. There had been a similar call to the residence earlier. The police body-camera video is in the record. When the officers arrived, no one answered a knock at the door, but they spoke through an open window with Mrs. Emmons. A man told the officers to back away from the window. A few minutes later, a man came out, closed the door despite Officer Craig telling him not to, and tried to brush past Officer Craig. Officer Craig stopped him, took him to the ground, and cuffed him. The man was not in visible or audible pain and was very shortly helped up and arrested for the misdemeanor offense of resisting and delaying a police officer. He sued under the Civil Rights Act, 42 U.S.C. § 1983, including a claim based on excessive force in violation of the Fourth Amendment. The district court found probable cause for the arrest; dismissed the case as to Officer Toth, who had not been involved in the takedown; and held that the law did not “clearly establish” that Officer Craig could not take down a person in these circumstances. The court of appeals inexplicably reversed as to Officer Toth (the Supreme Court reversed this decision) and as to Officer Craig wrote only that the right to be free of excessive force was clearly established at the time. As to Officer Craig, the Supreme Court emphasized that an officer is entitled to qualified immunity unless his conduct violated a “clearly established right [which] must be defined with specificity.” Excessive force cases in particular depend on the facts of the situation, and the officer is entitled to qualified immunity “‘unless existing precedent squarely governs the specific facts at issue’” (quoting Kisela v Hughes, 584 U.S. ___ (slip op. at 4) (2018)). The court of appeals erred in failing to examine the facts of the case in relation to the Court’s precedents. The judgment as to Craig was vacated and remanded for further proceedings.


Tuesday, January 8, 2019:

Herrera v. Wyoming, No.17-532, Cert Alert, 33:3 Crim. Just. at 45 (Fall 2018) (Whether member of Crow tribe can be prosecuted for hunting on “unoccupied lands of the United States” for hunting in Bighorn National Forest).

Tuesday, February 26, 2019:

United States v. Haymond, No.17-1672, Cert Alert, 33:4 Crim. Just. at 61 (Winter 2019) (Constitutionality of 18 U.S.C. § 3583(k) requiring revocation of supervised release).

Mont v. United States, No. 17-8995, Cert Alert, 33:4 Crim. Just. at 61 (Winter 2019) (Relation of pretrial detention to running of sentence of supervised release).

Wednesday, March 20, 2019:

Flowers v. Mississippi, No. 17-9572, Cert Alert, 33:4 Crim. Just. at 60 (Winter 2019) (Application of Batson v. Kentucky, 476 U.S. 79 (1986).

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Carol Garfiel Freeman

Carol Garfiel Freeman has been a staff lawyer with the US District Court for the District of Columbia, a deputy district public defender in Maryland, and an assistant US Attorney for the District of Columbia.