Supreme Court Update: Hall v. Florida (12-10882), Plumhoff v. Rickard (12-1117), and Order List

May 28, 2014 Supreme Court Update

Greetings, Court fans!

We're back with yesterday's orders, along with two of the five decisions handed down: Hall v. Florida (12-10882), rejecting Florida's strict IQ cutoff for determining whether a person has an intellectual disability and is thus not subject to capital punishment under Atkinson v. Virginia (2002); and Plumhoff v. Rickard (12-1117), addressing whether (and how) much deadly force may be used by police in attempting to end a high-speed chase.

In Hall v. Florida (12-10882), the Court held 5-4 that Florida's method for determining whether a criminal defendant has an intellectual disability for purposes of capital punishment is unconstitutional. Freddie Lee Hall was first sentenced to death for the murders of a young pregnant woman and a sheriff's deputy in 1978. After a 1987 Supreme Court ruling that defendants facing the death penalty must be permitted to present nonstatutory mitigating evidence, Hall presented substantial evidence of intellectual disability, or "mental retardation" as it was then called, as well as evidence of a woefully abusive upbringing. A jury nonetheless voted to impose the death penalty again. After the Supreme Court's 2002 ruling in Atkinson v. Virginia that the Eight Amendment prohibits the execution of persons with intellectual disability, Hall again presented evidence of his disability, including IQ scores as low as 71. Florida courts rejected Hall's appeal, holding that under Florida law, only persons with an IQ of 70 or below can demonstrate intellectual disability.

The Court ruled, 5-4, that Florida's strict cutoff is unconstitutional, as it creates an unacceptable risk that persons with intellectual disability will be executed. Justice Kennedy wrote for the majority, joined by the liberal wing of the Court. Starting from the premise that the contours of the Eighth Amendment are shaped by the "evolving standards of decency that mark the progress of a maturing society," Kennedy looked to the medical community's current standards for assessing intellectual disability, as well as the trend in the states. Intellectual disability is marked by "significantly subaverage intellectual functioning" and "deficits in adaptive functioning" beginning before the age of 18. "Significantly subaverage intellectual functioning" is generally considered to be an IQ of about 70 or below. The medical community treats IQ scores as a range, however, subject to a standard error of measurement ("SEM"). Experts also look to evidence of deficits in adaptive functioning, for example, in medical histories and school records. But, as interpreted by the Florida Supreme Court, the Florida statute imposes a strict cutoff at 70 without accounting for SEM, above which no other evidence will be considered. In the Court's view, Florida's approach creates an unacceptable risk that persons with intellectual disability will be executed. The Court's view was bolstered by the trend in other states, a "significant majority" of which implement Atkins by taking SEM into account. At most, 9 other states impose or arguably could impose a strict 70-cutoff like Florida's but the clear trend was to consider other evidence (or, indeed, to abolish the death penalty entirely). In an apparent response to the dissent, Justice Kennedy concluded by stating that it was the Court's judicial duty to exercise independent judgment regarding the acceptability of the death penalty under the Eight Amendment: "The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects."

Justice Alito wrote for the dissenters. While the prohibition of cruel and unusual punishment embodies "evolving standards of decency," those evolving standards should be informed by objective evidence as much as possible, foremost of which are the laws enacted by the country's legislatures. Alito criticized the majority for substituting the standards of "American society as a whole" with the evolving standards of "professional societies." The dissent's review of state law found no trend, but rather, serious disagreement, on how to determine intellectual disability. In the absence of a national consensus, the dissent would not find Florida's method to be unconstitutional. For one, Florida accounts for risk of error in testing by permitting the submission of multiple IQ tests. Indeed, in the dissent's view, the Court's insistence that all defendants with IQ scores within the margin of error (as high as 75) be allowed to present evidence of deficits in adaptive functioning, which relies largely on subjective judgments, will produce more inequities in the administration of capital punishment.

Turning to our next decision, you may recall a few weeks back, the Court summarily vacated and remanded the Fifth Circuit's decision in Tolan v. Cottan (13-551), suggesting that cops aren't always entitled to qualified immunity in excessive-force cases. This week, with Plumhoff v. Rickard (12-1117), the Court returned to more familiar ground, holding 9-0 that police officers who repeatedly shot at a fleeing vehicle, killing both the driver and passenger, were entitled to qualified immunity against an excessive-force claim—assuming, that is, that there was any constitutional violation to begin with.

Donald Rickard led police on a high-speed chase after being pulled over for driving a car with only one operating headlight. The chase proceeded at speeds in excess of 100 mph down Interstate 40 between West Memphis, Arkansas, and Memphis, Tennessee. When Rickard exited I-40 in Memphis, he spun out into a parking lot and collided with one of the police cruisers pursuing him. At that point, some officers got out of their cruisers with guns drawn, as Rickard frantically attempted to maneuver his car to escape, colliding with at least two other police cruisers. One of the officers fired three shots into Rickard's car, but he persisted in his escape attempt and was able to get loose and flee down the street. However, as he made his escape, two other officers fired twelve shots at the car, which then crashed into a building. Rickard and a passenger in the vehicle both died from some combination of gunshot wounds and injuries from the crash. In total, fifteen shots were fired over the course of about 10 seconds.

