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Petitions of the week ByAndrew Hamm on Oct 30, 2021 at 3:07 pm

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether federal prosecutors or defendants have the burden of proving their status as a Native American or not for purposes of criminal jurisdiction, and three conditional cross-petitions over Texas abortion ban.

Federal law generally provides that tribal courts, not federal or state courts, have jurisdiction to prosecute minor crimes committed by one Indian against the person or property of another Indian on tribal land. In Haggerty v. United States, federal authorities charged Justin Haggerty with committing malicious destruction of tribal property on the Tigua Indian Reservation in Texas. In the U.S. Court of Appeals for the 5th Circuit, Haggerty maintained that the prosecution had failed in its burden of proof because it never introduced any evidence that he was not Native American. The 5th Circuit rejected Haggertys contention, ruling that the burden was Haggertys to have raised a defense that he is Native American. Arguing that the circuits are split on this question, Haggerty asks the justices for review.

On Monday, the Supreme Court will hear oral arguments in two cases arising out of Texas ban on nearly all abortions after the sixth week of pregnancy, Whole Womans Health v. Jackson and United States v. Texas. The cases address the laws private-enforcement structure, which deputizes private individuals to bring lawsuits to enforce the ban, and whether the federal government has the right to sue in federal court to block the laws enforcement. As Amy Howe reported for SCOTUSblog, the justices orders on oral arguments suggest that they will not use these cases to directly weigh in on whether the law violates the constitutional right to abortion. Nonetheless, three conditional cross-petitions in Whole Womans Health ask the justices to address directly the prevailing abortion precedents, Roe v. Wade,Planned Parenthood v. Casey, and 2016s Whole Womans Health v. Hellerstedt. The cross-petitions are Dickson v. Whole Womans Health, Carlton v. Whole Womans Health, and Clarkston v. Whole Womans Health.

These and otherpetitions of the weekare below:

Shoop v. Twyford21-511Issues: (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in28 U.S.C. 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.

Haggerty v. United States21-516Issues: (1) Whether the interracial nature of a minor offense in Indian Country is an element of18 U.S.C. 1152, rather than an affirmative defense, and thus must be both pled and proved by the prosecution; and (2) whether the government must plead and prove the interracial nature of a minor offense in Indian Country to establish federal subject matter jurisdiction under 18 U.S.C. 1152.

Simko v. United States Steel Corporation21-522Issue: Whether, or under what circumstances, a claim that an employer unlawfully retaliated against an employee for filing a charge of discrimination with the Equal Employment Opportunity Commission under the remedial structure of Title VII may be addressed in an ensuing civil action, if the employee did not file a second formal administrative charge specifically alleging the retaliation.

Martin v. Castro21-533Issues: (1) Whether, when a law enforcement officer reasonably deploys a police K9 to restrain a fleeing suspect known to have a history of violent crime and believed to be in possession of a deadly weapon and under the influence of an illegal stimulant, the Fourth Amendment is violated when the K9s handler commands the K9 to release the suspect within seconds after the suspect is handcuffed and ceases resisting arrest; (2) whether the U.S. Court of Appeals for the 9th Circuit erred when it failed to consider the totality of the circumstances in assessing the reasonableness of force used to restrain a suspect with a known history of violent crime who is actively resisting arrest and is believed to be in possession of a deadly weapon and under the influence of an illegal stimulant; and (3) whether the 9th Circuit violatedCity and County of San Francisco v. Sheehanand other binding precedent when it denied a police officer qualified immunity by defining clearly established law at too high a level of generality.

Reagle v. Lewis21-538Issue: Whether, after Roderick Lewiss counsel failed at sentencing to say anything more than that Lewis would speak on his own behalf, the U.S. Court of Appeals for the 7th Circuit misapplied28 U.S.C. 2254in holding that the failure to applyUnited States v. Cronic in which the Supreme Court suggested that, thoughStrickland v. Washingtonrequires an ineffective-assistance claimant to prove both deficient performance and prejudice, some circumstances. . . are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified violated clearly established Federal law, as determined by the Supreme Court of the United States.

