[co-author: Maria Aguilera – Summer Law Clerk]
The Supreme Court recently concluded the 2020-2021 term with its decision in the controversial voting rights case of Brnovich v. Democratic National Committee. Although Brnovich and other high-profile cases like Fulton v. City of Philadelphia (challenge to Catholic Social Services’ refusal to certify same-sex foster parents) and California v. Texas (challenge to the Affordable Care Act) have dominated the news coverage, the Court issued a series of decisions that have attracted little media attention but are of significance. Those decisions, which include two key Fourth Amendment rulings and the Court’s resolution of a circuit split involving the Computer Fraud and Abuse Act, are summarized below.
In the first of two important Fourth Amendment decisions, the Court held in Torres v. Madrid that a “seizure” occurs when officers apply physical force to a person with the intent to restrain, even if the person is not actually restrained. The case began when two officers approached Torres while searching for a wanted person. As the officers neared Torres, she got into the driver’s seat of a car and closed the door. One of the officers tried opening the door, but Torres hit the accelerator and started driving. Both officers fired at the moving car. Two of the shots hit Torres, but she continued driving. A short time later, she pulled into a parking lot. There, Torres stole another car and escaped to a hospital in a town nearly 75 miles away. Torres was eventually found and arrested.
She pleaded no contest to numerous charges. She subsequently sued the officers in U.S. District Court under Section 1983, claiming that they unreasonably seized her in violation of the Fourth Amendment. The District Court granted summary judgment for the officers on the basis that their conduct was not a Fourth Amendment seizure. The Tenth Circuit affirmed. The Supreme Court granted certiorari to resolve the question of whether the application of physical force to a person is a seizure, even if the force is insufficient to gain control of the person.
Writing for a 5-3 majority (Justice Barrett did not participate in the case), Chief Justice Roberts answered the question in favor of Torres and reversed the Tenth Circuit. In reaching its conclusion, the Court relied heavily on the common law’s distinction between arrests completed by the application of physical force and those completed by a show of authority. Pointing to language from California v. Hodari D., 499 U.S. 621 (1991), the Torres Court explained that at common law a person was not arrested by a show of authority unless and until there was submission to the assertion of authority. On the other hand, the common law considered it an arrest when an officer applied physical force to a person with the intent to restrain regardless of whether the physical force was sufficient to actually restrain. The Court further explained that early American courts endorsed the common law rule that the intentional “application of force—not control or custody” was sufficient to constitute an arrest. In keeping with that understanding, the Torres Court opined that a Fourth Amendment seizure occurs when an officer applies “physical force to the body of a person with intent to restrain…even if the person does not submit and is not subdued.”
Applying that rule in Torres, the Court concluded that Torres was seized for Fourth Amendment purposes when the officers’ bullets—fired with the intent to restrain—struck her. It was irrelevant to the seizure analysis that Torres continued to flee after being shot. The Court stressed that its decision was a narrow one that would not convert all incidental touches into seizures because such touches would not be accompanied by an intent to restrain. The Court also highlighted that “the Fourth Amendment does not recognize any continuing arrest during the period of fugitivity.” Thus, if an officer touches a person with the intent to restrain and the individual immediately escapes, only a brief seizure has occurred. The Court made clear, however, that “brief seizures are seizures all the same.” The case was remanded for consideration of the seizure’s reasonableness and the question of qualified immunity.
Justice Gorsuch dissented, and he was joined by Justices Thomas and Alito. The dissent charged the majority with misinterpreting the common law to arrive at a counterintuitive rule that allows a suspect to be “simultaneously seized and roaming at large.” In the dissent’s view, a Fourth Amendment seizure does not occur unless and until an officer applies physical force that is sufficient to actually restrain the suspect. Because Torres continued to flee after being shot, the dissenters would have affirmed the dismissal of her Fourth Amendment claim.
The Court’s other Fourth Amendment decision was Caniglia v. Strom. Unlike Torres v. Madrid, there was no disagreement among the justices as to the proper outcome. All nine justices agreed that the so-called “community caretaking doctrine” does not justify a warrantless intrusion into the home.
