Why the Supreme Court was Right Last Week to Deny Review of the Pennsylvania Supreme Court Decisions Handed Down Prior to the 2020 Election

VIKRAM DAVID AMAR, JASON MAZZONE

Illinois Law dean Vikram David Amar and professor Jason Mazzone argue that the U.S. Supreme Court correctly denied review last week of the Pennsylvania Supreme Court decisions handed down before the 2020 election. Dean Amar and Professor Mazzone explain why the majority denied review and point out that the dissenting opinions unwittingly demonstrate the rightness of the majority.

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Hernandez v. Town of Gilbert

Docket: 19-15811

Opinion Date: March 4, 2021

Judge: Richard C. Tallman

Areas of Law: Civil Rights, Constitutional Law

The Ninth Circuit affirmed the district court's grant of summary judgment based on qualified immunity to a police officer in a 42 U.S.C. 1983 action brought by plaintiff, alleging that the officer used excessive force when he deployed his police dog in effecting plaintiff's arrest for driving under the influence and resisting arrest. The panel concluded that no clearly established law governed the reasonableness of using a canine to subdue a noncompliant suspect who resisted other types of force and refused to surrender. In this case, following a brief police chase, plaintiff fled to his home where he activated the remote-controlled garage door opener, remained in control of his car inside the garage for eight minutes, refused multiple commands to get out of the car, and resisted lesser force employed by officers without effect while he continued resisting. The officer released his police dog to force compliance and, even after the dog bit him, plaintiff continued to resist. The panel explained that the initial deployment of the canine and the duration of the bite did not violate clearly established law.

United States v. Lucero

Docket: 19-10074

Opinion Date: March 4, 2021

Judge: Patrick J. Bumatay

Areas of Law: Criminal Law

The Ninth Circuit reversed defendant's conviction on three counts of knowingly discharging a pollutant in violation of the Clean Water Act. Defendant's conviction stemmed from his role in orchestrating a scheme charging construction companies to dump dirt and debris on lands near the San Francisco Bay, including "wetlands" and a "tributary." The panel concluded that the Act requires the government to prove a defendant knew he was discharging material "into water." In this case, the jury instructions failed to make this knowledge element clear, and the error was not harmless. Accordingly, the panel remanded for a new trial with jury instructions that make clear the government's burden to prove that the defendant knowingly discharged fill material "into water." The panel also concluded that the regulation defining "waters of the United States" at the time of defendant's trial is not unconstitutionally vague, and that a newly promulgated 2020 regulation that substantially narrowed the definition of "waters of the United States" represents a change in the law that does not apply retroactively.

United States v. Rundo

Docket: 19-50189

Opinion Date: March 4, 2021

Judge: Per Curiam

Areas of Law: Criminal Law

The Ninth Circuit reversed the district court's dismissal of an indictment charging defendants with conspiracy to violate the Anti-Riot Act and three of those defendants with substantively violating the Act. The district court held that the Act was unconstitutional on the basis of facial overbreadth under the First Amendment. The panel applied Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), and concluded that most of the provisions of the Act are reasonably construed as constitutional, and defects are severable from the remainder of the Act. In this case, there was no violation of the First Amendment in the Act's overt act provisions; its definition of a riot; or in subparagraphs (1), (2), and (4) of 18 U.S.C. 2101(a), except insofar as subparagraph (2) prohibits speech tending to "organize," "promote," or "encourage" a riot, and 18 U.S.C. 2102(b) expands the prohibition to "urging" a riot and to mere advocacy. The panel explained that the Act prohibits unprotected speech that instigates (incites, participates in, or carries on) an imminent riot, unprotected conduct such as committing acts of violence in furtherance of a riot, and aiding and abetting of that speech or conduct. Once the offending language is severed from the Act, the panel concluded that the Act is not unconstitutional on its face and remanded for further proceedings.

Abdi Asis Ali Aden v. Wilkinson

Docket: 17-71313

Opinion Date: March 4, 2021

Judge: Paez

Areas of Law: Immigration Law

The Ninth Circuit granted a petition for review of the BIA's dismissal of petitioner's appeal of an IJ's denial of his applications for asylum and withholding of removal from Somalia. The panel held that the restricted-residence exception applies when the country's authorities are unable or unwilling to protect the applicant from persecution by nongovernmental actors. The panel concluded that the Board erred by determining that petitioner did not qualify for a firm-resettlement exception because the persecution he suffered was perpetrated by nongovernment actors. On remand, the Board should consider whether petitioner was firmly resettled in South Africa. The panel also held that petitioner suffered past persecution in Somalia on account of a protected ground. In this case, the record evidence would compel any reasonable factfinder to conclude that petitioner suffered persecution on account of a protected ground because Al Shabaab was motived by their own political and religious beliefs, rather than petitioner's. The panel explained that Al-Shabaab's accusation that petitioner and his brother were featuring Islamically forbidden, "Satanic" films provided direct evidence of their political and religious motive. Even if the brothers did not feature the films out of their own political or religious convictions, Al-Shabaab at the very least imputed those beliefs to them. The panel also remanded to give the government an opportunity to rebut the presumption of future persecution triggered by petitioner's showing of past persecution on account of a protected ground.

Anderson v. Edward D. Jones & Co., LP

Docket: 19-17520

Opinion Date: March 4, 2021

Judge: Milan Dale Smith, Jr.

Areas of Law: Securities Law

The Ninth Circuit reversed the district court's dismissal of a class action brought by investors with a financial services firm. Plaintiffs alleged that Edward Jones breached its fiduciary duties under Missouri and California law, but the district court concluded that it did not have subject matter jurisdiction because the Securities Litigation Uniform Standards Act (SLUSA) prevents plaintiffs from bringing their claims as a class action consisting of fifty or more persons. The panel concluded that SLUSA does not bar plaintiffs' state law fiduciary duty claims because Edward Jones's alleged misrepresentation or omission that forms the basis for plaintiffs' fiduciary duty claims is not "in connection with the purchase or sale of a covered security." In this case, plaintiffs claim that Edward Jones breached its fiduciary duties under Missouri and California law by failing to conduct a suitability analysis, and they allege that this lack of suitability analysis caused them to move their assets from commission-based accounts to fee-based accounts, which was not in their best financial interest as low-volume traders. The panel explained that the alleged failure to conduct a suitability analysis was not material to the decision to buy or sell any covered securities. Accordingly, the panel remanded for further proceedings.