Dickson v. Whole Womans Health21-582Issues: (1) Whether the Supreme Court should overruleRoe v. WadeandPlanned Parenthood of Southeastern Pa. v. Casey; and (2) whether the Supreme Court should overruleWhole Womans Health v. Hellerstedt, which refused to enforce an explicit severability requirement in a state abortion statute.

Carlton v. Whole Womans Health21-583Issue: Whether the Supreme Court should overruleRoe v. WadeandPlanned Parenthood of Southeastern Pa. v. Casey.

Clarkston v. Whole Womans Health21-587Issue: Whether the Supreme Court should overruleRoe v. WadeandPlanned Parenthood of Southeastern Pa. v. Casey.

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Defendants' Native American status and more abortion petitions - SCOTUSblog

Jaleel Stallings, a man found not guilty on all charges of shooting at Minneapolis police during the unrest that followed George Floyd's murder last year, filed a federal lawsuit Thursday against the city and several of its officers, alleging the use of excessive force and several constitutional rights violations.

Stallings' attorney, Eric Rice, released extensive body camera footage earlier this month that showed Stallings, who had a permit to carry a firearm in public, returning fire at police in self-defense after they fired a marking round at him without warning from an unmarked van on May 30, 2020. Stallings immediately surrendered upon learning they were police officers but was assaulted while on the ground, the video showed. In the footage released by Rice, Lt. Johnny Mercil can be heard saying he believed a group of protesters were white "because there's not looting and fires," while Cmdr. Bruce Folkens referenced "hunting people" during the unrest. Both have since left the department.

Filed in the U.S. District Court of Minnesota, the lawsuit alleges that 19 Minneapolis officers violated Stallings' Fourth Amendment rights by using excessive force and his First Amendment rights by using force to intimidate and deter him from protesting police brutality and racism. The suit alleges that officers also violated his 14th Amendment right to due process by conducting a "recklessly-flawed" investigation after the incident, and, lastly, his 14th Amendment right to equal protection by targeting Black civilians with force and false accusations of felonious conduct.

"These violations are part of a pattern of constitutional violations by the MPD," the complaint said. "Customs causing constitutional violations were long-known by the MPD and the community at-large before this incident. In fact, it was this historical pattern of constitutional violations and lack of accountability or deterrence that led the community to protest with such intensity after the murder of George Floyd."

The complaint names 14 officers as defendants. An additional five are also listed but referred to as John Does because they have yet to be identified, according to the complaint.

"During Jaleel's criminal matter, we did not receive any information that those officers were being investigated or held accountable," Rice said. "We hope that this civil lawsuit is one way in which there can be oversight and accountability for anything that the officers did improperly."

Following the May 30 incident, Stallings was charged with second-degree attempted murder, first-degree assault, second-degree assault and second-degree riot, among other counts. He rejected a plea deal that included a nearly 13-year prison term and instead took the case to trial in June. He was fully acquitted, which was first reported by the Minnesota Reformer.

Now, according to the lawsuit, Stallings seeks redress, including compensation and punitive damages to prevent future violations.

The Police Department declined to comment, citing the active litigation.

"The City Attorney's Office is still reviewing the lawsuit and has no comment at this time," city spokeswoman Sarah McKenzie said.

The beating left Stallings with several injuries, the lawsuit said: a fractured eye socket, bruising, trauma, paranoia and anxiety. He had also been shot in the chest with a marking round, which resulted in labored breathing, the suit said.

When he was transported to the hospital, "Stallings was not permitted to privately discuss the incident or his injuries with medical personnel," the complaint said. "Officers stood nearby and listened to everything."

The lawsuit alleges that the involved officers provided false, misleading statements to justify their use of force and concealed evidence to implicate Stallings.

Those false statements and the narrative that Stallings "attempted to kill officers has continued even after his acquittal," the lawsuit said.

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Man cleared of unknowingly firing at Minneapolis officers in self-defense files lawsuit alleging force and constitutional rights violations -...

