By Amy Howe
October 18, 2021
The Supreme Court Monday morning added two new cases, both involving Native Americans, on his record for that term. The judges also issued two unsigned decisions ruling, without pleading, that police officers are entitled to qualified immunity from prosecution accusing them of using excessive force. The judges, however, failed to act on several of the high-profile petitions they considered at their private conference last week.
Two new grants on Amerindian sovereignty
In Denezpi v. United States, the judges agreed to consider whether a prosecution in the Indian tort court can trigger the application of the Constitution double criminality clause. The Indian Offenses Court is a trial court that operates in areas where tribes have jurisdiction over Native Americans, but where there are no tribal courts to fully exercise that jurisdiction. The question is whether the tribunal constitutes a âfederal bodyâ so that a conviction passed by that tribunal precludes further prosecution in a federal district court for a crime arising out of the same incident. Merle Denezpi, a member of the Navajo tribe, pleaded guilty in the Indian Offenses Court to an assault charge in 2017. Six months later, a federal grand jury in the US District Court for the District of Colorado indicted Denezpi of an accusation of aggravated violence. sexual assault in Indian country based on the same underlying events. He was found guilty and sentenced to 30 years in prison.
Denezpi argues that his lawsuits in federal court violated the constitutional ban on dual criminality, which prohibits more than one prosecution for the “same offense.” According to a series of cases known as the doctrine of dual sovereignty, a crime under the laws of one sovereign is not the âsame offenseâ as a crime under the laws of a second sovereign. Denezpi argues that the doctrine of dual sovereignty does not apply because the Indian Offenses Court is a federal agency. The government, which views the court as a tribunal exercising the powers of a Native American tribe, says the doctrine of dual sovereignty allows for subsequent prosecutions. Judges will hear oral argument next year, with a ruling expected by the summer.
In Ysleta del Sur Pueblo c. Texas, judges will rule on a dispute over the application of state standards to tribal gambling operations on Native American lands. The case concerns a federal law that prohibits any gambling activity “prohibited by the laws of the State of Texas” on tribal lands. The question is whether the law prohibits any type of gambling that is prohibited by state law, or whether it goes further and also prohibits all state-regulated gambling. The Biden administration recommended that judges grant a review, which they did on Monday.
Two summary decisions on qualified immunity
The judges also issued two unsigned opinions in which they summarily – that is to say without a statement on the merits or oral argument – reversed the decisions of the federal courts of appeal, holding that the police were not entitled to qualified immunity in prosecution accusing them of using excessive force. Courts opinion in Rivas-Villegas v. Cortesluna was born in a 2016 phone call from a 12-year-old girl reporting that her mother’s boyfriend Ramon Cortesluna had a chainsaw and was going to attack them. When Cortesluna got out of the house and – after being ordered not to – put his hands down, a policeman shot him twice. Officer Daniel Rivas-Villegas pushed him to the ground and pressed his knee against Cortesluna’s back so a colleague could handcuff him.
Cortesluna filed a federal lawsuit against the officers, claiming they had used excessive force against him. A federal trial court concluded that the force used by the two officers was reasonable and that the officers were entitled to qualified immunity. On appeal, the United States Court of Appeals for the 9th Circuit upheld this finding with respect to the officer who fired the shots, but reversed Rivas-Villegas. Because it was clearly established, according to the majority of the panel, that it was excessive force for a police officer to rest his knee on the back of a suspect lying face down on the ground, strong enough to cause a injury, Rivas-Villegas was not entitled to qualified immunity.
Rivas-Villegas came to the Supreme Court last April, asking the judges to rule. In a six-page opinion, the judges overturned the decision of the 9th Circuit. They stressed that an official has the right to qualified immunity when his conduct does not violate clearly established rights, and that he would have been aware of these rights. Even though the cases brought before the courts of appeal can be characterized as “clearly established” law, the judges continued, the facts of the case on which the 9th Circuit relied were too different from the facts of this case to. that Rivas-Villegas was that his specific conduct was illegal.
Courts unsigned second opinion Monday – in City of Tahlequah v. Jump – arose out of a case filed by the estate of Dominic Rollice, a registered sex offender whom the police were trying to evict from his ex-wife’s home. When asked to drop a claw hammer, Rollice did not, prompting the police to shoot and kill him. A Federal District judge ruled that the officers’ use of force was reasonable and that officers were entitled to qualified immunity.
The United States Court of Appeals for the 10th Circuit overturned. He both ruled that the officers’ conduct created the situation that led to the shooting, such that their use of force was unconstitutional even though it was reasonable at the time it was employed. In addition, the court of appeal concluded, officers were not entitled to qualified immunity.
The city and officers came to the Supreme Court in May, and the judges on Monday overturned it. The judges explained that they did not need to decide whether the officers’ use of force was unconstitutional because the officers “clearly did not violate any clearly established law.” “None of the decisions” on which the 10th Circuit relied, the court stressed, “comes close to establishing that the conduct of the agents was illegal.”
There was no dissent noted from either of Monday’s summary reversals.
More news from Monday’s order list
At the suggestion of the Biden administration, judges remanded a case involving derivative citizenship – that is, citizenship for children born outside the United States whose parent becomes a U.S. citizen after birth – to lower courts for another review. The case arose after the petitioner, Abdulmalik Abdulla, who was born in Yemen to Yemeni parents and came to the United States as a lawful permanent resident, was convicted of fraud and sought to avoid deportation in claiming that he obtained US citizenship through his father, who became a US citizen when Abdulla was 10 years old. The immigration judge rejected his argument and the Board of Immigration Appeals dismissed his appeal on the grounds that it was too late. The United States Court of Appeals for the 3rd Circuit dismissed Abdulla’s claim on the merits. Under federal immigration laws in effect at the time, the appeals court ruled that Abdulla could only establish derivative citizenship if his father had become a US citizen after his parents separated – which he hadn’t done. Abdulla came to the Supreme Court in April, asking the judges to rule. The government urged judges to send the case back to the lower court for reconsideration because it had failed to review two decisions of the Immigration Appeal Board which dismissed the 3rd Circuit decision. interpretation of the law, and judges followed that suggestion on Monday.
Once again, the judges have failed to act on some of the most high-profile petitions that have been pending since the “long conference” of judges on September 27, including a quartet of cases challenging the authority of the Environmental Protection Agency to regulate greenhouse gases nationally and a challenge to a New York regulation that requires employers to fund abortions through their employee health plans. The judges also failed to respond to a request for a rehearing filed by Barronelle Stutzman, the Washington state florist, who argued that forcing her to create custom flower arrangements would violate her religious beliefs. Judges dismissed Stutzman’s request for review earlier this year, but she is asking for a reconsideration of that decision.
The next private judges’ conference is scheduled for Friday, October 29. Orders for this conference are expected to follow on Monday, November 1 at 9:30 a.m.
This article was originally published by Howe on the Court.