Rickard's surviving daughter filed suit, alleging that the offices used excessive force in violation of the Fourth and Fourteenth Amendments. The officers moved for summary judgment on grounds of qualified immunity, but the District Court denied their motion, holding that their conduct violated clearly established law. On appeal, a threshold issue was whether the Sixth Circuit had jurisdiction to entertain an appeal from a denial of a summary judgment motion on qualified immunity grounds. The Sixth Circuit decided that it did have jurisdiction and went on to hold that the officers violated the Fourth Amendment. Although it didn't quite say so, the Sixth Circuit apparently determined (inasmuch as it affirmed the District Court) that the officers were also not entitled to qualified immunity.

The Supreme Court reversed, in an opinion authored by Justice Alito and joined by Justices Ginsburg and Breyer in part (different parts, at that), and the other six justices in full. The Court first determined that the Sixth Circuit properly exercised jurisdiction over the appeal, because the general rule that orders denying motions for summary judgment are not appealable "does not apply when the summary judgment motion is based on a claim of qualified immunity."

Turning to the merits, the Court decided the constitutional question first and concluded that the officers' conduct did not violate the Fourth Amendment. There were two challenges to the officers' conduct: first, that the officers acted unreasonably in using deadly force at all and, second, that they acted unreasonably in using so much deadly force, i.e., by shooting at Rickard fifteen times. With respect to the first issue, the Court (8-1, with Ginsburg abstaining) concluded that it was "beyond serious dispute that Rickard's flight posed a grave public safety risk," which (under the Court's previous car-chase decision in Scott v. Harris (2007)) warranted the police using deadly force to end that risk. The Justices did not consider whether anything less than deadly force—e.g., shooting Rickard's tires out—might have served as well to end the risk. With respect to the second issue—whether firing fifteen shots was reasonable under the circumstances—the Court concluded (7-2, with Breyer joining Ginsburg in abstention), that "[i]t stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended." Here, the entire volley lasted just ten seconds and Rickard never abandoned his attempt to flee during that time. The Court stressed that the case might be different if the officers had kept shooting after the driver had given up or been incapacitated. The Court also left open the possibility that the passenger might have a stronger Fourth Amendment claim under the circumstances, but that her presence in the vehicle did not alter the analysis of Rickard's claim, inasmuch as Fourth Amendment rights are personal rights, which may not be vicariously asserted. All nine Justices agreed that, regardless of the constitutionality of the officers' actions, they were entitled to qualified immunity based on the Court's 2004 decision in Brosseau v. Haugen, where it held that a police officer did not violate clearly established law when she fired at a fleeing vehicle to prevent possible harm to others. Since Brosseau was not favorably distinguishable, and since the law did not clearly shift between the time at issue in Brosseau and the time at issue here, it could not have been clearly established at the time the officers fired on Rickard that their actions violated the Fourth Amendment.

So, the final tally: Nine Justices believed the officers were entitled to qualified immunity, eight believe that it is constitutional for an officer to use deadly force to stop a fleeing vehicle, and seven believe that, once an officer starts firing, he can keep on firing until the threat posed by the fleeing vehicle is abated. We'll excuse Justices Ginsburg and Breyer for not sharing the rationale behind their partial abstentions (neither filed a concurring opinion); we know how busy it can get at the end of the Term. On that note, bear with us as we work through the rest of yesterday's decisions . . . .

But first, yesterday's orders:

The Court granted cert in Comptroller of the Treasury of Maryland v. Wynne (13-485), which asks "Does the United States Constitution prohibit a state from taxing all the income of its residents—wherever earned—by mandating a credit for taxes paid on income earned in other states?"

The Court called for the views of the Solicitor General in tandem patent cases, Commil USA v. Cisco Systems, Inc. (13-896) and Cisco Systems, Inc. v. Commil USA (13-1044). The first case would consider whether "a defendant's belief that a patent is invalid is a defense to induced infringement under 35 U.S.C. § 271(b);" and whether Global-Tech Appliances, Inc. v. SEB S.A. (2011) requires retrial on the issue of intent under 35 U.S.C. § 271(b) "where the jury (1) found the defendant had actual knowledge of the patent and (2) was instructed that ‘[i]nducing third-party infringement cannot occur unintentionally.'" The second case would ask: "Whether, and in what circumstances, the Seventh Amendment permits a court to order a partial retrial of induced patent infringement without also retrying the related question of patent invalidity."

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Kim, Jenny & Tadhg