Muehler v. Mena (03-1423), Brown v. Payton (03-1039) and City of Rancho Palos Verdes v. Abrams (03-1601)

March 22, 2005 Supreme Court Update

Greetings, Court Fans!

The Court is back after a two-week break and issued three opinions today. Brace yourselves for a breakneck pace from here on out: we're now up to 32 opinions for the session – leaving about 50(!) to be released in the next three months. All three opinions today reversed decisions by the Ninth Circuit – meaning that court has gone an impressive 1 for 8 this year. Anyone up for a wager on the win/loss percentage for the remainder of the year?? Onto the opinions . . . .

If you've ever had a nightmare about waking up to armed police in your bedroom, you'll be interested in Muehler v. Mena (03-1423). While executing a search warrant, a SWAT team awoke Mena at 7 a.m., placed her in handcuffs without letting her change out of her bedclothes, and held her that way in her garage for 2-3 hours with three of her tenants while they searched her home and let an INS officer question her. Mena was not the subject of the investigation, which concerned a gang-related shooting allegedly committed by one of her tenants. Mena claimed that the officers violated her Fourth Amendment rights by detaining her for an "unreasonable time and in an unreasonable manner" and by questioning her regarding her immigration status. The jury found for Mena, and the Ninth Circuit affirmed on the ground that her detention was objectively unreasonable as a matter of law. The Supreme Court vacated and remanded, holding that Mena's detention in handcuffs for the duration of the search did not violate the Fourth Amendment.

The majority opinion (by the Chief, joined by O'Connor, Scalia, Kennedy and Thomas) relied on Michigan v. Summers, which held that police have "categorical" authority to detain an individual while searching her property. Under Summers, the police clearly had the initial authority to detain Mena – a proposition with which no Justice disagreed. The question was whether the duration of the detention and the extended use of handcuffs was reasonable. The majority found that it was, given the nature of the investigation (a gang-related shooting) and the fact that four individuals were detained, heightening the risks to police. As to Mena's immigration status, mere questioning is not a discrete Fourth Amendment event; because Mena's detention was otherwise lawful and she did not allege that it was extended by the questioning, no Fourth Amendment violation occurred.

Justices Stevens (joined by Souter, Ginsburg and Breyer) concurred in the judgment. Stevens worried that the majority's logic would permit the "handcuffing of every occupant of the premises for the duration of every Summers arrest." Stevens agreed that the Ninth Circuit wrongly concluded that Mena's detention was unreasonable as a matter of law, but he found the facts sufficient to permit a jury to conclude that it was objectively unreasonable. Justice Kennedy also concurred, noting that he did not support handcuffing for an unlimited duration in all Summers arrests. For Kennedy, handcuffs should come off when an objectively reasonable officer would conclude that it would not compromise officers' safety or when the duration of the detention causes real pain or discomfort (for at least long enough to attend to the needs of the detainee). Kennedy found Mena's detention reasonable because the officers were outnumbered.

Next, in Brown v. Payton (03-1039), the Court reversed the Ninth Circuit's grant of habeas relief for Payton based on jury instructions and prosecutor misstatements made during the penalty phase of his capital murder trial. Payton had presented mitigation evidence concerning his post-conviction religious conversion and character transformation. The trial court's jury instructions listed certain mitigation factors, including a catch-all for "[a]ny other circumstance which extenuates the gravity of the crime," but denied Payton's request for an instruction making clear that the jury could consider post-crime mitigation facts. The prosecutor seized on this ambiguity and argued repeatedly that Payton's post-conviction rehabilitation was irrelevant. The trial court told the jury that the prosecutor's argument was not evidence, but it did not correct the prosecutor. Relying on Boyde v. California, which held that the catch-all instruction was broad enough to encompass character evidence, the California Supreme Court affirmed Payton's death sentence because it was unlikely that the jury ignored his mitigation evidence. The District Court granted Payton's habeas petition and a split en banc panel of the Ninth Circuit affirmed, relying on the fact that – unlike Boyde –Payton presented post-crime mitigation evidence (arguably not covered by the catch-all) and the prosecutor affirmatively misled the jury (a factor also not present in Boyde).

The Supreme Court reversed (in an opinion authored by Kennedy and joined by O'Connor, Scalia, Thomas and Breyer; the Chief did not participate). The Court emphasized that the case was not subject to de novo review but review under AEDPA, which limited the Court to considering whether the state court unreasonably applied clearly established federal law. Given Boyde, the California Supreme Court's decision was not unreasonable, even though the facts were somewhat different. The majority stressed the breadth of the catch-all provision, the fact that the trial court admonished the jury that the prosecutor's argument was not evidence, and the fact that Payton's counsel argued to the jury that his post-conviction rehabilitation was relevant.

Justice Scalia concurred to state that "limiting a jury's discretion to consider all mitigating evidence does not violate the Eighth Amendment" (a little late, perhaps, to reconsider this issue . . . .). Justice Breyer wrote separately to emphasize that, were the case subject to de novo review, he would "likely hold that Payton's penalty-phase proceedings violated the Eighth Amendment." Finally, Justice Souter (joined by Stevens and Ginsburg) dissented, arguing that the "clearly established" law is not Boyde but the general rule that juries must be permitted to consider all mitigation evidence. Given the ambiguity in the trial court's instructions and the prosecutor's repeated, uncorrected misstatements, the California Supreme Court should have found that Payton's Eighth Amendment rights were violated – and Payton's impending execution obviously made this violation substantial and injurious.

