Supreme Court Update: Kurns v. Railroad Friction Products Corp. (10-879), Martel v. Clair (10-1265), and Messerschmidt v. Millender (10-704)

March 16, 2012 Supreme Court Update

Greetings, Court fans!

We're back with three more decisions, which gets us caught up with the Court's recent published activity. The decisions came in Kurns v. Railroad Friction Products Corp. (10-879), where the Court held that the Locomotive Inspection Act preempts state law design-defect and failure-to-warn claims; Martel v. Clair (10-1265), regarding the standard for evaluating motions to substitute counsel in death penalty habeas proceedings; and Messerschmidt v. Millender (10-704), in which the Court overturned the Ninth Circuit's en banc decision on qualified immunity in a case involving an overbroad search warrant.

In recent years, field preemption claims have been about as popular with the Court as hot chocolate on a 100 degree day, but in Kurns v. Railroad Friction Products Corp. (10-879), the Court proved that field preemption lives on – at least if you have an 85-year-old precedent to hang your hat on. Since 1915, the Locomotive Inspection Act (LIA) has required railroad carriers to use or allow to be used locomotives or tender "only when the locomotive or tender and its parts and appurtenances" "are in proper condition and safe to operate," "have been inspected as required . . . by the Secretary of Transportation" and "can withstand every test prescribed by the Secretary." In 1926, the Court ruled in Napier v. Atlantic Coast Line R. Co. that, because of its broad scope, LIA manifested Congress' intent to occupy the entire field of regulating locomotive equipment. The Napier Court explained that the pre-empted field was to be determined not by the "object sought by the legislation," but by the "physical elements affected by it" – i.e., "the equipment of locomotives." The issue presented in Kurns was whether LIA preempted state law design-defect and failure-to-warn claims brought by an individual who died from malignant mesothelioma after working for decades repairing locomotives and locomotive parts, some of which were alleged to contain asbestos.

The majority, which included the conservative wing of the Court and Justice Kagan, found that it did, in a short opinion by Justice Thomas. Kurns didn't even ask the Court to overrule the venerable (a/k/a old) Napier decision. Instead, Kurns argued that the landscape had changed since Napier because the Federal Railroad Safety Act of 1970 (FRSA) diminished the preemptive force of LIA. While FRSA does provide that States may adopt or continue in force laws related to railroad safety until the Secretary prescribes a regulation covering the subject matter, the Court found that FRSA did not displace other existing laws and therefore could not alter the preemptive force of LIA, which was enacted 55 years earlier. The Court also quickly dismissed Kurns' argument that state law design-defect and failure-to-warn claims fell outside the scope of LIA's preemption because they related to the repair and maintenance of locomotives rather than their use on the railroad line. Because Napier defined preemption in terms of physical elements – locomotive equipment – these claims clearly fell within LIA's preemptive reach. Further, failure-to-warn claims, even though not aimed at the physical equipment directly, were covered because state law warning requirements involve a finding that the equipment is unsafe without a warning and may ultimately impact the physical design of the equipment. Finally, the Court rejected petitioner's argument that the claims were not preempted because they were brought against manufacturers, not carriers. Again, the Court simply pointed back to Napier's ruling that the scope of preemption was based on the object regulated – not the reason for the regulation or the entity regulated.

Justice Kagan wrote a separate concurring opinion to note her "doubt" that the Court would decide Napier "the same way today," but that "Napier governs so long as Congress lets it." Justice Sotomayor, joined by Justices Ginsburg and Breyer, concurred in part and dissented in part. They agreed that Napier was controlling, though they, like Kagan, believed it would not be decided the same way today. They also agreed that the design-defect claims were preempted in light of Napier's conclusion that the pre-empted field was determined by the "physical elements" regulated by LIA. But they would confine Napier to its words and find state law failure-to-warn claims permissible since those claims "proceed on a fundamentally different theory of tort liability that does not implicate a product's physical composition at all."