Earlier this month and last month, the National Security Commission on Artificial Intelligence, the Reiss Center on Law and Security at NYU School of Law, the Berkman Klein Center for Internet & Society at Harvard University, and Just Security convened a three-part virtual symposium of experts to debate critical legal issues around the growing use and influence of artificial intelligence (AI). Titled Security, Privacy and Innovation: Reshaping Law for the AI Era, the symposium comprised three sessions convening leading scholars, practitioners, and thought leaders on some of the most difficult and urgent facets of the AI era. In case you missed the event, this recap describes highlights from each panel. Further details of the symposium can be accessed here. These descriptions and observations are our own and are not necessarily shared by each of the panelists.

Jonathan Zittrain, Faculty Director of the Berkman Klein Center for Internet & Society, moderated the first panel. The panel featured Olufunmilayo Arewa, Murray H. Shusterman Professor of Transactional and Business Law at Temple Universitys Beasley School of Law; Chinmayi Arun, Resident Fellow at Yale Law School; Ronald Deibert, Director of the Citizen Lab at University of Torontos Munk School of Global Affairs & Public Policy; and Ambassador Eileen Donahoe, Executive Director of Stanford Universitys Global Digital Policy Incubator.

The panelists focused on multiple, interconnected areas of concern, including the quick development of AI technologies paired with the inapt legal safeguards of the past, the use of AI technologies to perpetuate human rights abuses, and the global nature of these issues. As Deibert put it, we all live in this new kind of global ether of data that is connected to but separate from us. Each panelist drew out unique angles of the potential harms of AI. Arewa highlighted the potential for abuse due to concentration of power in technology companies like Facebook and Google. Arun spoke about how datafication of people can lead to erasure of certain groups, giving the example of how datafying people as male or female erases those who do not identify along the gender binary. She also spoke about how, when dealing with cross border questions, international law offers us powerful norm setting, but largely does not create accountability for powerful technology companies.

Ambassador Donahoe narrowed in on AI technologies deployed by authoritarian regimes to shape citizen motivation and behavior, like Chinas social credit system. She noted that such technologies not only violate privacy and civil liberties, but they really undermine human agency and go to the heart of human dignity. Her biggest concern was the threat of digital authoritarianism as a governance model, especially as it spreads across the world and competes with democracy.

The panelists also provided guidance on how civil society and governments in democratic states can tackle the harmful effects of AI on multiple levels. In the international arena, Ambassador Donahoe argued that on the democratic side, we have basically failed to provide a compelling alternative to the digital authoritarian regime. She laid out a three-part geopolitical framework, which she subsequently elaborated on here. The three components were: develop a democratic governance model for digital society, invest in values-based international leadership, and win the technological innovation battle to keep power in democratic states. Deibert suggested building momentum in countering abusive despotism as a service practices by enhancing domestic oversight of surveillance companies and technologies, starting with agencies such as the U.S. National Security Agency (NSA) and Canadas Communications Security Establishment (CSE).

Arewa articulated a framework for regulating private actors based on both transparency and liability, but she also acknowledged the obstacle of regulatory capture, even in countries that respected the rule of law. On the transparency side, she gave the example of how Apples app tracking transparency led to many fewer users opting to be tracked. On the liability side, she pointed out that although Mark Zuckerberg relies on the liability limitations embedded in corporate law, that may not be appropriate for someone like him who serves as a companys controlling shareholder and CEO and also sits on the board.

Arun favored an approach that followed computer scientists research to understand how accountability can be hardwired into the building of these systems. In addition to anticipating harms, she advocated for monitoring each use of AI and creating mechanisms to walk back any harmful effects.

The panelists concluded by articulating hopes for a future where democratic values are infused into AI technology.

Julie Owono, the Executive Director of Internet Sans Frontires (Internet Without Borders), a member of the Facebook Oversight Board who is also affiliated with the Berkman Klein Center on Internet & Society, moderated the second panel. The panel featured Glenn Gerstell, a senior advisor on international security with the Center for Strategic & International Studies and the former general counsel for NSA; Aziz Z. Huq, the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School; and Riana Pfefferkorn, a Research Scholar at the Stanford Internet Observatory.