The case began when Caniglia put a gun on the table and asked his wife to shoot him during an argument. Caniglia’s wife left the home and stayed overnight at a hotel. The next morning, his wife asked the police to conduct a welfare check. She met officers at the home, where they found Caniglia on the porch. He confirmed his wife’s retelling of the night’s events, but he denied being suicidal. Nevertheless, the officers determined that Caniglia needed a psychiatric evaluation. Caniglia agreed to be evaluated based on the officers’ statement that they would not take his guns. After Caniglia left for the hospital, however, the officers warrantlessly entered the home and seized the guns. Caniglia later sued the officers in U.S. District Court under Section 1983, claiming that they violated his Fourth Amendment rights.
The District Court granted summary judgment for the officers on the basis that they lawfully entered the home without a warrant under the community caretaking doctrine. The First Circuit affirmed and pointed to Cady v. Dombrowski, 413 U.S. 433 (1973)—which applied the community caretaking doctrine in the context of car searches—as support for its holding. The Court granted certiorari to determine if the community caretaking doctrine extended to homes.
In an opinion by Justice Thomas, the Court rejected the First Circuit’s broad reading of Cady. According to Caniglia, the community caretaking doctrine announced in Cady does not authorize the warrantless entry into a home. Consistent with its longstanding practice of affording the home paramount Fourth Amendment protection, the Court explained that “[w]hat is reasonable for vehicles is different from what is reasonable for homes.” Thus, while Cady authorizes the police to undertake certain community caretaking functions involving cars, the doctrine is “not an open-ended license to perform [such functions] anywhere.”
Chief Justice Roberts, Justice Alito, and Justice Kavanaugh each issued separate concurrences. They emphasized that the Court’s opinion did not alter the ability of officers to enter homes under the exigent circumstances exception “to assist persons who are seriously injured or threatened with such injury.” And they pointed out that although the government was unable to meet the requirements of the exigent circumstances exception in Caniglia, the requirements would likely be met in many commonly occurring “welfare check” scenarios.
Habeas corpus aficionados will be interested in the Court’s decision in Edwards v. Vannoy. There, the Court refused to apply its 2020 decision in Ramos v. Louisiana retroactively to cases on federal collateral review. Even more importantly, the Court made explicit what had been implicit for years—a new rule of criminal procedure will never apply retroactively to cases on collateral review.
Last year in Ramos, the Court applied the Sixth Amendment right to a unanimous jury verdict to the states. In reaching that conclusion, the Court rejected its 1972 decision in Apodaca v. Oregon. The Ramos decision directly impacted the two states that still permitted non-unanimous verdicts—Louisiana and Oregon. The question left unanswered in Ramos was whether the decision applied retroactively to cases on collateral review. That’s the question the Court took up this term in Edwards.
Edwards faced multiple charges in Louisiana state court after going on a crime spree. His case proceeded to a jury trial. At the time of his trial, Louisiana law permitted convictions if 10 of 12 jurors voted guilty. The jury in Edwards’s case voted 11-1 to convict on some counts, and 10-2 on others. He was sentenced to life imprisonment, and his convictions were affirmed on direct appeal. Edwards then filed a habeas corpus petition in U.S. District Court. He argued that the non-unanimous verdicts violated the Sixth Amendment. The District Court rejected the argument based on Apodaca, and the Fifth Circuit refused to issue a certificate of appealability. Edwards sought certiorari in the Supreme Court, and his petition was pending when the Court decided Ramos. The Court subsequently granted Edwards’s petition to answer the retroactivity question.
The answer—provided via a 6-3 opinion by Justice Kavanaugh—was Ramos does not apply retroactively to cases on collateral review. The Court reached that conclusion by applying the familiar test set forth in Teague v. Lane. Under Teague, a new substantive rule applies to cases on collateral review. On the other hand, a new procedural rule does not apply to cases on collateral review unless the rule was a “watershed rule.” The Edwards Court first determined that the Ramos rule was a new procedural rule. Then, the Court turned to the issue of whether the Ramos rule was a watershed one.
