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April 20, 2020 Cert Alert

Supreme Court Cases of Interest

Anthony Franze

Criminal Justice extends its deepest gratitude to Carol Garfiel Freeman, the retiring “Cert Alert” columnist, who shared her expert insights with our readers for 15 terms of the US Supreme Court. We are pleased that Anthony Franze, a prominent appellate lawyer and regular commentator on the high court, will take up the mantle of identifying criminal law–related cases of interest at SCOTUS.

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It’s the calm before the storm at One First Street. Since the last “Cert Alert,” the Supreme Court issued no new decisions relating to criminal law, but an onslaught is coming. At the time this column went into production, there were more than a dozen cases pending involving the Second, Fourth, Fifth, Sixth, and Eighth Amendments, as well as important questions on immigration and sentencing.

The Court will decide all of those cases by late June, just in time for the Cert Alert summer edition. But for now, the cases awaiting decision are listed below.

The dearth of new decisions allows for a closer look at what’s new—the recent criminal law–related cert grants.


Jurisdiction—Crimes Committed in Indian Country

In December 2019, the justices granted review in McGirt v. Oklahoma, No. 18-9526. In McGirt, the defendant argues that the State of Oklahoma lacked the power to prosecute him because his crime was committed within the historical boundaries of the Muscogee (Creek) Nation, which he argues qualifies as Indian Country under the Major Crimes Act, meaning that only the federal government has the power to prosecute major crimes committed by or against Indians on a reservation. He asserts that because he qualifies as an “Indian” under the statute, because his crime is a “major” one, and because it occurred in “Indian Country,” the State of Oklahoma exceeded its authority in prosecuting him.

As Dan Epps, a Supreme Court scholar and criminal law professor at Washington University School of Law, noted, “This is a question the Court has been struggling with for some time: it heard oral argument on the same issue in another case that is now captioned Sharp v. Murphy more than a year ago, but wasn’t able to resolve it—perhaps because Justice Gorsuch was recused from the case (because he was involved in the case while on the Tenth Circuit) and the Court was split 4-4 on the issue (though we don’t know for certain). The Court set Murphy for reargument this term, but hasn’t yet scheduled it.” Epps said that granting McGirt suggests the Court may have been looking for another case on which Justice Gorsuch has no conflict, perhaps so he can break a tie. “The case could be quite important; if the Court ends up concluding that the Creek Nation (a large geographic area which includes most of the City of Tulsa) is an ‘Indian Reservation,’ the consequences for criminal prosecutions in Oklahoma could be quite significant,” said Epps.
[Disclosure: Arnold & Porter is counsel for the State of Oklahoma in Sharp and McGirt.]

Military Justice—Statute of Limitations

The Court granted review and consolidated two cases for briefing and argument in United States v. Briggs, No. 19-108, and United States v. Collins, No. 19-184. These cases raise the question of whether charges of rape by military members are subject to a five-year statute of limitations, precluding the possibility of prosecutors bringing charges today for events that allegedly occurred between 1986 and 2006.

Christopher Man, a prominent white-collar criminal defense lawyer at Winston & Strawn in Washington, D.C., said that “Briggs and Collins pose an interesting—albeit narrow—statute of limitations question for rape in the military cases during a discrete time period since the current version of the Uniform Code of Military Justice has no limitation period. While of course important to the victims and alleged perpetrators, the cabined context and date range suggest that the cases will have minimal implications beyond a small set of cases in the military justice system.”

Professor Epps agreed. “Given that background, it seems likely that the Court granted the cases because it was convinced the lower court was wrong—so the defendants shouldn’t feel good about their chances. That said, the defendant in Briggs is represented by University of Texas law professor Steven Vladeck, who has emerged as the leading expert and advocate in Supreme Court cases dealing with the military justice system.”

Immigration—Removal Proceedings

In Pereida v. Barr, No. 19-438, the question presented is “[w]hether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.” Under the INA, a noncitizen may not apply for relief from deportation if the person has been convicted of a disqualifying offense listed in the statute, which includes crimes “involving moral turpitude.” In the opinion below, the Eighth Circuit held that it was inconclusive whether the petitioner’s crime involved moral turpitude but that the burden rests on the party opposing deportation to prove he or she was not convicted for such an offense.

This is more than just a bread-and-butter grant to resolve a circuit conflict. As Man notes: “The ultimate question here is how stringent a burden should be placed on a noncitizen when challenging removal when it is unclear whether they have been convicted of a crime that corresponds to an offense listed in the Immigration and Nationality Act.”