The conversation focused broadly on how the American constitutional system is challenged by many emergent problems with the use, development, and deployment of AI. As a starting point, Gerstell described AI tools as critical, pervasive, and problematic.

The panelists discussed how foreign adversaries like China have invested heavily in AI technologies to closely surveil their own populaces, gain a competitive edge in the global marketplace, and quickly sort through intelligence. In order to keep up with technological innovation and protect important national security interests, the United States must continue to develop and rely on AI. But the panelists emphasized that existing legal parameters do not sufficiently protect the privacy interests of everyday Americans or provide adequate protections and remedies for bad actions by governments or private companies.

As for the existing legal structure, the panelists focused on the limited protections offered by the Fourth and Fourteenth Amendments. They agreed that the Fourth Amendment provides a limited guardrail around the use of AI technologies by national security institutions and acknowledged that important questions still exist about whether AI can give rise to probable cause for a warrant. Gerstell pointed out that the most relevant case about the limits of government surveillance under the Fourth Amendment, Carpenter v. United States, provides little on-point guidance about the limits on data the government can collect.

Huq asserted that the Fourteenth Amendment was unable to address the most pressing concerns about government use of AI, such as disproportionately high false positives that negatively impact racial minorities and women. While the Equal Protection Clause prohibits governmental actions based on racially discriminatory intent, AI technologies, he argued, are rarely designed with the intent to discriminate; instead they incorporate biases through negligence or inattention.

Pfefferkorn further explained the numerous challenges posed by AI in a criminal justice context, where prosecutors may be unable to fully explain AI technologies used to collect or analyze evidence against defendants. This may be because the technology is opaque even to its inventors, or because contractual or national security obligations prevent the vendors from disclosing how the tools operate.

The panelists further pointed out that the threat posed by the use of AI comes not only from the government but from companies that are not bound by constitutional limitations. The power and value of AI technologies require gathering vast amounts of data about individuals, and this data often comes from these companies consumers. Accordingly, the panelists contended that a rights-focused framework is inadequate in the context of the threats posed by AI.

The panelists stressed the urgent need for legislation that more clearly delineates privacy rights for Americans, defines who can collect their data in public spaces and what that data can be used for, and bans some AI applications in particularly sensitive areas. Pfefferkorn pointed out that privacy legislation and doctrine from the 1960s and 1970s are far behind the current technological capabilities today, and that changing technology may correspond to a change in the definition of reasonable expectation of privacy. Huq advocated for a federal agency similar to the FDA or CDC with administrative authority to regulate the AI industry; however, he cautioned that political will for such an agency does not exist.

Ruth Okediji, Jeremiah Smith, Jr. Professor of Law at Harvard Law School, moderated the first panel, which featured Paul Michel, former Chief Judge of the Federal Circuit; Andrei Iancu, former Undersecretary of Commerce for Intellectual Property and former Director of the U.S. Patent and Trademark Office (USPTO); and David Jones, Executive Director of the High Tech Inventors Alliance.

Okediji introduced the topic of patent eligibility reform, and noted the National Security Commission on Artificial Intelligences final report was released in March 2021. That report includes a non-exhaustive list of 10 intellectual property-related considerations for the United States to assess as part of its national security strategy. One of those considerations is patent eligibility reform.

Judge Michel provided critical background on the issue. Patent eligibility is one of the threshold requirements for a patent to be granted or for an issued patent to be upheld when challenged in litigation. Under Section 101 of the Patent Act, four broad categories of inventions are patent-eligible: processes, machines, manufactures, and compositions of matter. According to Judge Michel, the Supreme Courts decisions in Mayo v. Prometheus (2012) and Alice Corp. v. CLS Bank International (2014) changed the patent eligibility landscape. These decisions expanded the scope of three judicial exceptions laws of nature, products or phenomena of nature, and abstract ideas to the four statutory patent-eligible categories mentioned above. Judge Michel opined that, prior to 2012, the U.S. patent eligibility regime was clear and consistent, and challenges to eligibility were rare, but eligibility challenges have become commonplace since Mayo and Alice. Meanwhile, 27 European countries and many Asian countries have significantly broadened their patent eligibility criteria, and hundreds of patents deemed ineligible in the United States have been deemed eligible elsewhere. Judge Michel concluded his remarks by calling for congressional reform of the U.S. patent eligibility regime. Reform efforts in 2019 stalled, but some discussions on Capitol Hill are currently underway again.

