Supreme Court Update: Davis v. United States (09-11328), Bullcoming v. New Mexico (09-10876), CSX Transportation, Inc. v. McBride (10-235) and Order List
Greetings, Court fans!
Our last Update for the Term will cover Davis v. United States (09-11328), holding that searches conducted in reasonable reliance on binding appellate precedent are not subject to the exclusionary rule even when the precedent is later overturned; Bullcoming v. New Mexico (09-10876), the Court's latest decision on a criminal defendant's Sixth Amendment right to be confronted with the analyst who performed or certified the results of a forensic test used against him; and CSX Transportation, Inc. v. McBride (10-235), on the standard of causation for railroad employee injury cases. We also have a number of cert grants to report.
One might say Willie Davis, the defendant in Davis v. United States (09-11328), was in the wrong place at the wrong time in two respects. First, he was the passenger in a vehicle when it was pulled over for a routine traffic stop. The police eventually arrested the driver (for DUI) and Davis (for giving a false name). The police then searched the vehicle and found Davis's jacket, with a revolver in the pocket. Davis was charged with unlawful possession of a firearm by a convicted felon. Second, this all happened in 2007. At that time, the Eleventh Circuit applied a bright line rule authorizing police to search vehicles incident to the arrest of recent occupants. Based on this precedent, the District Court denied Davis's motion to suppress the revolver. Davis was convicted in 2008. He appealed. In 2009, while the appeal was pending, the Court decided Arizona v. Gant. Gant held that police may search vehicles incident to arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of search. Reviewing Davis's appeal in light of Gant, the Eleventh Circuit found that the search was unlawful because Davis and the driver were handcuffed and in the back of separate patrol cars at the time of the search. But the Eleventh Circuit refused to exclude evidence of the revolver because, in its view, penalizing the arresting officer for following binding appellate precedent would do nothing to deter future Fourth Amendment violations.
The Court affirmed, 6-1-2. Justice Alito wrote for the majority. Exclusion, the Court stressed, is neither a personal constitutional right, nor designed as a remedy for an unconstitutional search. The Fourth Amendment protects against unreasonable searches and seizures, but it says nothing about excluding evidence. Rather, the Court created the exclusionary rule for the sole purpose of deterring future Fourth Amendment violations. Since that time, the Court has recognized that the deterrence benefits of exclusion must be weighed against its heavy costs. In many cases, the unfortunate "bottom-line effect" of exclusion is to "suppress the truth and set the criminal loose in the community without punishment." The Court has also recognized that the deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue. When the police exhibit deliberate, reckless, or grossly negligent disregard for the Fourth Amendment, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. But where, as in Davis's case, the police acted in strict compliance with binding precedent, there can be no deterrent value. Indeed, when binding precedent authorizes a particular police practice, we want officers to use that tool to protect the public.
Justice Sotomayor concurred in the judgment. She agreed that the exclusionary rule did not apply in this case because exclusion could not reasonably be expected to yield appreciable deterrent value where binding appellate precedent specifically authorized the practice. She wrote separately to note that this case did not address whether exclusion would have deterrent value where appellate precedent was unsettled (i.e., by encouraging officers to err on the side of constitutional behavior).
Justice Breyer dissented, joined by Ginsburg. Like the majority, the dissenters would find that Gant applied retroactively to Davis. Unlike the majority, the dissenters would give Davis what they believed to be the usual remedy for a Fourth Amendment violation – exclusion of the evidence. The dissenters cautioned that the Court's new "good faith" exception would be difficult to apply. Fourth Amendment cases often require courts to "slosh" their way through the "factbound morass of reasonableness." The majority provided no rules for determining when, where, or how different types of precedent would count as relevant "binding precedent." The new exception would also be unfair – defendants in cases announcing new rules would get the benefit of the new rule, while similarly situated defendants with cases pending on appeal would not. The dissenters were most troubled by the majority's apparent rationale for the "good faith" exception – that exclusion is only worth it when the police exhibit "deliberate, reckless, or grossly negligent disregard" for the Fourth Amendment. The Fourth Amendment protects against unreasonable searches and seizures. But the majority's rationale, if applied more broadly, would result in a "watered-down Fourth Amendment" that protects against only searches and seizures that are egregiously unreasonable.
