Vinson & Elkins LLP

The U.S. Supreme Court’s new term begins with arguments on October 5, 2020, with the Court set to hear many important criminal law cases. Amidst the current national conversation about policing, the Justices will consider the requirements for bringing claims of excessive force during an arrest and the availability of causes of action against individual law enforcement officers. The Court will also consider what remedies are available in enforcement actions by the Federal Trade Commission, whether unauthorized use of a private computer may result in criminal liability, and the availability of evidence for use in impeachment hearings. But, before looking at specific cases on the docket, we pause to note just how different this term will look from those in the past.

It is impossible to overstate the impact that Justice Ruth Bader Ginsburg had on the Supreme Court, and on American law more broadly. Her absence on the bench will be monumental. She was a legal, intellectual, and cultural icon for millions of Americans, and was a beloved and admired figure among her colleagues and the bar. As with the passing of her good friend Justice Antonin Scalia in 2016, it is hard to imagine the Court without her.

Given that the Court will begin the October 2020 term with only eight sitting Justices, Court observers should prepare for some surprising outcomes, and possibly even some deadlocked decisions. In the 2016 term, the Court issued four opinions that were 4-4 split decisions, which meant that the Court of Appeals decisions under review were preserved. Given the significance of the issues coming before the Court, hopefully definitive outcomes will be reached and clear directions given to lower courts wrestling with thorny issues.

As a result of the ongoing COVID-19 pandemic, the Court will hear oral arguments by telephone during the October sitting and possibly beyond. This was also their practice during the end of last year’s term. And, as with the end of that term, the arguments will be livestreamed.

Torres v. Madrid, No. 19-292

Status: Argument on October 14, 2020

Issue: Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.

Commentary:

In the early morning of July 15, 2014, two New Mexico State Police officers visited an apartment complex to serve an arrest warrant. The officers came across Petitioner Roxanne Torres inside her SUV with the engine idling in the complex parking lot. As the officers approached, they startled Torres, who later testified that she believed they were carjackers. Torres threw the car into drive, and accelerated out of her parking space. The officers, believing she was trying to run them over, drew and discharged their firearms. Torres continued driving, even after being struck in the back by two bullets. She drove seventy-five miles to a hospital in a nearby town, where she was airlifted to another hospital and eventually arrested.

Torres sued the police officers, alleging she was seized using unreasonable force, in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. The question before the Court is whether Torres was actually “seized” by the police, which is a pre-condition to an excessive force claim, as she was able to evade police capture and drive to a neighboring town. The Tenth Circuit ruled that because Torres was able to elude police capture, she was not seized, and therefore could not bring an excessive force claim. The decision relied on recent Tenth Circuit precedent, which provides that “a seizure requires restraint of one’s freedom of movement,” Brooks v. Gaenzle, 614 F.3d 1213, 1219 (10th Cir. 2010) (internal quotation marks omitted), without which, there is no Fourth Amendment violation.

Torres appealed the Tenth Circuit’s ruling, arguing that the mere application of force, i.e., the two bullets that struck her, constitute seizure under the Fourth Amendment. In this argument, Torres is in good company – the Tenth Circuit rule is a minority rule followed only by one other appellate court, the D.C. Court of Appeals. Torres’s argument is echoed by amicus briefs from the U.S. Solicitor General’s Office and the ACLU, two entities who do not often see eye-to-eye of late. As they note, the Tenth Circuit’s rule elides a key distinction between the two ways a police officer can “seize” a person: 1) by a show of authority; or 2) by means of physical force. As set forth by Justice Scalia in California v. Hodari D., 499 U.S. 621 (1991), when attempting to seize a suspect using a “show of authority,” a seizure is not effected unless the suspect actually assents to the officer’s command, and is restrained. Thus, where a police officer yells, “halt,” but the suspect runs away, no seizure has occurred. When using physical force, however, a seizure occurs the moment physical force is applied to the subject, regardless of whether the suspect is eventually able to escape.

The Tenth Circuit rule collapses these two prongs into one, such that a suspect who evades capture will not have been seized, even if the arresting officer applied physical force. This approach is plainly inconsistent with Hodari D, even if Justice Scalia’s distinction between the two kinds of seizure was technically dicta. As noted, nearly all other appellate courts have followed the reasoning of Hodari D, and one should expect the Supreme Court to announce a rule that would bring the Tenth Circuit and D.C. Court of Appeals into alignment with them.

Brownback v. King, No. 19-546

Status: Argument on November 9, 2020

Issue: Whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1) of the Federal Tort Claims Act, on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s Federal Tort Claims Act claim.