Iancu and Jones then engaged in a spirited debate. Iancu generally agreed with Judge Michel that the law of patent eligibility is in a state of unpredictability. He argued that the private sector will require greater clarity and certainty from the patent system in order to feel incentivized to innovate and invest in new, disruptive technologies, such as AI. AI-related inventions have often been rejected by the current patent regime, which frequently views them as mathematical formulas and abstract ideas. According to Iancu, the procedure for defining abstract ideas and determining whether a particular invention should be patent-eligible or not is still unclear. He highlighted new guidelines that the USPTO issued in 2019 to synthesize court decisions and provide an analytical framework for patent eligibility evaluation. But this alone isnt sufficient, he acknowledged, calling on Congress to reform the eligibility statute itself, which was written in 1790, when technologies such as blockchain, AI, and quantum computing could not have been fathomed.

Jones, on the other hand, argued that the current regime is working well and spurring innovation. He cited, for example, an empirical study that demonstrated that companies increased their research and development (R&D) investments after Alice because they could not simply rely on patents for technologies that were no longer eligible for protection. Limiting the scope of eligibility is helpful, he suggested; patent applicants should not be able to merely add the magic words, on a computer and claim an abstract idea to be patentable. Jones also argued that the post-Mayo/Alice regime has been fairly predictable, and that patent applicants have adapted very quickly to changes in the jurisprudence.

The panelists also discussed U.S. patent eligibility specifically in the context of national competitiveness. Jones explained that under the TRIPS agreement which has been described by the WTO as the most comprehensive multilateral agreement on intellectual property the signatory countries (which comprise most of the world) are obligated to treat foreign inventors and domestic inventors in the same manner. Thus, companies will not necessarily migrate their R&D efforts away from the United States (if they are seeking U.S. patents), Jones argued. On the other hand, Judge Michel warned that capital is fleeing the United States and fleeing hard technology for less risky investments. Iancu said that the United States needs to do more to incentivize startups, small-and-medium enterprises, and venture capital firms to invest in disruptive technologies here at home in order to match competition and innovation from China. He argued that providing adequate protections for patents is a way of creating those incentives. Jones countered that some studies show there has been an increase, not a decrease, in startups access to venture capital investment in the aftermath of Alice.

Okediji concluded the first panel by noting the importance of discussing these issues for national competitiveness and considerations of what can be done with patent levers.

Kristen Jakobsen Osenga, Austin E. Owen Research Scholar & Professor of Law at the University of Richmond School of Law, moderated the second panel. The panel featured Ryan Abbott, Professor of Law and Health Sciences, University of Surrey School of Law, and Adjunct Assistant Professor of Medicine at UCLAs David Geffen School of Medicine; Drew Hirshfield, who is currently performing the functions and duties of the Undersecretary of Commerce for Intellectual Property and Director of the USPTO; Hans Sauer, Deputy General Counsel and Vice President for IP at the Biotechnology Innovation Organization; and Laura Sheridan, Senior Patent Counsel and Head of Patent Policy at Google.

Osenga opened the discussion by noting that the panel would expand on the first panel and discuss some on-the-ground, practical implications of patent eligibility issues.

In their opening remarks, each panelist shared their initial observations on patent eligibility issues. Hirshfield called for greater predictability in patent eligibility laws, a more efficient process for evaluating patents, and a national strategy for protecting AI. Sheridan opined that the current patent eligibility regime is balanced and supportive of AI innovation. Any disruption of the balance would actually harm innovation and emerging technologies, not help it patenting in AI is actually flourishing, despite what the [National Security Commission on AI] report says, she argued. Sauer noted that countries around the world pay close attention to U.S. patent law, including any systematic divergences in outcomes in the United States versus elsewhere. We have lived with a disparate state of affairs, he said, referring to the biotech industrys challenges in obtaining patents in the United States compared to other countries. Abbott spoke to the differences between AIs disruptiveness and previous generations of technologies, particularly emphasizing AIs unique ability to generate its own art, music, and inventions. How the U.S. patent system treats AI-generated inventions (compared to traditional, human-invented IP), Abbot observed, will have important legal and economic ramifications in the years to come.

