Supreme Court Update: Mullenix v. Luna (14-1143) and Order List

November 9, 2015 Supreme Court Update

Greetings, Court fans!

Was it Jean-Baptiste Alphonse Karr or Jon Bon Jovi who remarked, "The more things change, the more they stay the same"? (They both did!) Over the last few terms, we've encountered a few steady themes in the Supreme Court's docket, among them: (1) The Court loves arguing about Obamacare (so much so, that Justice Scalia has taken to calling it "Scotuscare"); and (2) The Court really loves summarily reversing lower court denials of qualified immunity to police officers. These near-universal truths were validated once again over the last few days, as the Court announced Friday it would revisit the Affordable Care Act (for the fourth time in five years) and this morning issued a per curiam order summarily reversing a Fifth Circuit denial of qualified immunity to a police officer who shot a fleeing suspect four times. As Monsieur Alphonse Karr would say, "It's the same damn song with a different melody."

First, cert. On Friday, the Court granted certiorari in seven cases challenging the Obama administration's accommodation for non-profits that object to providing insurance coverage that includes certain forms of contraception. As you'll no-doubt recall from "Scotuscare II" (i.e., Burwell v. Hobby Lobby Stores (2014)), the ACA requires employers to provide "preventive care" for women, which the Department of Health and Human Services has interpreted to include no-cost contraceptive coverage (including forms of contraception that some regard as "abortifacients"). Hobby Lobby held that Congress could not force closely-held corporations with sincere religious objections to provide contraceptive care, in part because Congress had already identified a less restrictive means of achieving the goal of contraceptive access—through the accommodation granted to churches and other "religious employers." In the wake of Hobby Lobby, that accommodation was extended to other employers, both for-profit and nonprofit, with sincere religious objections to providing comprehensive contraceptive coverage. Scotuscare IV (likely to be captioned Zubik v. Burwell (No. 14-1418) after the first filed petition) is a challenge to that accommodation. The petitioners—religious schools and organizations, including the Little Sisters of the Poor—argue that the accommodation itself violates their rights under the Religious Freedom Restoration Act because it requires them to execute a form that renders them complicit in the provision of the contraceptive care that violates their sincerely held religious beliefs. Although a few of the petitions (including the Little Sisters') raised First Amendment arguments, the Court only granted cert on questions relating to RFRA. We look forward to unpacking Justice Kennedy's the Court's opinion for you sometime in June.

But contraception isn't the only new issue on the Court's docket. Since our last update, the Nine—or, more accurately, the Four—have granted cert in the following additional cases:

Simmons v. Himmelreich (15-109), which asks whether a final judgment in an action brought under Section 1346(b) dismissing the claim on the ground that relief is precluded by one of the FTCA's exceptions to liability bars a subsequent action by the claimant against the federal employees whose acts gave rise to the claim.

Husky Electronics v. Ritz (15-145), which asks whether the ‘actual fraud' bar to discharge under Section 523(a)(2)(A) of the Bankruptcy Code applies only when the debtor has made a false representation, or whether the bar also applies when the debtor has deliberately obtained money through a fraudulent-transfer scheme that was actually intended to cheat a creditor.

Nichols v. United States (15-5238), which asks whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided.

Voisine v. United States (14-10154), which asks (1) When a misdemeanor crime with the mens rea of recklessness qualifies as a ‘misdemeanor crime of domestic violence,' as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922 (g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the U.S. Constitution.

Hughes v. PPL Energyplus (14-614) which asks: (1) Whether, when a seller offers to build and sell wholesale power on a fixed-rate contract basis, the FPA field-preempts a state order directing retail utilities to enter into the contract; and (2) whether FERC's acceptance of an annual regional capacity auction preempts states from requiring retail utilities to contract at fixed rates with sellers who are willing to commit to sell into the auction on a long-term basis.

CPV Maryland v. PPL Energyplus (14-623) (consolidated with Hughes), which asks: (1) Where, as a result of a state-directed procurement, the contract price to build and operate a power plant is the developer's bid price, and may result in payments beyond what the developer earns selling the plant's capacity in the FERC-supervised auction, is the program "field preempted' as a State's attempt to set interstate wholesale rates?; and (2) Whether a state-directed contract to support construction of a power plant is "conflict preempted" because its long-term pricing structure provides incentives different from the incentives provided by prices generated in the FERC-supervised yearly capacity auction.

