This Day in Liberal Judicial Activism—September 2

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2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review. The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively.

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In her dissent, Judge Johnnie B. Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule. She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) will reverse the Ninth Circuit in June 2004. Not a single justice will express agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion will take four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling. By a vote of 5 to 4, the Court will rule that Ring did not announce a watershed rule of criminal procedure.

2008—Federal district judge Beverly B. Martin rules that the federal statutory minimum sentence of 30 years for the crime of crossing a state line with intent to engage in a sexual act with a person under 12 years of age violated Kelly Brenton Farley’s Eighth Amendment right against cruel and unusual punishments “under the specific facts of his case.” (Emphasis in original.)

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In June 2010, a unanimous Eleventh Circuit panel, after presenting the “specific facts” of Farley’s case in excruciating detail, will reverse Martin’s ruling. The panel explains that the Supreme Court’s 1992 ruling in Harmelin v. Michigan, which rejected an Eighth Amendment challenge to a mandatory life sentence of life imprisonment for the crime of possessing 672 grams of cocaine, forecloses Martin’s conclusion.

But in the meantime President Obama will appoint Martin to a seat on the Eleventh Circuit.

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2014—In Wesby v. District of Columbia, a divided panel of the D.C. Circuit, in a majority opinion by Judge Cornelia Pillard, rules that raucous partygoers who were arrested for unlawful entry into a home that they had no legal right to enter were entitled to summary judgment on their claim that the officers lacked probable cause to arrest them and that the officers were not entitled to qualified immunity.

More than three years later, the Supreme Court will unanimously reverse Pillard. Justice Thomas’s opinion for the Court lambastes the D.C. Circuit panel for “fail[ing] to follow two basic and well-established principles of law.” First, the panel majority “viewed each fact in isolation, rather than as a factor in the totality of the circumstances.” Amazingly, the panel thus entirely dismissed from its assessment any fact that was “not sufficient standing alone to create probable cause.” (The quote is from Pillard’s opinion, with Thomas’s emphasis added.) Second, the panel majority “mistakenly believed that it could dismiss outright any circumstances that were ‘susceptible of innocent explanation,’” even if they did not dictate such an explanation.

As Thomas sums it up, a reasonable officer could easily have concluded that there was a “substantial chance” that the partygoers had illegally entered the house:

Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “common-sense conclusions about human behavior.” Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy. The officers could thus infer that the partygoers knew their party was not authorized.

The partygoers’ reaction to the officers gave them further reason to believe that the partygoers knew they lacked permission to be in the house. Many scattered at the sight of the uniformed officers. Two hid themselves, one in a closet and the other in a bathroom.…

The partygoers’ answers to the officers’ questions also suggested their guilty state of mind. When the officers asked who had given them permission to be there, the partygoers gave vague and implausible responses. They could not say who had invited them…. Additionally, some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor.

On the qualified-immunity question, Thomas sets forth the elementary and “straightforward analysis” that Pillard should have applied. The supposed rule that Pillard extracted from District of Columbia case law was not “settled law,” as it was not supported by the single decision she cited and was indeed undercut by decisions that the “officers cited … in their opening brief” but that Pillard’s opinion inexplicably “failed to mention.”

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