Commenting on the current landscape of patent applications, Hirshfield noted that 18 to 19 percent of applications to the USPTO now have some form of AI in them. Recognizing the trends, the USPTO is undertaking a range of initiatives related to AI, he said. He also spoke of the challenges emanating from a lack of clarity in patent eligibility jurisprudence and raised concerns about what that might mean for the AI innovations of tomorrow.

Sheridan added that Google has encouraged the USPTO to provide a robust technical training to its patent examiners, such that examiners can stay up-to-date on emerging technologies. She also mentioned that Googles decision on whether to keep an invention a trade secret is not based on patent eligibility law; rather, it is based on business and product-driven considerations, the nature of the technology, and whether Google is comfortable with disclosure.

Sauer suggested that U.S. patent law, as it stands, could potentially invite copyists given the lack of clear protections, and that certain biotech patents might be better protected in China. He also noted that the higher bar for patentability in the United States is leading the biotech industry particularly diagnostics companies to focus its investments more on technologies that can be kept confidential (i.e., trade secrets) or on tools used in the R&D process.

Abbott argued that the law, even as it stands today, should allow for patents to be awarded for AI-generated inventions. He acknowledged that there is currently a split on this question in jurisdictions across the globe. [T]he Patent Act was designed to encourage technological progress and generating socially valuable activities, and that this is exactly the sort of activity that patent law was meant to accommodate, and reading the law with that purpose in mind, there is no principled reason that an AI couldnt invent something and that someone couldnt get a patent on that sort of thing, he said.

In concluding, Sauer mused that we may someday witness a battle of AIs, with AI-generated IP being scrutinized by an AI-driven patent agency evaluation process.

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Symposium Recap: Security, Privacy and Innovation Reshaping Law for the AI Era - Just Security

FORT WAYNE, Ind. (WANE) The City of Fort Wayne and the American Civil Liberties Union of Indiana have announced agreed principals to the original lawsuit stemming from the way police responded to local protests over Minneapolis police brutality of George Floyd in May of 2020.

The lawsuit between the two sides continues but the ACLU has agreed to withdraw a motion for a preliminary injunction. They could still end up in court over monetary damage claims if not resolved by a mutual agreement.

This was just sort of an understanding with them. So we worked with a neutral party, a mediator to come to an understanding about our policies, and that we have good policies, and that we will continue to respect peoples right to protest peacefully, said Fort Wayne City Attorney, Carol Helton.

Protesters believe the city was unreasonable in its use of tear gas without sufficient warning which prevented protesters from leaving and prevented peaceful protesters from gathering. The group of 13 individuals claimed their First and Fourth Amendment rights were violated and asked the court to prohibit the city from taking any future actions designed to stop protests, such as tear gas or rubber bullets. They also sought monetary damages. One plaintiff later withdrew from the lawsuit and the ACLU voluntarily dismissed Allen County Sheriff David Gladieux as a defendant.

I think the injunction was designed to get a formal order setting out certain standards, said Ken Falk, legal director for the ACLU of Indiana. I think these principles are not a court order. But they are a recognition by the city of how theyre going to view the constitutional rights of protesters in the future.

The city denied any wrongdoing and said the use of force by Fort Wayne Police officers was reasonable.

While the two parties continue to have disagreements about certain legal standards that apply to actions made by the City of Fort Wayne, they agree this new statement does not mean the city, police or individual officers admit to any wrongdoing.

Theres been no admission from the city that they did anything wrong, nor did we want admission at this point, Falk said. What we want at this point is to set it in place a framework so this does not happen again and as I said, I applaud the city in recognizing that we can go beyond finger-pointing and try and erect a structure that will prevent this from happening again.

