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January 30, 2016

Supreme Court Watch: A Happy New Year

As 2015 winds down, Supreme Court watchers enjoy a respite from the anxiety and excitement that came with following the previous Term’s several monumental cases to a conclusion. Although this Term may be a bit lighter on the tension and glamour, make no mistake—there’s plenty here to satisfy a discriminating legal palate and to get us in the mood for the 2016 elections, including a pending voting equality case with far-reaching implications.

“I Fought the Law . . . ”

One of the Court’s early rulings is Mullenix v. Luna, 577 U.S. ____ (2015), a per curium decision issued on November 9, 2015. This revolved around an alleged excessive use of force by police, a particularly charged issue in these times. An arrest warrant had been issued for Israel Leija, Jr., and he had been apprehended at a drive-thru restaurant. Leija asked if he could take his car home first, but when permission was refused, he responded by speeding off in his car, initiating a nighttime chase at speeds between 85 and 110 miles per hour. Leija, possibly intoxicated, called 911 twice, stating he would kill officers if they did not abandon the pursuit, information that was relayed to the responding officers. Although “spike-strips” (long strips of hollow needles that are activated by an officer to puncture and gradually deflate a car’s tires) had been laid out to intercept Leija, one trooper, Mullenix, decided to try shooting at Leija’s car to disable it. A pursuing officer agreed, although permission from Mullenix’s supervisor was still forthcoming. Mullenix was aware that another officer was stationed under the overpass where he waited. When the Leija vehicle approached, Mullenix fired six shots. None disabled the vehicle, but four bullets hit Leija, who crashed and died. The entire episode, from Mullenix’s arrival on the overpass to firing his weapon, lasted less than three minutes.

Leija’s estate and family brought a 42 U.S.C. § 1983 claim, alleging that Mullenix had violated the Fourth Amendment by using excessive force, pointing to the available spike strips and the lack of any actual firearm in Meija’s car. Mullenix argued that spike strips are often ineffective (suspects maneuver around them or drive on nonetheless), and officers operating the strips are still vulnerable to gunfire from oncoming vehicles, especially relevant given Leija’s threats. The district court denied summary judgment in favor of Mullenix on the basis that there were genuine issues of fact as to whether he acted recklessly, or responded in the way a reasonable, trained police officer would. On appeal, both a panel and the en banc Fifth Circuit denied qualified immunity, concluding that Mullenix’s actions were objectively unreasonable because a police officer may not use deadly force against a fleeing suspect who posed an insufficient threat of harm to the officer or others.

The U.S. Supreme Court dealt only with the qualified immunity question, and not whether there was a Fourth Amendment violation, and reversed. The standard for qualified immunity required that the conduct in question not violate clearly established statutory or constitutional rights of which a reasonable person would have known, assessed in light of the specific context of the case. The Court explained that the correct qualified immunity inquiry here was not the “general” test for excessive force in Tennessee v. Garner, 471 U.S. 1 (1985), as applied by the Fifth Circuit, but whether it was clearly established that the Fourth Amendment prohibited the officer’s conduct in the situation he confronted: a reportedly intoxicated fugitive in a high-speed car chase, who threatened to shoot officers and who was speeding towards an officer directly in his path.1 Slip op. at 6. There was an actual and immediate threat, because by the time Mullenix fired, the chase had covered 25 miles at extremely high speeds, without stopping, and (quite apart from Leija’s express threats) posed a deadly hazard for others on the road.2 Slip op. at 7. The availability of spike strips was immaterial: these simply provided a “dangerous alternative” (one that was potentially ineffective) for stopping the chase, but did not detract from the question of justification. The law, in such circumstances, did not require the police to exhaust all other measures and hope for the best. Specifically, the Court had “never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity.” Slip op. at 8. Mullenix’s assessment of the threat Leija posed was reasonable, and accordingly, he was entitled to immunity.

Coming Attractions

While this Term, so far, features somewhat less high-profile cases than those decided last Term, there are still several of consequence worth following for state and local government lawyers. The affirmative action case on race-conscious college admission policies from 2013, Fisher v. University of Texas at Austin, No. 14-981, returns for an encore appearance, and it will be interesting to see how the case plays out in light of the earlier ruling. Here’s a brief preview of just a few of the other cases.