Commentary: On July 18, 2014, two plainclothes law enforcement officers were searching for a man suspected of felony home invasion when they encountered Respondent James King. The officers questioned and detained King, who, because he did not know the men were law enforcement, fought back, believing he was being mugged. The officers put King in a headlock and repeatedly punched him in the face before taking him to the hospital and, eventually, arresting him. King was later charged and prosecuted for resisting arrest, but a jury found him not guilty of all charges. He then sued the United States pursuant to the Federal Tort Claims Act (one of the officers was an FBI agent) and sued the individual officers under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

The District Court dismissed the tort claim against the United States for lack of subject-matter jurisdiction because King failed to satisfy the elements required for a tort claim against the United States. Specifically, the District Court ruled that it did not have subject matter jurisdiction because King failed to allege a key element under the Federal Tort Claims Act, that the officers’ actions occurred “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 2672.

As to the Bivens claims, the Federal Tort Claims Act contains a “judgement bar” provision, which states that a judgment in an action for tort against the United States shall bar any claims against individual government employees based on the same conduct alleged in the tort claim. Petitioners argue that, having brought tort claims against the United States, King was barred from asserting Bivens claims against the individual officers who detained him.

The Sixth Circuit, notwithstanding certain Ninth Circuit precedent to the contrary, ruled that the Bivens claims were not barred. Because the tort claim against the United States was dismissed for lack of subject matter jurisdiction, the District Court never had any power to hear it, so it could not have preclusive effect or properly be considered a “judgment.”

Notwithstanding the contrary Ninth Circuit precedent, the solution in this case appears to be relatively straightforward. The Sixth Circuit followed a well-reasoned D.C. Circuit opinion in reaching its conclusion, and there is little reason to think the Supreme Court will disagree. At a time when policing methods and tactics are under increased scrutiny, an opinion clarifying the circumstances under which Bivens claims may be brought would hopefully provide welcome instruction and clarification for the nation’s district courts.

Van Buren v. United States, No. 19-783

Status: Argument on November 30, 2020

Issue: Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act (CFAA) if he accesses the same information for an improper purpose.

Commentary:

The V&E Report covered this case when the Court first agreed to review it. Petitioner Nathan Van Buren was a police sergeant in Georgia who was given access, in his capacity as a police officer, to a data communications network maintained by the state. The network allowed government officials with authorization to login and access a national crime database and run criminal background checks.

As a police officer, Van Buren became acquainted with an individual named Andrew Albo, who was involved in a series of criminal incidents that were handled by Van Buren. Apparently believing that their relationship could be mutually beneficial, Van Buren approached Albo and asked for a loan of $15,000. Albo responded by giving Van Buren $5000, and asking him to find out if a woman he was seeing was actually an undercover police officer. Van Buren agreed, and used his access to the crime database to run a background check on the woman. Unbeknownst to Van Buren, Albo was secretly working with the FBI, who had set up a sting operation to target police corruption. Van Buren was arrested and charged under the CFAA, 18 U.S.C. § 1030, which makes it a criminal offense when someone “accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from the computer. Id. §1030(a)(2)(C). He was tried and convicted, and appealed his conviction.

At issue is whether Van Buren “exceed[ed] authorized access” when he ran a background check on the woman. There is no dispute that Van Buren was authorized, as a police sergeant, to access the computer database. But did he, when accessing the system for a personal, corrupt reason, violate the law by exceeding authorized access?

The United States argues that he did, citing the statute’s definition of “exceeds authorized access” as using a computer one is entitled to use “to obtain or alter information in the computer that the accesser is not entitled so to obtain.” Id. § 1030(e)(6). So, the United States argues, since Van Buren was not accessing the woman’s information as a part of his job, but instead as part of a quid pro quo scheme, he was not entitled to obtain it.

Van Buren responds that the government reads CFAA too broadly, and that the statute’s purpose was to criminalize computer hacking by outside, unauthorized persons. He argues that once a person is authorized to access a computer, CFAA no longer applies to the conduct. This argument is largely grounded in a public policy rationale. Under the government’s reading of “exceeds authorized access,” liability is triggered anytime a person uses an authorized device for unauthorized reasons. But what defines unauthorized would vary according to the individual policies that direct the computer user, not the CFAA. So, for example, a person checking stock quotes or fantasy football standings from a work computer, where such activities are prohibited by the employer, could conceivably incur criminal liability. The United States argues that these examples are merely “unfounded conjecture,” and would be limited by prosecutorial discretion. But it is difficult to see a limiting principle for the United States’ argument, and the United States concedes that the Supreme Court “cannot construe a criminal statute on the assumption that the Government will use it responsibly.” Marinello v. United States, 138 S. Ct. 1101, 1109 (2018). The Court has, in recent years, tended to privilege individual liberty interests above those in favor of stronger enforcement of criminal penalties. It is hard to see the Court reversing that trend here, suggesting Van Buren is likely to prevail.

