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May 30, 2017

Consensus reigning (for now) as SCOTUS continues working through its criminal docket

Because the Supreme Court has already resolved all of its major sentencing cases, there is not all that much for sentencing fans to anticipate as the Justices wind down with final opinions over the final weeks of its Term.  But there are still plenty of criminal justice cases pending that may still lead to notable opinions, and two such rulings were handed down this morning.  As the title of this post highlights, what strikes me as notable about these new opinions is how the Justices were content to speak in one voice despite the potential contentiousness of the issues.  

In Esquivel-Quintana v. Sessions, No. 16-54 (S. Ct. May 30, 2017) (available here), Justice Thomas wrote the opinion for the unanimous Court and it starts this way:

The Immigration and Nationality Act (INA), 66 Stat. 163, as amended, provides that “[a]ny alien who is convicted of an aggravated felony after admission” to the United States may be removed from the country by the Attorney General. 8 U. S. C. §1227(a)(2)(A)(iii). One of the many crimes that constitutes an aggravated felony under the INA is “sexual abuse of a minor.” §1101(a)(43)(A). A conviction for sexual abuse of a minor is an aggravated felony regardless of whether it is for a “violation of Federal or State law.” §1101(a)(43). The INA does not expressly define sexual abuse of a minor.

We must decide whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA.  We hold that it does not.

In County of Los Angeles v. Mendez, No. 16-369 (S. Ct. May 30, 2017) (available here), Justice Alito wrote the opinion for the unanimous Court and it starts this way:

If law enforcement officers make a “seizure” of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force?  The Ninth Circuit has adopted a “provocation rule” that imposes liability in such a situation.

We hold that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.

May 30, 2017 at 11:17 AM | Permalink


Mendez is problematic. I don't disagree with the holding--obviously, the Ninth Circuit strayed, but I don't think a free society should permit police officers to violate laws and then use their guns to pacify those who are innocently responding. Obviously, that's a generalized statement, so I can expect some niggling comment from Joe.

Posted by: federalist | May 30, 2017 11:57:57 AM

It's okay. Generalized statements are only problematic when "'rats" do it. ;)

I was a bit surprised that the opinion was unanimous but reports from the oral argument (SCOTUSBlog) suggested it was a "sympathetic facts, bad law" sort of case. It also was intriguing since it had a sort of Second Amendment aspect to it -- didn't research it, but probably some gun rights sorts were concerned about it.

The telling point, and perhaps why none of the usual suspects added a concurrence, is the footnote. Alito noted that "respondents do not attempt to defend the provocation rule." He then noted that the respondents thought they should win using the right test. But, he said SCOTUS didn't grant on that question & the court below didn't address it.

So, federalist's copacetic value judgment can still be protected.

Posted by: Joe | May 30, 2017 12:16:02 PM

I don't find Mendez problematic because of what they didn't decide in Mendez. Mendez left two options open: 1) it allowed the lower court to consider the earlier conduct as part of the factual circumstances impacting whether the use of force was excessive; and 2) it allowed the lower courts to consider whether the warrantless entry into the "residence" was a proximate cause of the injuries.

What the Supreme Court rejected was the merging of the unlawful entry violation into the unreasonable use of force (i.e. that the unlawful entry made the use of force automatically unreasonable). They also rejected the Ninth Circuit's proximate cause analysis because it was based on the failure to knock and announce (for which the officers had qualified immunity) rather than on the unlawful entry (for which the officers did not have qualified immunity.)

My expectation is that, on remand, the Ninth Circuit will find that the injuries were proximately caused by the unlawful entry and modify the judgment to transfer the "real" damages from the excessive force claim to the unlawful entry claim which is arguably the right judgment under these facts.

Posted by: tmm | May 30, 2017 4:12:20 PM

I would note that -- on the immigration case -- this is part of the law that all prosecutors and defense attorneys are presumed to know in plea negotiations. The fact that the lower court judges -- both the Board of Immigration Appeal and the Sixth Circuit -- had a different view of whether this type of offense triggered removal is simply a non-factor because the law on this issue is clear enough that all criminal law practitioners and judges should know which offenses triggered removal without the need for the Supreme Court to tell us. I can already see the collateral review claims asserting that plea counsel was ineffective for letting their client plead to sexually abusing someone younger than sixteen (thereby triggering removal under today's decision) when a plea to a different offense (for sexually abusing somebody younger than seventeen or eighteen)would not have triggered any immigration consequences.

Posted by: tmm | May 30, 2017 4:24:07 PM

I'm with @tmm and I am not with him. I agree that under established law the SCOTUS got it right but I don't agree with the way the 4A has been interpreted by SCOTUS. In a common sense sort of way it is exceedingly strange to think that Mendez's injuries were caused by a warrentless entry. The entry didn't harm Mendez, the bullets did. This isn't to say that a warrentless entry imposes no harms but that the warrentless entry didn't cause the harms the plaintiff was complaining about in this case. The court seems to be taking a "but for" causation. "But for" the warrentless entry the bullets never would have flown and therefore that's where we tag the legal liability.

I agree with the 9th that this leads us to a socially unsatisfactory place because it implies that once the police have a valid warrant the police can go into a person's home and bust up the place and the occupants have no legal remedy. The 4A test is reasonableness and the reasonableness of a seizure does not turn /alone/ on whether that seizure has been blessed by a judge. It turns on the way that seizure is actually executed on the ground by the executive official. The executive's actions can turn a facially reasonable search into an unreasonable one.

Posted by: Daniel | May 30, 2017 4:36:58 PM

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