Employment. Heffernan v. City of Paterson, No. 14-1280, looks at whether the First Amendment prohibits a local government from demoting a public employee, based on a supervisor’s perception that the employee supports a certain political candidate. Heffernan had been a police officer with the City of Paterson, New Jersey, for over 20 years, and had been promoted to work with the chief of police. Heffernan’s close friend Spagnola, a former police chief, was seeking to unseat the then-incumbent mayor, Torres. Heffernan did not work on Spagnola’s campaign but agreed to pick up a yard sign on behalf of his bedridden mother. He was seen picking up the sign by another police officer, who reported it to the mayor. Heffernan was immediately demoted despite explaining that it was his mother who had asked for the sign. In the ensuing lawsuit, in which Heffernan claimed redress for free association-free speech retaliation, the district court eventually decided that Heffernan failed to produce evidence that he had actually exercised his First Amendment rights and that he was foreclosed from seeking compensation under § 1983 for retaliation based only on the perceived exercise of those rights.

On appeal, the Third Circuit affirmed the “no exercise, no deprivation” approach, concluding, in essence, that the government employer did not violate the Constitution by disciplining an employee based on substantively incorrect information. Heffernan had confirmed that, regardless of what others may have concluded, he did not have any affiliation with a political campaign or any political involvement. He could not be retaliated against for the exercise of his rights if he in fact did not exercise them, and the court declined to extend retaliation protection based on perceived political affiliation. (The First, Sixth, and Tenth Circuits, though, have rejected the theory that a government employee may be demoted or punished because of a perceived political association.) Given the presidential and congressional elections next year, this case raises some timely questions about the First Amendment rights of government workers.

Another First Amendment-government employment case with implications for the 2016 election campaigns is Friedrichs v. California Teachers Association, No. 14-915, on public sector collective bargaining and specifically, non-union members’ rights. Under California law, once a union becomes the exclusive bargaining representative within a district, it may establish an “agency-shop” arrangement in which all employees must, as a condition of employment, be required to join the union or pay a “fair share service fee” (“agency fee”) equal to the union dues. The fee may be used only for activities “germane” to collective bargaining. If nonmembers don’t want to pay portions of the fee used for other activities (not “germane” to collective bargaining), they have to affirmatively opt-out annually to get the amount back as a rebate or credit. The plaintiffs, non-union public school teachers, objected to this scheme and claim that requiring them to make any financial contributions in support of any union, and the default opting-out, violate their rights to free speech and association. Existing decisions, notably Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), and Mitchell v. Los Angeles Unified School District, 963 F.2d 258 (9th Cir.1992), have upheld the constitutional validity of compelling nonmember employees to support a collective bargaining representative and the “opt-out” procedure, so both the district court and the Ninth Circuit decisions in favor of the union are quite brief.

In Abood, a similar “agency fee” case, the Supreme Court found the requirement that nonmembers pay the representative union a service charge equal to union dues to be constitutional. In the last three years, however, the Court has decided two cases recognizing that these compelled payment requirements burden First Amendment rights: Knox v. Serv. Emps. Int’l Union, 132 S. Ct. 2277 (2012) (a special assessment or dues increase cannot be imposed on nonmembers without their affirmative consent), and Harris v. Quinn, 134 S. Ct. 2618 (2014) (refusing to extend Abood to certain deemed public employees, noting that the “Abood Court’s analysis is questionable on several grounds”). Accordingly, the petition for certiorari in Friedrichs asks that Abood be overruled and public-sector “agency shop” arrangements be invalidated under the First Amendment as compelled subsidization of political speech.