Next, Justice Kagan wrote for a unanimous Court in Martel v. Clair (10-1265). Kenneth Clair was convicted of a 1984 California murder and sentenced to death. After exhausting his direct appeals, Clair requested appointment of habeas corpus counsel under 18 U.S.C. § 3599, which entitles indigent defendants to appointed habeas counsel in capital cases. Clair and his appointed counsel filed a habeas petition raising more than 40 claims. The District Court held an evidentiary hearing on Clair's petition in August 2004, and the parties submitted post-hearing briefs in February 2005. Thereafter, the court told the parties that it considered briefing "to be complete and d[id] not with to receive any additional material." But on March 16, 2005, Clair wrote to the court, claiming that he no longer wanted his appointed counsel to represent him because they resisted his efforts to participate in his own defense and were looking only to overturn his death sentence, not his conviction. After the court asked the parties to address Clair's motion to substitute counsel, Clair's attorneys sent a letter dated April 26, 2005 stating their understanding that Clair now wanted them to continue to represent him. Relying on that representation, the court stated that it would take no further action. But six weeks later, on June 16, 2005, Clair wrote another letter asking for substitution of counsel and citing a "total break down of communication." Clair reiterated the points he had made in his March letter, and also added that his private investigator had recently learned that certain physical evidence from the crime scene had never been fully tested. Clair claimed his attorneys were not following up on this discovery because of their focus on his sentence, rather than questions of guilt.

Two weeks later, the District Court denied Clair's request for substitution without further inquiry, finding that "counsel is doing a proper job" and "[n]o conflict of interest or inadequacy of counsel is shown." On the same day, it denied Clair's habeas petition. Clair sought review of the denial of his substitution motion, and also appealed the denial of his habeas petition under FRCP 60(b). The Ninth Circuit vacated the denial of both the request for substitution and the habeas petition, holding that the District Court abused its discretion by failing to inquire into the complaints in Clair's second letter seeking substitution.

The Supreme Court reversed. It first addressed the standard for deciding a motion to substitute counsel by a person seeking federal habeas relief from a state death sentence. 18 U.S.C. § 3599 provides that an appointed attorney may be "replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant," but does not state how a court should decide such a motion. Clair argued – and the Ninth Circuit agreed – that district courts should apply an "interests of justice" standard that appears in 18 U.S.C. § 3006A, which governs the appointment and substitution of counsel in non-capital cases. The State countered that district courts should only replace appointed counsel when a capital defendant has suffered an "actual or constructive denial" of counsel. The Court sided with Clair, noting that before 1988, § 3006A governed in all federal habeas cases, including capital cases. In 1988, Congress enacted § 3599 in order to grant federal capital defendants and all capital habeas petitioners enhanced rights of representation. The Court reasoned that, in expanding rights, Congress would not have intended by its silence to impose a more restrictive standard for substituting counsel under § 3599 than the "interests of justice" standard embodied in § 3006A – a standard that still applies to defendants facing lesser penalties. In contrast, the Court found a "dearth of support" for the State's position. It found strength only in the State's concern that, under the "interests of justice" standard, motions to substitute counsel will become "a mechanism to defer enforcement of a death sentence." But the Court determined that the "interests of justice" standard could itself deal with the issue because "[p]rotecting against abusive delay is an interest of justice" and courts "routinely consider issues of timeliness."

And then the Court did just that. Applying the "interests of justice" standard, it determined that the District Court did not abuse its discretion in denying Clair's second request for new counsel because it appeared on the court's doorstep following an evidentiary hearing and post-hearing briefing, just as the court was about to decide on Clair's 10-year-old habeas petition. The court had inquired into Clair's relationship with his lawyers just a short time earlier, when it received his first substitution request. The only new wrinkle was Clair's fresh claim that his attorneys had refused to investigate newly identified physical evidence. Although the allegation was significant, the Court determined that the timing of the motion precluded a finding of abuse of discretion. The District Court had informed that parties that it would accept no further submissions, and "[t]he case was all over but the deciding; counsel, whether old or new, could do nothing more in the trial court proceedings."

In Messerschmidt v. Millender (10-704), a six-justice majority led by the Chief reversed an en banc qualified immunity decision of the Ninth Circuit. The case began with a call to the police from Shelly Kelly, who wanted to break up with her abusive boyfriend, Jerry Ray Bowen, a multiple violent felon. Fearing an attack, Kelly asked Los Angeles County Sheriff's officers to protect her while she moved out of her apartment. After the officers were called away on an emergency, Bowen showed up and, enraged that officers had been at the apartment, assaulted Kelly, trying to throw her off a second-story railing, biting her, and dragging her by her hair before she finally escaped to her car. As she drove away, Bowen aimed a sawed-off shotgun at the car and fired five times, blowing out a tire before Kelly escaped. Kelly reported the incident to the police and told Detective Curt Messerschmidt that Bowen was a gang member and likely was staying at his foster mother Augusta Millender's home. Through police records, Messerschmidt confirmed Bowen's gang activity and his ties to the Millender home. Messerschmidt also learned that Bowen had been arrested nine times for firearms offenses and six times for violent crimes, including three assaults involving firearms. Messerschmidt prepared a search warrant for the Millender home, listing as the object of the search all guns of any caliber and any evidence relating to gangs. Affidavits accompanying the search warrant application described Messerschmidt's 14 years' experience and his work in a specialized gang unit, and set forth his belief that probable cause supported the warrant based on the incident with Kelly and the information that Kelly had provided and he had verified. Two of Messerschmidt's superiors and a deputy district attorney reviewed and approved the warrant submissions. A magistrate issued the warrants, and a team of officers including Messerschmidt and his supervisor, Sergeant Lawrence, served the search warrant two days later at Millender's home. Bowen was not there, but officers seized Millender's (validly registered) shotgun, a letter addressed to Bowen, and a box of ammunition.