Thursdays joint release also included eight points of agreement derived in part by a neutral mediator:

Going forward, there were learning things that we took away that we could do better that are consistent with our current policies but theyre within our consistent policy, said Sgt. Jeremy Webb, a spokesperson for the FWPD. Things are constantly evolving, our policies change and adapt as tactics and equipment change and adapt, and we try to stay on the cutting edge of that.

Since the protests, the department has made the decision to invest in equipment to increase communication during tense situations. They plan on investing in loudspeakers as well as use drones to make announcements. However, Webb said they stand by how they handled the situation.

Everything that we did, we currently do, was found to be pretty, pretty effective and within state and federal law, Webb said. If they dont like our policies, they need to look at the law of the land. Thats what dictates our policies. Our policies dont dictate law.

As of now, the lawsuit will continue in the Hoosier courts, but the ACLU sees the injunction withdrawal as progress.

I think the plaintiffs are very happy to have this resolved with taking some of the law and negotiation to get this far, said Falk. We may disagree as to where the fault lies, but anything that everyone can do to make sure this doesnt happen, again, is a real plus.

CORRECTION: An earlier version reported this agreement was a settlement to the lawsuit. The two sides have only announced agreed principles and the withdrawal of a preliminary injunction by the ACLU.

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ACLU and Fort Wayne announce agreed principles in lawsuit on George Floyd protests - WANE

ARGUMENT ANALYSIS ByHoward M. Wasserman on Oct 13, 2021 at 5:58 pm

Mythological creatures and French literary heroes appeared during argument in Thompson v. Clark Tuesday, as the justices sought to define favorable termination in certain Fourth Amendment claims under 42 U.S.C. 1983.

Under Section 1983, an individual who is accused of a crime and believes his constitutional rights were violated can sue government actors for civil damages. But the individual must show that the criminal proceeding was terminated in her favor. Thompson involves a Fourth Amendment unreasonable-seizure-through-legal-process claim, and the question is whether the plaintiff must show that the criminal proceeding ended in a way that affirmatively indicates innocence or only that it formally ended in a manner not inconsistent with innocence.

Larry Thompson was charged with resisting arrest and obstructing a government investigation when he attempted to stop police from entering his apartment in response to a false call about child abuse. The prosecution dismissed the charges. Thompsons claim before the Supreme Court is against one responding officer, Pagiel Clark, who signed a criminal complaint during Thompsons initial post-arrest detention.

Amir Ali argued for Thompson. He defined favorable termination as a prosecution that ends without a conviction, including by dismissal of the charges. The favorable-termination rule seeks to avoid parallel civil and criminal proceedings, to avoid inconsistent judgments, and to prevent individuals from using civil litigation to collaterally attack convictions. None of those interests are threatened when a civil case is brought following dismissal of criminal charges, Ali argued.

The justices pushed Ali to define the nature of Thompsons civil claim, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh pushing on the elements of that claim, the timing of the seizure, and whether the court should decide these antecedent issues rather than the question presented. Ali insisted that Thompson was pursuing the claim for unreasonable seizure through legal process described in Manuel v. City of Joliet. He identified two seizures: the almost 40 hours Thompson was held in custody, during which period Clark filed the allegedly false criminal complaint, and the period between his release on his own recognizance and the dismissal of the charges. Ali resisted multiple suggestions that Thompson was bringing a stand-alone malicious-prosecution claim under the Fourth Amendment or that favorable termination attached to the Fourth Amendment as opposed to Section 1983. He also urged the court to avoid numerous issues about the scope and elements of the claim because Clark had not raised them below.

Justice Stephen Breyer introduced Jean Valjean, the protagonist sent to prison for stealing a loaf of bread to feed his family in Victor Hugos Les Miserables. Breyer wondered whether Valjean could bring a claim if the prosecution had dismissed the theft charges as an act of mercy. Breyer and Chief Justice John Roberts questioned whether a dismissal of criminal proceedings should be a favorable termination, given the many reasons that prosecutors might dismiss charges as part of a cooperation agreement, as an act of mercy, or out of prosecutorial caseload concerns. Ali responded that the reason for dismissal affects the success of the Fourth Amendment claim, including whether the plaintiff can prove lack of probable cause and overcome qualified immunity. Ali acknowledged in response to later questions from Alito and Kavanaugh that causation may be difficult to prove in this case, as Thompson must show that he would have been released from custody sooner but for the allegedly false criminal complaint. Those elements lack of probable cause, qualified immunity, and lack of causation weed out weak claims. Favorable termination serves a different purpose preserving the finality of the criminal judgment.