Vote Equality. Several voting rights cases are on the docket. The most important is arguably Evenwel v. Abbott, No. 14-940, which examines a key equality issue—whether, in apportioning legislative districts, the “one-person, one-vote” principle under Reynolds v. Sims, 377 U.S. 533, 579 (1964), permits states to use total population as opposed to voter population in meeting the requirement of a “substantial equality” of population among districts. As required by state law, Texas had reapportioned its senate districts after the 2010 census, with a deviation from the “ideal” between districts that topped out at 8.04 percent, within the 10 percent maximum that is generally permissible under Reynolds v. Sims. The plaintiffs, two voters in different districts, sued, claiming that the reapportionment was invalid for being based on total or raw population data, because technology made it possible to create districts of roughly the same voter and total population numbers. Some localities in Texas have large numbers of noncitizen residents who are legally not entitled to vote. The plaintiffs allege that this and other disparities “dilute” votes, so that eligible voters from certain senate districts have votes “weighing” approximately one-and-a-half times the plaintiffs’ votes.

The Texas district court held that, while the Supreme Court had never mandated “total population” as the underlying metric by which substantial population equivalency is evaluated, the legislature’s choice would stand, provided it was not itself “the result of a discriminatory choice” or otherwise constitutionally prohibited. The plaintiffs failed to allege facts for a prima facie case against Texas under Reynolds v. Sims, and because the deviation complied with the 10 percent ceiling, the apportionment plan withstood challenge. A sizeable number of amicus briefs have been filed in this case, with arguments scheduled for December 8, 2015.

Another voting equality case argued on the same day is Harris v. Arizona Independent Redistricting Commission, No. 14-232. In Arizona, a commission had been delegated the authority to reapportion legislative districts. The plaintiffs claim that the commission “malapportioned” the districts (using total population, incidentally) based on a desire to give the Democratic party a political advantage, and because the commission’s lawyer and consultant said the federal Justice Department would not preclear a reapportionment scheme under section 5 of the Voting Rights Act unless the commission underpopulated 11 districts to create minority “ability-to-elect” districts. The result, according to the plaintiffs, is that the commission diluted or enhanced the electoral weight of 3,907,652 Arizona voters in violation of the “one person, one vote” principle. The commission denied that it was driven by partisanship, explaining that the population deviations were driven by its efforts to comply with section 5 of the Voting Rights Act. Even if the Voting Rights Act could have authorized the deviations at issue, the plaintiffs point out that this justification has since been eliminated by the Supreme Court’s decision in Shelby County v. Holder, 133 S. Ct. 2612 (2013).3

Criminal Law. Utah v. Strieff, No. 14-1373, is an interesting look at the “attenuation doctrine,” and whether an initial, unlawful detention “taints” a subsequent search and resulting evidence, or whether the presence of an outstanding arrest warrant, discovered following the detention, dissipates or purges the taint as a sufficient intervening circumstance. This case involves a long-standing conflict in the lower courts over whether, or how, the attenuation doctrine applies in the warrant context.

Police, acting on an anonymous tip, were monitoring the comings and goings at a residence suspected of being a drug house. Strieff was detained after he left the property, as part of that surveillance. He was told to provide an ID, which revealed he had an outstanding warrant for a traffic offense. He was arrested and searched incident to arrest, and drugs were found. Strieff moved to suppress the evidence, arguing that it was fruit of an unlawful investigatory stop. The state conceded there was no reasonable articulable suspicion prompting the stop, but the exclusionary rule did not bar the evidence because the attenuation exception to the exclusionary rule applied. The courts below held that the discovery of an outstanding arrest warrant was an “intervening circumstance” that dissipated the taint of the unlawful detention, but the Utah Supreme Court disagreed.

The attenuation doctrine was inapplicable and the evidence was suppressed. The threshold inquiry in attenuation analysis was whether the “intervening circumstances” were sufficiently independent to show a break in the legal chain of events flowing from the primary violation. Prior attenuation cases rested on a subsequent, independent act of a defendant’s free will (a confession). But the discovery of an outstanding warrant was less “independent” and more simply consistent with the usual course of events arising out of an arrest or detention and was unconnected with a criminal defendant’s voluntary act. Whether the Supreme Court agrees remains to be seen.