According to Teague, watershed rules create basic due process rights and are “unlikely” to emerge. Indeed, in the three decades since Teague the Court had not found a single rule to be watershed. And it repeatedly expressed skepticism that it ever would. Yet the Court and the lower courts continued to look—until now. The Edwards Court declared that “[t]he purported watershed exception is moribund” and “retains no vitality.” Going forward, new substantive rules will apply retroactively to cases on collateral review and new procedural rules will not. Period. Thus, the Court refused to apply the Ramos rule to cases on collateral review because it was a new procedural rule. Edwards, therefore, was not entitled to relief.
Justice Kagan dissented, joined by Justices Breyer and Sotomayor. The dissenters would have retained Teague’s “watershed rule” exception and held that it applied to Ramos because “[i]f the right to a unanimous jury is so fundamental—if a verdict rendered by a divided jury is ‘no verdict at all’—then Thedrick Edwards should not spend the rest of his life behind bars over two jurors’ opposition.”
The Supreme Court in Terry v. United States addressed the application of the First Step Act of 2018 to crack offenders who were sentenced under 21 U.S.C. § 841(b)(1)(C) prior to the Fair Sentencing Act of 2010. Terry was the rare case where the United States and the defendant were on the same side of the issue—both arguing that the First Step Act applied to § 841(b)(1)(C) defendants like Terry. The Court, however, rejected that argument and agreed with the Court-appointed amicus curiae that Terry was not entitled to relief under the First Step Act.
Terry was convicted in 2008 of possessing crack with the intent to distribute. At that time, crack offenses involving 50 grams or more of crack were punishable by a 10-year mandatory minimum under § 841(b)(1)(A), crack offenses involving 5 grams or more of crack were punishable by a 5-year mandatory minimum under § 841(b)(1)(B), and crack offenses involving less than 5 grams did not carry a mandatory minimum under § 841(b)(1)(C). Terry’s offense involved 4 grams of crack and, therefore, he was not subject to a mandatory minimum under § 841(b)(1)(C). Terry qualified as a career offender under the Sentencing Guidelines, and he received a sentence of 188 months’ imprisonment.
Two years after Terry’s conviction, Congress passed the Fair Sentencing Act. The Act increased the amount of crack needed to trigger the mandatory minimum under § 841(b)(1)(A) from 50 to 280 grams and the mandatory minimum under § 841(b)(1)(B) from 5 to 28 grams. The Act made no modifications to § 841(b)(1)(C). Congress did not make the Fair Sentencing Act fully retroactive until 2018 when it passed the First Step Act. Under the First Step Act, crack offenders were eligible for a sentencing reduction if they previously received a sentence for “a violation of a Federal criminal statute, the statutory penalties for which were modified by” the Fair Sentencing Act. Terry sought resentencing under that language. The District Court denied Terry’s motion. The Eleventh Circuit affirmed on the basis that the Fair Sentencing Act modified the statutory penalties for §§ 841(b)(1)(A) and (b)(1)(B) offenses, but not § 841(b)(1)(C) offenses. The Supreme Court granted certiorari.
In an opinion authored by Justice Thomas and fully joined by seven other justices, the Terry Court endorsed the Eleventh Circuit’s reading of the statute. The Court explained that the Fair Sentencing Act modified the quantities necessary to trigger the 10-year mandatory minimum under § 841(b)(1)(A) and the 5-year mandatory minimum under § 841(b)(1)(B), but it did not modify any of the penalties under § 841(b)(1)(C). Because Terry was convicted and sentenced under § 841(b)(1)(C), his statutory punishment range was unaffected by the passage of the Fair Sentencing Act. Accordingly, he fell outside the category of offenders entitled to relief under the First Step Act.
Justice Sotomayor concurred in the judgment. She wrote separately to highlight the unfair result dictated by the First Step Act’s language. And she urged the political branches to “right this injustice.”