In Bullcoming v. New Mexico (09-10876), the Court stressed that it meant what it said, and said what it meant when it held in Melendez-Diaz v. Massachusetts (2009) that prosecutors may not introduce a forensic laboratory report containing testimonial evidence without offering a live witness competent to testify about the statements in the report. In this case, Bullcoming was arrested on suspicion of driving while intoxicated. Police took a blood sample and sent it to a state laboratory, where it was tested by one Curtis Caylor. Caylor recorded a .21 blood-alcohol concentration, an inordinately high level that qualified Bullcoming for aggravated DUI charges. Caylor signed the report, thereby affirming that he followed proper procedures and that the statements in the report were correct. On the day of trial, the State announced that it would not be calling Caylor as a witness because he had been placed on unpaid leave for unrevealed reasons. Over defense counsel's objections, the State introduced the report as a business record through the testimony of Gerasimos Razatos, who was familiar with the lab's procedures but had not participated in this particular test. Bullcoming was convicted. While Bullcoming's appeal was pending before the New Mexico Supreme Court, Melendez-Diaz was decided. In light of Melendez-Diaz, the New Mexico Supreme Court acknowledged that Bullcoming's blood-alcohol report qualified as testimonial evidence. The court nonetheless held that the admission of the report did not violate the Confrontation Clause of the Sixth Amendment because Caylor "was a mere scrivener" who "simply transcribed" the machine-generated results, and because Razatos qualified as an expert witness.
The Court reversed, in an intriguing alignment. Justice Ginsburg wrote for the majority. She was joined in full by Scalia, and in most part by Sotomayor, Kagan, and Thomas. The Court rejected the notion that Caylor was a "mere scrivener." Blood-alcohol testing involves the risk of human error – indeed, amici informed the Court that one laboratory in Colorado had produced 206 flawed blood alcohol readings in a three-year time span. Moreover, Caylor made several statements in the report about the procedures he followed. Particularly in light of Caylor's being placed on unpaid leave, the defense should have been allowed to cross-examine him. The Court then rejected the New Mexico Supreme Court's conclusion that Razatos was a competent surrogate. Razatos could not testify as to what Caylor actually knew, saw, or did. Razatos did not even know why Caylor had been placed on leave. Finally, the Court rejected the State's last-ditch effort to argue that the report was not testimonial because it was unsworn. The absence of an oath or notarization made the report no less testimonial. "In short, when the State elected to introduce Caylor's certification, Caylor became a witness Bullcoming had the right to confront." In a section joined only by Scalia, Ginsburg refuted concerns that the Court's approach would impose an undue burden on the prosecution. Few cases proceed to trial. States can enact notice-and-demand procedures placing the onus on defendants to demand that a live witness be presented. "The sky has not fallen" in jurisdictions where forensic analysts commonly testify. And here, New Mexico law requires the laboratory to preserve samples, so the State could have conducted a retest and had that analyst testify.
Justice Sotomayor wrote a separate opinion concurring in part. She agreed with the Court's determination that the report in this case was testimonial and that Razatos was not a competent witness. But she wrote to highlight several factual circumstances that the case did not present, and suggested that the Court's analysis might have been different if: (1) the State had suggested an alternate purpose for the report (to provide medical treatment, for example); (2) Razatos had been Caylor's supervisor or reviewer, or had some other personal connection to the test; (3) an expert witness had been asked for his independent opinion about the report; or (4) the State had introduced only machine-generated results.
The dissenters were the same as in Melendez-Diaz – Justice Kennedy, joined by the Chief, Breyer, and Alito. Predictably, they thought that the Court was only compounding the error of Melendez-Diaz. Requiring prosecutors to call the analyst who fills out a form, as opposed to any other analyst who can explain the procedures used, was, in their view, a "hollow formality." In the lab where Bullcoming's sample was processed, for example, analyses are run in batches of 40-60 samples. Each sample is identified by a computer-generated number, the analysis is performed by a machine (which may operate, as it did in this case, after all the lab employees leave for the day). The results, whatever they may be, are reported to law enforcement and defense. Here, the State produced a witness that was just as qualified to answer questions about the testing process, and the defense was able to highlight the limitations of his testimony in cross-examination. Nothing more should be needed, especially since, as the Court has held, the government need not produce at trial every person who has laid hands on the evidence.