Another case, Nichols v. United States, No. 15-5238, concerns the reach of the Sex Offender Registration and Notification Act (SORNA) and whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided. SORNA defines “jurisdiction” as including U.S. states, territories, and Indian reservations, but not foreign nations, but speaks of “residence” as the place where the individual habitually lives. Nichols, a convicted sex offender, left the United States without updating his status on the federal sex offender registry. He was brought back from the Philippines to the United States and charged with failing to register under SORNA. He argues, among other things, that the updating requirement did not apply in situations where the sex offender moves from a SORNA jurisdiction to a non-SORNA jurisdiction. The Tenth Circuit dismissed his claims, but this set up a circuit split that the Court will have to resolve.

Abortion Rights. The Court generated a whole lot of buzz when it agreed to hear the appeal in Whole Woman’s Health v. Cole, No. 15-274, a case on the validity of a Texas abortion clinic restrictions law. Among other things, H.B. 2 (2013) requires physicians who perform abortions to have admitting privileges at a hospital within 30 miles of the clinic, and that abortion clinics have facilities equal to an ambulatory (outpatient) surgical center. The stated basis for the law is to protect the health and welfare of women seeking abortions. The Texas clinics that sued to enjoin enforcement claim, however, that three-quarters of the state’s clinics would be required to close under this law; those still in operation would be located only in major urban centers, not easily accessible for rural women.

In a 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the Court held that an abortion law was impermissible if it amounted to an undue burden on a woman’s right to choose, so states were prohibited from enacting unnecessary health regulations that had the “purpose or effect of presenting a substantial obstacle” to women seeking abortions. The issues in this case include how, in applying Casey’s “undue burden” standard, a court must address whether laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health, and whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the state’s interest in promoting health, or any other valid interest.

Pending Petitions

As of the time of writing, the big question is when (and perhaps whether) the Court will hear an appeal arising from President Obama’s executive actions on immigration, expanding the so-called proposed expansion of the Deferred Action for Childhood Arrivals (DACA) and proposing a Deferred Action for Parents of Americans (DAPA) program. A year ago, the Secretary of the Department of Homeland Security (DHS) issued directives that would grant work authorization and other benefits to millions of illegal aliens. These were promptly challenged by Texas and more than half the states. Judge Andrew Hanen ruled in February 2015 that among other things, the directives failed to comply with the notice-and-comment rulemaking requirements in the federal Administrative Procedures Act (APA) and issued a temporary injunction. The Fifth Circuit denied the government’s motion for a stay pending appeal in May, and in November, that court affirmed the district court’s grant of a preliminary injunction.4 Shortly thereafter, the Department of Justice announced it would seek review from the Supreme Court. The issues include whether the executive action is invalid or unconstitutional, whether the procedural notice-and-comment requirements for rulemaking under the APA apply, and whether a state has Article III standing and a justiciable cause of action to challenge the executive’s policy choices.

Texas Solicitor General Scott Keller had asked for a 30-day extension for filing his opposition to the petition for certiorari. This was reportedly not granted, although the states were given an extra eight days, until December 29. There is as yet no decision to hear the case, although this makes it more likely the Court will consider the petition at its private Conference on January 15, 2016, and hear any appeal in its current term. The goal is apparently to have this appeal heard during the last full Supreme Court term of Obama’s presidency.

Updates on all of these cases, along with new developments, will be reviewed in upcoming columns.


1. Justice Scalia’s concurring judgment frames the issue as whether it was reasonable to shoot at the car engine in light of the risk to Leija, as opposed to whether it was reasonable to kill Leija, because Mullenix did not shoot intending to wound or kill the fleeing Leija. “It distorts [the] inquiry . . . to make the question whether it was reasonable for Mullenix to ‘apply deadly force.’” Scalia, J. concurrence at 1.

2. The amicus brief of the National Association of Police Organizations and others filed in this case notes that hundreds of people die every year as a result of high-speed car chases. For example, in 2003, of the 350 people who died in high-speed chases, more than a hundred were “innocent bystanders.” Brief of Amici Curiae National Association of Police Organizations and National Sheriffs’ Association at 8; see

3. Shelby County now has a petition for cert. before the Court arising out of that ruling, and subsequent decisions regarding its entitlement to attorney’s fees as a prevailing party. See Shelby County, Alabama v. Lynch, No. 15-583.

4. Texas v. United States, No. 15-40238 (5th Cir. Nov. 9, 2015), at