In Van Buren v. United States, the Supreme Court resolved a circuit split over the proper interpretation of the Computer Fraud and Abuse Act (CFAA). The Court adopted a narrow reading of the statute and concluded that it was not violated when the defendant breached his employer’s policy by accessing a work database for personal purposes. Van Buren marked the Court’s first extensive look at the CFAA. With its decision, the Court dealt yet another blow to the U.S. Department of Justice’s recent attempts to broadly construe criminal statutes in white collar cases.
The case began in 2015 when Van Buren, a police officer in Georgia, was asked by a friend to search a government database for information about a woman. As a police officer, Van Buren had access to the database for law enforcement purposes only. Nevertheless, Van Buren agreed to search the database for the friend in return for $5,000. After searching the database for information, Van Buren learned that his friend was an FBI informant, and the situation was a sting operation. The U.S. Attorney’s Office subsequently charged Van Buren with violating a provision of the CFAA that makes it a felony to “intentionally access[] a computer without authorization or exceed[] authorized access.” 18 U.S.C. § 1030(a)(2). The government claimed that Van Buren “exceed[ed] authorized access,” which the CFAA defines as “to access a computer with authorization and to use such access to obtain or alter information in the computer that the access is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6). More specifically, the government’s theory was that Van Buren “exceed[ed] authorized access” by using the government database for non-law enforcement purposes in violation of department policy.
The case proceeded to a jury trial, and Van Buren was convicted. The District Court sentenced him to 18 months’ imprisonment, and Van Buren appealed to the Eleventh Circuit. Contrary to several of its sister circuits, the Eleventh Circuit read the CFAA broadly and concluded that Van Buren violated the statute by accessing the database for an “inappropriate reason.” The Supreme Court granted certiorari to resolve the circuit split.
In an opinion authored by Justice Barrett, the Court rejected the Eleventh Circuit’s broad reading of the statute and reversed Van Buren’s conviction. The Court painstakingly parsed the words and history of the CFAA before concluding that an individual has “exceed[ed] authorized access” as defined in the statute “when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him.” An individual has not “exceed[ed] authorized access” by simply accessing a database he was allowed to access but then using the information in the database for an impermissible purpose. The Court buttressed its statutory interpretation argument by pointing out that the “Government’s interpretation of the statute would attach criminal penalties to a breathtaking amount of commonplace computer activity.” For example, the Court explained that many Americans use their work computers to send personal emails even though their employer has a policy prohibiting the use of work computers for personal purposes. According to the Court, Congress could not have intended to make all of those people federal felons.
Justice Thomas dissented, and he was joined by Chief Justice Roberts and Justice Alito. According to the dissenters, an ordinary reader would understand the phrase “exceed[ed] authorized access” to cover situations where a person accesses a database under circumstances that were clearly forbidden. Thus, the dissenters would have affirmed Van Buren’s conviction.
In Borden v. United States, the Supreme Court once again addressed a provision of the Armed Career Criminal Act (ACCA). This time, the Court was asked to decide whether a prior offense qualified as a “violent felony” under the ACCA’s elements clause when the offense had a mens rea of recklessness. Dealing another setback to the Government in the ACCA arena, the Court answered “no.”
Borden pleaded guilty to being a felon in possession of a firearm. The government argued that Borden had three prior “violent felony” convictions and, therefore, was subject to a 15-year mandatory minimum sentence under the ACCA. The ACCA’s definition of “violent felony” has several clauses, but the one at issue in Borden was the “elements clause.” That clause states that an offense is a violent felony if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” One of Borden’s three prior convictions was for reckless aggravated assault under Tennessee law. The Tennessee statute defined that crime as “’[r]ecklessly commit[ting] an assault’ and either ‘caus[ing] serious bodily injury to another’ or ‘us[ing] or display[ing] a deadly weapon.’” Over Borden’s objection, the District Court determined that the reckless aggravated assault conviction was an ACCA violent felony under the elements clause. Thus, Borden was sentenced to 15 years’ imprisonment. The Sixth Circuit affirmed, although some of its sister circuits had reached the opposite conclusion. The Supreme Court granted certiorari to resolve the circuit split.