Our third case, CSX Transportation, Inc. v. McBride (10-235) will be directly relevant to you only if you work for or represent a railroad. But it does have some interesting things to say about proximate cause for all. The Federal Employers' Liability Act (FELA) holds railroads liable for employees' injuries or deaths "resulting in whole or in part from [carrier] negligence." (Not to be confused with FELA!, the hit Broadway musical based on the life of Nigerian musician Fela Kuti.) Here, Robert McBride sustained injuries to his hand while working as a locomotive engineer for CSX. McBride sued under FELA, claiming that CSX was negligent in requiring him to use unsafe equipment, and in failing to train him to operate that equipment. At trial, the District Court declined to give CSX's proposed instruction on proximate cause, which would have required the jury to find that CSX's negligence, "in natural or probable sequence, produced" McBride's injury. Instead, the court employed the Seventh Circuit's pattern instruction for FELA cases, which read in part: "Defendant ‘caused or contributed to' Plaintiff's injury if Defendant's negligence played a part—not matter how small—in bringing about the injury." The jury returned a verdict for McBride. On appeal, CSX continued to press for a narrower instruction on proximate cause. The Seventh Circuit affirmed.
The Court affirmed as well, 5-4, with Justice Thomas joining the liberal wing for most, but not all, of Justice Ginsburg's opinion. The case turned on the continued viability and interpretation of the Court's decision in Rogers v. Missouri Pacific R. Co. (1957). In that case, the Court held that FELA did not incorporate any traditional common-law formulation of proximate causation. Rather, Congress enacted FELA in 1910 as a response to "harsh and technical" rules of state common law that made it difficult or even impossible for injured railroad workers to obtain recovery. But lower courts continued to reinsert common-law formulations of causation into FELA cases. To "end lower court disregard of congressional purpose," the Rogers Court instructed that "the test of a jury case [under FELA] is simply whether . . . employer negligence played any part, even the slightest, in producing the injury." Rogers' "any part" instruction adhered to FELA's language providing that railroad employers be held liable for injuries resulting "in whole or in part" from their negligence. Moreover, since Rogers, every Court of Appeals has approved jury instructions identical or substantively equivalent to those used in this case. To read Rogers differently now would upset several decades of settled law. The Court dismissed CSX and the dissent's concerns that Rogers' "any part" instruction left railroads open to unlimited liability. CSX was unable to identify a single trial in fifty years where the instruction had generated an absurd award. Here, the Court upheld McBride's award, as the jury was properly instructed on the standard of causation under FELA.
In one section of the opinion that Justice Thomas did not join – making it for the plurality only – Justice Ginsburg cited some eye-opening studies questioning whether the term "proximate cause" and its various formulations were helpful to jurors at all. In one study, 85% of actual and potential jurors were unable to understand a pattern proximate cause instruction similar to the one requested by CSX. In another, nearly a quarter of the subjects misunderstood proximate cause to mean "approximate cause" or "estimated cause." (This is a good reminder to avoid using legal jargon at trial.)
Chief Justice Roberts led the dissent. FELA expressly abrogated the common law in four ways, including abandoning the common law contributory negligence rule (which barred plaintiffs from recovering anything if their own negligence contributed to their injuries). Otherwise, as the Court held in a pre-Rogers case, "the elements of a FELA claim are determined by reference to the common law." The dissenters vehemently disagreed that FELA did away with common law proximate cause. By the dissenters' reading, FELA's "in whole or in part" language only reflected the fact that Congress was rejecting the principle of contributory negligence, not that it was rejecting the requirement of proximate cause. Likewise, Rogers' "any part" language only clarified that the railroad's negligence need not be the sole or primary cause for the employee's injury. In the dissent's view, proximate cause "supplies the vocabulary" and comes with an "accumulated common law history" that gives courts and juries necessary guidance on causation questions. The causation test embraced by the majority, in contrast, contains no limit on causation at all. The dissent acknowledged that the federal courts of appeals had read Rogers to require jury instructions like the one given in this case. "But," the Chief intoned, "we do not resolve questions such as the one before us by a show of hands."