Fourth Amendment—Search and Seizure

In Torres v. Madrid, No. 19-292, the Court granted review to resolve a circuit conflict over what constitutes a “seizure” under the Fourth Amendment. The question presented is whether “an unsuccessful attempt to detain a suspect by use of physical force is a ‘seizure’ within the meaning of the Fourth Amendment . . . or whether physical force must be successful in detaining a suspect to constitute a ‘seizure.’” In Torres, police officers shot the defendant, but she drove away and temporarily evaded capture. Later, she brought an excessive force lawsuit. The lower courts held that because she evaded apprehension, there was no “seizure” and dismissed the suit.

Though this seems to involve a perhaps hyper-technical dispute over the boundaries of the Court’s complex Fourth Amendment doctrine over what constitutes a seizure, Professor Epps said there’s more to it: “What’s really at stake . . . is when people who are subject to police violence will have a chance to seek damages from the officers in court by arguing that the officers acted unreasonably. The court below concluded that if police shoot someone, there is still no Fourth Amendment ‘seizure’ if the person shot isn’t captured by the police afterwards. That reading of the Fourth Amendment risks immunizing a lot of unreasonable uses of force by police from judicial scrutiny, so the case could be quite significant.”

The justices will hear argument in these cases by the end of April and will issue decisions by the end of June.


In addition to the recent cert grants discussed above, the following are the pending criminal law–related cases awaiting decision. They are listed in the order they have been, or will be, argued, with their questions presented.

Sixth Amendment—Unanimous Verdict Requirement

Ramos v. Louisiana, No. 18-5924
Argued: October 7, 2019
Question Presented: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

Eighth/Fourteenth Amendments—Insanity Defense

Kahler v. Kansas, No. 18-6135
Argued: October 7, 2019
Question Presented: Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.
[Disclosure: Arnold & Porter is counsel for amicus in this case supporting neither side.]


Mathena v. Malvo, No. 18-217
Argued: October 16, 2019
Question Presented: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

Immigration Reform Act—Preemption

Kansas v. Garcia, No. 17-834
Argued: October 16, 2019
Questions Presented: (1) Whether the Immigration Reform and Control Act expressly preempts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) if IRCA bars the States from using all such information for any purpose, whether Congress has the constitutional power to so broadly preempt the states from exercising their traditional police powers to prosecute state law crimes.

Fourth Amendment—Vehicle Searches

Kansas v. Glover, No. 18-556
Argued: November 4, 2019
Question Presented: Whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.

Bivens—Right to Assert Damages Claim

Hernandez v. Mesa, No. 17-1678
Argued: November 12, 2019
Questions Presented: (1) Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth Amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics; and (2) if not, whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.

Second Amendment—City Gun Ban

New York State Rifle & Pistol Association Inc. v. City of New York, No. 18-280
Argued: December 2, 2019
Question Presented: Whether New York 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.


Banister v. Davis, No. 18-6943
Argued: December 4, 2019
Questions Presented: (1) Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby; and (2) whether a pro se petitioner must be warned and given an opportunity to withdraw a post-judgment motion which has been recharacterized as a successive habeas petition if that recharacterization will affect his ability to file a timely notice of appeal.

Sentencing—Preservation for Appeal

Holguin-Hernandez v. United States, No. 18-7739
Argued: December 10, 2019
Question Presented: Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

Sentencing—Capital Cases

McKinney v. Arizona, No. 18-1109
Argued: December 11, 2019
Questions Presented: (1) Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted; and (2) whether the correction of error under Eddings v. Oklahoma requires resentencing.

“Bridgegate” Case

Kelly v. United States, No. 18-1059
Argued: January 14, 2020
Question Presented: Whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision.

Armed Career Criminal Act

Shular v. United States, No. 18-6662
Argument: January 21, 2020
Question Presented: Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act.


United States v. Sineneng-Smith, No. 19-67
Argument: February 25, 2020
Question Presented: Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.
[Disclosure: Arnold & Porter is counsel for amicus in this case supporting respondent.]

Look for a recap of decisions in these cases in the summer edition of “Cert Alert.”

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Anthony Franze

Anthony Franze is a lawyer in the Appellate & Supreme Court practice at Arnold & Porter, a regular commentator on the high court and appellate law, and a critically acclaimed novelist.