The Millenders sued Messerschmidt, Lawrence, and others, claiming that the search warrant violated their Fourth Amendment rights. The District Court concluded that the warrant was unconstitutionally overbroad because there was no need to search for all firearms when the incident with Kelly involved a very specific weapon: a sawed-off shotgun with a pistol grip. The court also found the warrant overbroad with respect to gang-related materials because there was no evidence that the crime against Kelly was gang-related. The court granted the Millenders summary judgment and denied the officers' qualified immunity claim. After a three-judge panel reversed, the Ninth Circuit en banc affirmed the District Court's denial of qualified immunity. The Ninth Circuit found no probable cause with respect to a broad search for firearms and gang-related materials and concluded that "a reasonable officer in the deputies' position would have been well aware of this deficiency."

The Court reversed. Noting that qualified immunity "gives government officials breathing room to make reasonable but mistaken judgments," and "protects all but the plainly incompetent or those who knowingly violate the law," the Court explained that its precedents required it to determine whether, despite the fact that a neutral magistrate issued a warrant authorizing the search, "it is obvious that no reasonably competent officer would have concluded that a warrant should issue." The majority concluded that, even if the warrant were overbroad for authorizing a search for all guns rather than the specific one involved in the crime against Kelly, it would not have been "entirely unreasonable" for an officer under the circumstances to conclude that Bowen owned other firearms and that their seizure was necessary to protect Kelly from further assaults. With respect to the search for gang-related material, the Court found that, based on Bowen's rage that Kelly "call[ed] the cops on [him]," a reasonable officer could have concluded that Bowen's attack was motivated by a desire to prevent Kelly from disclosing information about his gang activity to the police. Thus, the majority reasoned, it would not have been "entirely unreasonable" for an officer to believe that evidence regarding Bowen's gang affiliation would help in prosecuting him for the attack on Kelly.

Justice Breyer concurred separately, elaborating in one paragraph on why he believed the officers could reasonably have believed that probable cause supported the firearms search. Justice Kagan also authored a separate opinion, concurring in part and dissenting in part. She agreed that a reasonably competent police officer could have thought the warrant was valid in authorizing a search for all firearms and related items, but did not think a reasonable officer could have thought the warrant was valid insofar as it approved a search for evidence of gang membership. According to Kagan, "[m]embership in even the worst gang does not violate California law, so the officers could not search for gang paraphernalia just to establish Bowen's ties to the Crips. Instead, the police needed probable cause to believe that such items would provide evidence of an actual crime." But, according to Kagan, nothing in the warrant application supported a link between Bowen's gang membership and his assault on Kelly, which Messerschmidt's own affidavit characterized as a domestic dispute rather than a gang-related one.

Justice Sotomayor, joined by Justice Ginsburg, penned a stinging dissent. She characterized the search as a "fishing expedition" of the sort that the Framers aimed to guard against when they wrote the Fourth Amendment. She rejected the majority's contention that the officers could have believed that Bowen's attack on Kelly was founded in his fear that Kelly might reveal his gang activity, noting that Messerschmidt's deposition and Kelly's statements revealed that the "crime was domestic violence that was not gang related." With respect to the firearms search, Justice Sotomayor noted that "the Founders adopted the Fourth Amendment to protect against searches for evidence of unspecified crimes," and cited the officers' admissions that they had no reason to believe there would be any handguns in the Millender home at all, much less that such weapons had links to crimes. The dissenters also criticized the majority's suggestion that a police officer's "otherwise unreasonable conduct may be excused by the approval of a magistrate, or more disturbingly, another police officer" – a suggestion they found inconsistent with Malley v. Briggs (1986), which places the focus on the objective reasonableness of an officer's decision to submit a warrant application in the first place. She accused the majority of "encouraging sloppy police work and exacerbating the risk that searches will not comport with the requirements of the Fourth Amendment" by adopting a test in which "four wrongs apparently make a right."

That's all for now. We will be back with the latest from the Court as the daffodils bloom and the decisions start to heat up.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400