That's our last case summary for the Term, but don't despair. You can look forward to these cases next Term:
United States v. Jones (10-1259), which asks: (1) "Whether the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment;" and (2) "whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent."
Williams v. Illinois (10-8505), which asks, "whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause."
Messerschmidt v. Millender (10-704), which asks the rather loaded question: "are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search?"
Martel v. Clair (10-1265), which asks, "Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence."
Credit Suisse Securities v. Simmonds (10-1261), which asks, "Whether the two-year time limit for bringing an action under Section 16(b) of the Securities Exchange Act of 1934 . . . is subject to tolling, and, if so, whether tolling continues even after the receipt of actual notice of the facts giving rise to the claim."
FCC v. Fox Television Stations (10-1293), which asks, "Whether the Federal Communications Commission's current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution."
Coleman v. Court of Appeals of MD (10-1016), which asks, "Whether Congress constitutionally abrogated states' Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act."
Sackett v. EPA (10-1062), which asks: (1) "May petitioners seek pre-enforcement judicial review of [an EPA] administrative compliance order pursuant to the Administrative Procedure Act;" and (2) "If not, does petitioners' inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?"
Knox v. Service Employees Int'l Union (10-1121), which asks whether a State, consistent with the First and Fourteenth Amendments, may (1) "condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a [ ] notice that includes information about that assessment and provides an opportunity to object to its exaction"; and (2) "condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?"
Mims v. Arrow Financial Services, LLC (10-1195), which asks whether Congress "divest[ed] the federal district courts of their federal-question jurisdiction under 28 U.S.C. § 1331 over private actions brought under the Telephone Consumer Protection Act."
National Meat Ass'n v. Harris (10-224), which asks three questions: (1) Did the Ninth Circuit err in holding that a "presumption against preemption" requires a "narrow interpretation" of the Federal Meat Inspection Act's ("FMIA") express preemption provision"; (2) "Where federal food safety and humane handling regulations specify that animals (here, swine) which are or become nonambulatory on federally-inspected premises are to be separated and held for observation and further disease inspection, did the Ninth Circuit err in holding that a state criminal law which requires that such animals not be held for observation and disease inspection, but instead be immediately euthanized, was not preempted by the FMIA"; and (3) "Did the Ninth Circuit err in holding more generally that a state criminal law which states that no slaughterhouse may buy, sell, receive, process, butcher, or hold a nonambulatory animal is not a preempted attempt to regulate the ‘premises, facilities, [or] operations' of federally-regulated slaughterhouse."
Caraco Pharmaceutical v. Novo Nordisk A/S (10-844), which asks whether the Hatch-Waxman Act's counterclaim provision – which allows generic drug makers and others to seek an order requiring patent holders to correct or delete patent information – applies where "(1) there is ‘an approved method of using the drug' that ‘the patent does not claim,' and (2) the brand submits ‘patent information' to the FDA that misstates the patent's scope, requiring ‘correct[ion].'"
And, finally, when the United States Patent and Trademark Office (PTO) denies an application for a patent, the applicant may seek judicial review of the agency's final action through either of two avenues: direct review of the agency's determination in the Federal Circuit, or a civil action against the Director of the PTO in federal district court under 35 U.S.C. §145. Kappos v. Hyatt (10-1219) asks (1) "Whether the plaintiff in a Section 145 action may introduce new evidence that could have been presented to the agency in the first instance;" and (2) "Whether, when new evidence is introduced under Section 145, the district court may decide de novo the factual questions to which the evidence pertains, without giving deference to the prior decision of the PTO."
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Thank you, Court fans, for following the Term with us. We're going on summer recess now, too. We'll keep an eye on the Court and let you know if anything interesting transpires in these languid days of summer. Otherwise, rest up, have a wonderful summer, and we'll look forward to seeing you again in October!
Kim & Jenny