Jonathan Ellis, assistant to the solicitor general, argued for the United States in support of Thompson. The U.S. agreed with Thompson about the claim but identified one actionable seizure the period in custody caused by the unfounded and unwarranted criminal complaint while rejecting the period during the pendency of ordinary criminal charges as an actionable seizure. The U.S. also agreed about the purposes and scope of favorable termination and that it did not require indications of innocence.

Thomas, Gorsuch, and Justice Elena Kagan returned Ellis to the nature of the right, the elements of the claim, and whether the court could assume antecedent issues to focus on the later favorable-termination issue. Ellis argued that Clark had waived many of these issues, but the courts of appeals could benefit from resolution of others. And, he emphasized, favorable termination is easily satisfied here.

Alito then released the centaur. He compared ignoring whether the Fourth Amendment claim exists to asking a medical expert whether a centaur, the mythological creature with the upper body of a human and lower body and legs of a horse, would contract lung cancer from smoking five packs of cigarettes a day; the court cannot define or analyze the claim if the claim is fanciful. Ellis argued that Thompson brought the claim recognized in Manuel and that Fourth Amendment malicious prosecution was not the focus of this case. Favorable termination serves important values independent of other elements of the tort and thus should be retained.

Clarks attorney, John Moore, argued that the U.S. Court of Appeals for the 2nd Circuit got it right in defining favorable termination to mean criminal charges terminated in favor of the criminal defendant in a way reflecting on the merits of those charges. The rule, he said, has strong support in common law and exists for good reason. But he urged the court to resolve the case on the foundational issue that Thompson brought a claim for malicious prosecution that is not cognizable under the Fourth Amendment.

Breyer and Kavanaugh pushed Moore on how this definition of favorable termination fits with the criminal-justice process and how plaintiffs can meet that requirement. Kavanaugh called it an upside down rule those falsely accused whose claims are dismissed early cannot sue unless they can dig into the prosecutors mindset, while those who go to trial can sue. Breyer suggested that actual practice runs contrary to Clarks position, because normal proceedings do not affirmatively indicate innocence; prosecutors dismiss cases, and the accused does not object to dismissal. Moore cited statistics from an NAACP amicus brief showing that 85% to 90% of dismissals are for reasons wholly independent of the merits. But because the prosecutor decides whether to dismiss criminal charges and the police officer is the defendant in the Section 1983 action, an indication of innocence connects the elements to the officers conduct.

Moore had lengthy exchanges with Roberts, Justice Sonia Sotomayor, and Kagan about whether the court can and should resolve the downstream issues of favorable termination without resolving the upstream issues of identifying the precise claim, the constitutional source for the claim, and the elements of the claim. Moore argued that the court cannot define the scope and meaning of favorable termination without determining the existence and elements of the claim, which in turn depend on the constitutional source of the right. A Fourth Amendment claim challenging an unreasonable seizure does not impugn convictions or criminal proceedings, so the reasons for a favorable-termination requirement are absent. Those reasons were present in the courts prior favorable-termination cases, which considered due process claims. Moore conceded in response to a question from Justice Amy Coney Barrett that his arguments are stronger on the upstream issues than on the downstream issue in the question presented.

Ali argued that the court could resolve the case in three sentences; two, if you like semi-colons.

He urged the court to write that the 2nd Circuit decided that the favorable-termination requirement for some Section 1983 claims requires indications of innocence, but it does not; a criminal proceeding terminates in favor of the accused when it ends without a conviction.

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Centaurs, Jean Valjean, and a proposed three-sentence ruling on the meaning of favorable termination - SCOTUSblog