Halo Electronics v. Pulse Electronics (14-1513) and Stryker Corp. v. Zimmer (14-1520), which ask whether the federal circuit erred in applying a rigid, two-part test for enhancing patent-infringement damages under 35 U.S.C. § 284, notwithstanding that the Supreme Court last term rejected a similar two-part test for imposing attorney fees under the similarly worded 35 U.S.C. § 285.

Finally, this morning's orders included our second decision of the year, a rare 7-1-1 per curiam decision in Mullenix v. Luna (No. 14-1143), including a far-from-rare Supreme admonition: Lower courts must not define "clearly established law," for purposes of qualified immunity, at "a high level of generality."

On the night of March 23, 2010, as police officers from the Tulia, Texas, police department were attempting to serve a warrant upon him, Israel Leija, Jr., fled in his car and engaged police in a high-speed chase on Interstate 27. Two officers pursued Leija, while others, including Trooper Chaldrin Mullenix reported to three different locations along Interstate 27 to set up "spike strips." When Mullenix arrived at an overpass and found that other officers had already set up a spike strip beneath it, he decided to try another tactic: shooting at Leija's car in order to disable it. Though he had received no training in this tactic, he radioed his idea to the officers pursuing Leija, who responded "10-4." Mullenix then told a dispatcher to ask his supervisor whether shooting at the car was "worth doing." Before receiving the supervisor's response, he exited his vehicle, armed with his service rifle, and took a shooting position. According to Leija's estate, Mullenix could was still close enough to his radio to hear his supervisor respond, "Stand by" and "see if the spikes work first." Nevertheless—three minutes after taking up his position, and talking over how best to go about his plan with another officer—Mullenix fired six shots directly into the car's windshield, four of which struck Leija, killing him. Though the District Court and the Fifth Circuit (in a split decision) held that Mullenix was not entitled to summary-judgment on the ground of qualified immunity because there were genuine issue of material fact regarding whether Mullenix had acted reasonably under the circumstances, the Supreme Court summarily reversed, with per curiam opinion joined by eight justices.

The majority faulted the lower courts for defining the "clearly established law" at issue at a high level of generality—namely the rule that a police officer may not use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others. Under the circumstances of the case, the correct inquiry was whether there was a clearly established rule against an officer using deadly force in the particular situation that Mullenix confronted: "a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road." Although none of the radio transmissions described in the Court's opinion suggest that Mullenix was concerned about Leija firing on an officer, the Court nevertheless held that, given Leija's conduct, it could not conclude that only someone "plainly incompetent" or who "knowingly violates the law" would have perceived a sufficient threat and acted as Mullenix did.

Justice Scalia joined the judgment, but wrote separately to emphasize that he didn't consider what Mullenix had done to be "deadly force" in the first place. "Deadly force" occurs only when police "direct[] force sufficient to kill at the person of the desired arrestee." In other words, force that kills someone is only "deadly force" if it was intended to inflict harm on the body of the arrestee. Although the characterization made no difference here (or in Scott v. Harris (2007), the other case Scalia described), Scalia lamented that "it stacks the deck against the officer . . . to describe his action as the application of deadly force."

Justice Sotomayor penned a vigorous solo dissent, condemning Mullenix's "rogue conduct." As Sotomayor noted, there was no evidence below that any officer had expressed concern for his or her safety. They had all been trained in setting up spike strips and in avoiding the dangers associated with spike strips. In contrast, Mullenix had no training in shooting to disable a moving vehicle and had never even seen the tactic employed before. He also lacked permission to take the shots; instead, his supervisor had instructed him to "stand by" and "see if the spikes work first." Nevertheless, despite the fact that the spike strip was set up directly below him, Mullenix fired six shots directly at the vehicle and aimed in such a way that no shots hit the engine and four hit the driver. The majority erred, Sotomayor concluded, in defining the government's interest as whether to stop the car, not how to stop it. Because no reasonable officer could conclude that it is preferable to first shoot a car and then have it pass over spike strips, then to see if the spike strips alone work, Sotomayor concluded that the lower courts were correct in denying Mullenix qualified immunity at the summary-judgment stage. The majority, in contrast, has "sanction[ed] a ‘shoot first, think later' approach to policing, [which] renders the protections of the Fourth Amendment hollow."

That ought to bring you more or less up to speed. We look forward to bringing you more decisions—and possibly making more French writers turn in their graves—as the occasion arises.