And now, a message for all those hankering to build radio towers in your backyards: if your zoning board says no, don't come to court under 42 U.S.C. § 1983. In City of Rancho Palos Verdes v. Abrams (03-1601), a unanimous Court held that the Telecommunications Act of 1996 ("TCA") precludes a plaintiff from suing a zoning board under § 1983 for wrongfully denying his application. The TCA limits the ability of local governments to restrict wireless facilities and expressly provides a cause of action for anyone "adversely affected" by a decision that violates those limitations. When the local board denied Abram's application to build a radio antenna in his yard, he filed suit under the TCA and § 1983 (for violating the rights created in the TCA). The district court found for Abrams under the TCA and ordered the city to grant his application, but it held that the TCA was his exclusive remedy and rejected his § 1983 claim for damages and attorneys' fees. Relying on a separate TCA provision stating that the statute was not meant to "impair" the operation of federal law, the Ninth Circuit reversed the § 1983 ruling because preclusion would "impair" the operation of § 1983. That ruling created a conflict with the Third and Seventh Circuits and practically asked for a reversal . . .

. . . which is exactly what happened, in an opinion by Justice Scalia: Assuming that the TCA created individually enforceable rights (an issue not before the Court), Congress did not intend the TCA's remedy to coexist with an alternative remedy under § 1983. The city, and the U.S. Government as amicus, had argued that the availability of the TCA's more restrictive private remedy was conclusive evidence of Congress' preclusive intent. The Court rejected that position in favor of an "ordinary inference" rebuttable "by textual indication," but found no such indication in the TCA, which limited relief in ways that § 1983 does not – for example, by not providing for attorneys' fees (the district courts seem to be split on compensatory damages under the TCA, perhaps a topic for next term) and establishing a 30-day limitations period. The Court rejected the Ninth Circuit's "impairment" reasoning because the TCA created new rights and thus limiting their enforcement to the TCA's remedy has no effect on the pre-TCA operation of § 1983.

The two concurrences targeted Justice Scalia's disdain for legislative history. In the first, Justice Breyer (joined by O'Connor, Souter and Ginsburg) stated that he would add to the Court's opinion that "context, not just literal text, will often lead a court to Congress' intent." In the second, Justice Stevens concurred only in the judgment. Stevens felt that the Court unduly minimized the initial presumption that § 1983 relief is available where a statute creates individually enforceable rights – the city easily met its burden given the language and history of the TCA, but there will be "many other instances" where § 1983 is available even though Congress did not say so. Stevens also felt that the Court "incorrectly assume[d] that the legislative history of the statute is totally irrelevant," contrary to "nearly every case we have decided in this area of law." Once again, "the dog that didn't bark" reared its head, as Stevens found Congress' silence on attorneys' fees probative.

The Court did not grant cert in any new cases this week. There were, however, three notable denials. First, the Court declined to hear the pre-trial appeal of accused terrorist Zacarias Moussaoui (04-8385), clearing the way for his trial. Second, in Evans v. Stephens (04-828), the Court declined to review President Bush's recess appointment of Judge William Pryor to the Eleventh Circuit (the Court also declined to hear two other recess appointment challenges). Justice Stevens issued a pointed statement agreeing that there were "legitimate prudential reasons for denying certiorari in this somewhat unusual case." He emphasized, however, that "it would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intracession ‘recesses.'" (emphasis added).

And third, in Bell v. Quintero (04-386), Justice Thomas, joined by the Chief, dissented from the Court's refusal to hear a Sixth Circuit habeas case for the second time. At trial, Quintero's counsel did not object to the participation of seven jurors who were on a jury that had already convicted his partner in crime (what are the odds?). In the first instance, the Sixth Circuit held that this was per se ineffective assistance of counsel, but the Supreme Court vacated and remanded for proper application of United States v. Cronic, which requires per se ineffectiveness claims to fit in one of three specific categories. The Sixth Circuit then put the case in the Cronic category of failing to subject the prosecution to "meaningful adversarial testing," and on Monday the Court let that ruling stand. Thomas and the Chief dissented on the ground that, under the Court's 2002 decision in Bell v. Cone, the attorney's failure must be "complete," whereas Quintero's lawyer did put on a defense. Thomas also believed that the Sixth Circuit confused a structural error – the composition of the jury – with actual attorney performance. The lawyer may have been ineffective, but the Sixth Circuit should not have presumed so – based on the record, it was unclear if he knew that some of the jurors had served on the other trial, so he may have been blameless. This was the third Sixth Circuit case the Court had remanded under Cone, and Thomas would take it again to correct their "latest error."

Finally, although this bit of news has been overtaken by events, late Friday night the Court rejected an application by the House Government Reform Committee for an injunction requiring continued sustenance for Terri Schiavo. This was the second time in two days that the Court refused to get involved (Schiavo's parents unsuccessfully asked to stay the removal of her feeding tube pending their cert petition). With the recent passage of a law specifically requiring federal courts to consider Schiavo's case, and the district court's refusal today to grant her family a TRO, another application to the Court will be coming in the very near future.

That's all for now. Be prepared for many new decisions in the weeks to come!

Kim & Ken

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400