The Supreme Court added one new case to its merits docket for next term, bringing the total number of cases slated for oral argument in the fall to eight. The grant came in Stokeling v. United States, in which the justices will once again interpret a provision of the Armed Career Criminal Act, which imposes longer sentences for repeat offenders who commit crimes with guns and have been convicted of either violent felonies or serious drug crimes. The defendant in the case, Denard Stokeling, pleaded guilty in 2016 to charges that he was a felon in possession of a gun and ammunition. Stokeling had been convicted twice for robbery in Florida, where state law includes overcoming “victim resistance” as an element of robbery, but state courts have interpreted the offense as requiring only slight force to overcome such resistance. Stokeling argues that these two Florida robbery convictions do not count as “violent felonies” for purposes of an enhanced sentence under the ACCA because the convictions did not require the use of violent force. The justices will now consider whether he is correct.
In Kisela v. Hughes, the justices overturned – without briefing or oral argument – the ruling of the U.S. Court of Appeals for the 9th Circuit in favor of Amy Hughes, whom police corporal Andrew Kisela shot and wounded in 2010. Kisela had responded to reports that Hughes was in the street with a large knife “screaming and crying very loud”; when he arrived, he saw Hughes approaching another woman. After Hughes ignored orders to drop the knife and continued to move toward the woman, Kisela fired at Hughes. The shots struck Hughes several times, although her injuries were not life-threatening.
Hughes filed a lawsuit against Kisela, alleging that the shooting violated her federal civil rights. A federal district judge ruled for Kisela, but the 9th Circuit reversed. Today, in an unsigned opinion, the Supreme Court reversed the 9th Circuit’s ruling. The opinion explained that, even if Kisela had violated the Fourth Amendment by using deadly force against Hughes (which the ruling described as “a proposition that is not at all evident”), Kisela still could not be sued because any rights that he might have violated were not clearly established – a key factor in whether government officials enjoy immunity from lawsuits.
The court rebuked the 9th Circuit, stressing that it had “repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.” This is especially important in excessive-force cases, the court continued, because otherwise police officers in the field will have trouble figuring out what they can or cannot do. Therefore, the court observed, police officers “cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” But, the court added, the 9th Circuit “failed to implement” that standard “in a correct way.” Indeed, the court suggested, although the 9th Circuit’s opinion in this case indicated that a case arising out of the FBI stand-off at Ruby Ridge in 1992 “clearly established that the shooting here was unconstitutional,” the panel’s reliance on the Ruby Ridge case “does not pass the straight-face test” because “a reasonable police officer could miss the connection between the situation confronting the sniper at Ruby Ridge” – who “shot a man in the back while the man was retreating to a cabin” – and “the situation confronting Kisela in Hughes’ front yard.”
Justice Sonia Sotomayor dissented from today’s summary reversal, in a 15-page opinion joined by Justice Ruth Bader Ginsburg. Sotomayor recounted the facts of the case, positing that if the story “sounds unreasonable, that is because it was. And yet,” she complained, “the Court today insulates that conduct from liability,” “effectively treating qualified immunity as an absolute shield.” In particular, she lamented, the court’s ruling “ultimately rests on a faulty premise”: that the cases on which the 9th Circuit relied “are not identical to this one.” But the Supreme Court, she argued, has never ruled that the “clearly established law” standard is met only when the plaintiff can point to a case with identical facts. “It is enough,” Sotomayor contended, “that governing law places the constitutionality of the officer’s conduct beyond debate” – as Kisela’s was here. But at a minimum, Sotomayor added, there is enough dispute about the facts and the law in Kisela’s case that the court should not have reversed without the benefit of briefing or oral argument on the merits.
The majority opinion may have contained a strong rebuke of the 9th Circuit, but Sotomayor’s dissent concluded with an equally forceful reprimand for her colleagues. She asserted that today’s ruling “is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public” that officers “can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
Sotomayor had more strong words in her solo dissent from the court’s denial of review in two Florida capital cases. The inmates in the cases, Jesse Guardado and Steven Cozzie, had argued that their death sentences were unconstitutional, but the Supreme Court declined to step in. Sotomayor complained that the Florida Supreme Court had – as it had in two earlier cases – “failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences” after the Supreme Court’s 2016 decision holding that the state’s death-penalty-sentencing scheme violates the Constitution. In a somewhat unusual footnote, Sotomayor quoted from a 19th-century essay by the French author André Gide: “’Everything has been said already; but as no one listens, we must always begin again.’”
The Supreme Court also declined to intervene today in a lawsuit brought against the Palestinian Liberation Organization by victims of terrorist attacks in and around Jerusalem. The victims won a judgment of over $600 million, but the court of appeals threw the case out, holding that the courts lacked jurisdiction over the PLO and the Palestinian Authority, the Palestinian self-governing body. The federal government recommended that review be denied, and today the justices announced that they would follow that recommendation, which means that the lower court’s ruling in favor of the PLO and PA will stand.
The justices once again did not act on Azar v. Garza, in which the federal government has asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for a pregnant teenager to obtain an abortion. The justices will not meet for their private conference this week, which means that we are not likely to hear any announcements on this case or others until 9:30 am on Monday, April 16.
This post was also published on SCOTUSblog.