The Court sided with Borden and reversed. Three justices joined a plurality opinion authored by Justice Kagan, and Justice Thomas provided the key fifth vote in an opinion concurring in the judgment only. The plurality opinion explained that when determining if a prior conviction qualifies as a violent felony for ACCA purposes, the courts are required to use the categorical approach. Under that approach, the actual conduct that led to the charge is irrelevant to the violent felony determination. Instead, the focus is on whether the elements of the offense when considered in the abstract involve the “use, attempted used, or threatened use of physical force against the person of another.”
Applying the categorical approach in this case, the plurality concluded that an offense that has a mens rea requirement of recklessness does not meet the definition of a violent felony under the elements clause. The plurality supported its conclusion by explaining that “[t]he phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target another individual. Reckless conduct is not aimed in that prescribed manner.” Thus, only crimes that have a mens rea requirement of purposeful or knowing conduct qualify as violent felonies for ACCA purposes. Because the Tennessee reckless aggravated assault statute under which Borden was previously convicted had a mens rea requirement of recklessness, the conviction did not count as a violent felony. Borden, therefore, was not properly sentenced to the 15-year mandatory minimum sentence required by the ACCA.
In an opinion concurring in the judgment only, Justice Thomas agreed that Borden’s reckless aggravated assault conviction did not meet the requirements of the elements clause. But, he believed Borden should have been deemed an armed career criminal under another provision of ACCA—the residual clause. The residual clause, however, had previously been declared unconstitutional in Johnson v. United States, 576 U.S. 591 (2015). Justice Thomas disagreed with Johnson and stated that it should be overruled. Because that issue was not before the Court in Borden, he agreed with the plurality’s conclusion that Borden was improperly sentenced under the ACCA.
Justice Kavanaugh authored a dissent that was joined by Chief Justice Roberts and Justices Alito and Barrett. The dissenters disagreed with the majority’s interpretation of the elements clause, which they pointed out contains no mens rea requirement on its face. And Justice Kavanaugh highlighted that the Court’s decision was likely to threaten public safety by reducing the sentences of violent offenders.
The Supreme Court’s decision in the consolidated cases of Greer & Gary v. United States resolved a circuit split involving plain error review and claims for relief based on Rehaif v. United States, 588 U.S. __ (2019).
Both Greer and Gary were convicted pre-Rehaif of possessing firearms after being convicted of a felony under 18 U.S.C. § 922(g)(1). Shortly after Greer and Gary were sentenced, the Court announced in Rehaif that § 922(g)(1) requires proof that the defendant knew he was a felon when he possessed the firearm. Thereafter, both Greer and Gary argued on appeal that their convictions should be reversed because the government failed to establish that they knew of their felon status. Because neither defendant had raised the argument in the district court, plain error review applied under Fed. R. Crim. P. 52. The Eleventh Circuit concluded that Greer had not met the plain error standard because there was not a “reasonable probability” that the outcome would have been different absent the Rehaif error. The Fourth Circuit saw things differently, concluding that Gary had met the plain error standard. The Supreme Court granted certiorari to resolve the conflict between the circuits.
In an 8-1 opinion by Justice Kavanaugh, the Court affirmed the Eleventh Circuit and reversed the Fourth Circuit. According to the Court, “a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon.” The Greer Court held that neither Greer nor Gary had made that showing. It explained that most defendants will “face[] an uphill climb in trying to satisfy the substantial rights prong of the plain-error test based on an argument that he did not know he was a felon [because]….[f]elony status is not simply the kind of thing that one forgets.”
The Court rejected the argument that plain error review should not apply because it would have been futile for defendants to raise the knowledge of status argument prior to Rehaif. Additionally, the Court disagreed with the Fourth Circuit’s conclusion that Rehaif error was a “structural error” that was not subject to plain error review. The Court explained that “the omission of a single element from jury instructions is not structural” error.
Justice Sotomayor concurred in part and dissented in part. She agreed that Greer had failed to carry his burden of proving plain error, but she would have remanded Gary’s case to the lower courts for further consideration of whether he could make the plain error showing.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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