Edwards v. Vannoy, No. 19-5807

Status: Argument on November 30, 2020

Issue: Whether the Supreme Court’s decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review.

Commentary:

Last term in Ramos v. Louisiana, the Court determined that non-unanimous jury verdicts finding a criminal defendant guilty were unconstitutional under the Sixth and Fourteenth Amendments. The Court must now determine whether Ramos applies retroactively on collateral review to prior jury verdicts that were non-unanimous.

Thedrick Edwards was arrested in Louisiana in 2006 and charged with kidnapping, rape, and robbery. At the time, Louisiana was one of only two states (the other being Oregon) that allowed a criminal defendant to be convicted where the jury verdict was not unanimous. Edwards was tried and convicted, and sentenced to life in prison. However, the jury’s verdict was not unanimous – a single juror voted to acquit. At the time, however, Louisiana only required ten jurors to vote guilty for a guilty verdict so Edwards was convicted over the dissenting juror’s objections.

While Edwards’s case was awaiting appeal in his petition for habeas corpus, the Supreme Court decided Ramos v. Louisiana. Edwards now argues that his conviction must be overturned, because it was based on a nonunanimous jury verdict, as was ruled unconstitutional by Ramos.

A key question in determining whether Ramos will apply retroactively is whether the rule it announced, that guilty verdicts in criminal trials must be unanimous, rearticulated an old rule or created an entirely new rule. Generally, a new rule articulated by the Court will not apply retroactively on collateral review, given the interest of the state in “leaving concluded litigation in a state of repose.” Teague v. Lane, 489 U.S. 288 (1989). There is an exception, though, where the new rule is so significant that it “alter[s] our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.” Mackey v. United States, 401 U.S. 667, 693 (1971). In such cases, these so-called “watershed” new rules are so important that they justify retroactive application.

Edwards argues that Apodaca v. Oregon, the case Ramos effectively overruled, was such an aberration that the Court did not announce a new rule in overturning it. Apodaca was a split opinion, the result of which was that federal jury trials required unanimous guilty verdicts but state jury trials could have non-unanimous trials. Edwards notes the strange posture and outcome of Apodaca, and argues that the basis for overruling it lies in the Constitution, the oldest rule we have. Alternatively, Edwards argues that the principal of unanimous jury trials is so important and foundational to justice, that it affects the “bedrock procedural elements” of the jury system.

At the time of this post’s writing, Louisiana had not filed its brief. It will likely follow some of the arguments laid out in Justice Alito’s Ramos dissent to the extent they support the notion that Ramos does not meet the Teague standard for retroactivity.

Department of Justice v. House Committee on the Judiciary, No. 19-1328

Status: Argument on December 2, 2020

Issue: Whether an impeachment trial before a legislative body is a “judicial proceeding” under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure.

Commentary:

In the latest salvo between Democrats in the House of Representatives and the Trump White House, the Court has been asked to determine whether grand jury and other confidential materials from the Mueller Report must be turned over to the House Judiciary Committee in connection with the impeachment proceedings.

In 2017, Robert Mueller was appointed by Deputy U.S. Attorney General Rod Rosenstein to investigate whether there were links between Russian interference in the 2016 presidential election and President Trump’s campaign. In connection with this investigation, a federal grand jury issued more than 2,800 subpoenas for information, and nearly 80 witnesses testified before the grand jury. Mueller’s team also interviewed approximately 500 witnesses. On March 22, 2019, Muller submitted his confidential two volume report to the attorney general. The first volume discussed whether the Trump campaign coordinated with Russia to interfere in the election. The second concerned whether the White House had obstructed justice in the course of the Mueller investigation. In April 2019, the attorney general released a public version of the Mueller Report, which redacted grand jury materials and other confidential information that the AG determined could compromise ongoing intelligence or law enforcement operations.

In July 2019, as part of the investigation that would eventually lead to the House of Representatives adopting two articles of impeachment against President Trump in December 2019, the House Judiciary Committee filed an application for the release of certain grand jury materials that were redacted from Mueller’s Report. The Department of Justice opposed this request, citing Federal Rule of Criminal Procedure 6(e), which states that attorneys for the government “must not disclose a matter occurring before the grand jury.” Fed. R. Crim. P. 6(e)(2)(B). But the Judiciary Committee argued that the request fell within an exception, allowing disclosure “preliminarily to or in connection with a judicial proceeding.” Fed. R. Crim. P. 6(e)(3)(E)(i).

The question, then, is whether the House impeachment proceedings are a “judicial proceeding.” The D.C. Circuit ruled that they are. Indeed, in prior impeachment hearings for two presidents and three judges, grand jury materials were disclosed to Congress by district courts. Article I of the Constitution gives the Senate the power to “try all Impeachments” and states that “when the President of the United States is tried, the Chief Justice shall preside.” Broad descriptions of trial proceedings, presided over by Judges or Justices, generally fit the definition of judicial proceedings. But the Supreme Court has never ruled on this issue.

In May 2020, the Supreme Court did grant the DOJ’s request to keep the materials confidential pending the Court’s decision on the merits. At present, the Court is scheduled to hear oral argument on December 2, nearly a month after the election. Whatever lies in the grand jury materials and regardless of what the Court ultimately decides, the House Judiciary Committee won’t be able to see the materials before the election.

Federal Trade Commission v. Credit Bureau Center, LLC, No. 19-508 and AMG Capital Management, LLC v. Federal Trade Commission, No. 19-508

Status: Argument date to be determined.

Issue: Whether Section 13(b) of the Federal Trade Commission Act (FTCA), by authorizing “injunction[s],” also authorizes the Federal Trade Commission (FTC) to demand monetary relief such as restitution – and if so, the scope of the limits or requirements for such relief.

Commentary:

In the above consolidated cases, the Court is called upon to settle a circuit split regarding whether a federal statute allowing the FTC to issue injunctions also allows it to impose monetary penalties, such as restitution. The V&E Report covered this case when the Court first agreed to review it.

In Federal Trade Commission v. Credit Bureau Center, LLC, Respondent Credit Bureau Center was an internet company that advertised free credit scores to anyone who signed up for an account. After customers signed up to see their credit scores, however, they were automatically enrolled in a subscription service that charged a monthly fee for continued credit monitoring. Numerous customers complained to the company, and some alerted the FTC, which sued Credit Bureau Center for violations of the FTCA and other federal statutes. The FTC prevailed, and a court issued a permanent injunction barring Credit Bureau Center from various online and marketing activities, as well as ordering $5,260,671.36 in restitution.

In AMG Capital Management, LLC v. Federal Trade Commission, Petitioner AMG Capital Management operated a number of payday loan schemes, offering short term, high interest loans to financially insecure customers. The FTC sued AMG Capital Management, arguing that the terms promised were different from those actually enforced. The court issued a permanent injunction and monetary restitution for the money illegally obtained by AMG Capital Management.

In both cases, the defendants appealed the district court’s decisions, and asked the courts of appeals to find that the FTCA does not allow monetary penalties. Section 13(b) of the FTCA provides that “United States district courts are empowered to grant mandatory injunctions and such other and further equitable relief as they deem appropriate in the enforcement of such final orders of the Commission.” Under both Seventh Circuit and Ninth Circuit precedent, district courts have been allowed to impose monetary penalties under this subsection because such penalties have been deemed to be allowable as “further equitable relief.” In AMG Capital Management, the Ninth Circuit expressed sympathy for AMG Capital Management’s argument, but ultimately declined to overturn its precedent, noting that the “argument has some force, but it is foreclosed by [Ninth Circuit] precedent.”

The Seventh Circuit, on the other hand, closely examined the statutory text and concluded that Section 13(b) does not offer monetary relief, thereby overruling three decades of precedent. As the Seventh Circuit first noted, Section 13(b) plainly does not say anything about the imposition of monetary sanctions. Next, the Seventh Circuit examined other sections of the FTCA, which do allow for monetary relief, and which spell out the procedure the FTC must follow to obtain it. The absence of similar provisions in Section 13(b), the Seventh Circuit reasoned, meant that Congress intentionally excluded monetary sanctions as a remedy for violations of Section 13(b). Having determined that the text did not allow for monetary sanctions, the Seventh Circuit overturned a thirty-year-old precedent that had read such a remedy into the text.

Given the Ninth Circuit’s ambivalence and the Seventh Circuit’s clear opinion, it seems likely the Supreme Court would follow the Seventh Circuit’s lead. The Court has increasingly followed a textualist approach to statutory cases in recent years, and will likely accept the Seventh Circuit’s invitation to do so here.

The V&E Report will monitor these cases and others that will likely be added to this year’s term. We’ll let you know how and why the Court rules on these important matters.

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