Author: Rory Little

In a narrow and analytically useful opinion this morning, the Supreme Court ruled 7-2 that a courtroom closure error that is not raised until collateral attack via an ineffective-assistance claim does not require automatic reversal despite being labelled “structural” error. Instead, the defendant must show “prejudice” under a reading of Strickland v. Washington that five justices assume is correct. Justice Clarence Thomas filed a short concurring opinion, Justice Samuel Alito wrote an opinion concurring only in the judgment, and Justice Stephen Breyer filed a dissent joined by Justice Elena Kagan. Finally, Justice Neil Gorsuch joined Justice Anthony Kennedy’s majority opinion, Thomas’ concurring opinion, and Alito’s opinion that concurred only in the judgment. Perhaps unsurprisingly for a new justice, Gorsuch seems to want to be friends with as many of his colleagues as possible. [caption id="attachment_257515" align="aligncenter" width="570"] Justice Kennedy with opinion in Weaver v. Massachusetts (Art Lien)[/caption]

As predicted, the court yesterday ruled unanimously that the federal criminal asset forfeiture statutes are “limited to property the defendant himself actually acquired as the result of the crime.” Thus there is no “joint and several liability” for forfeiture among members of a criminal conspiracy, unless the individual conspirator “acquired” or “personally benefit[ed]” from the forfeitable property. The short opinion in Honeycutt v. United States, written by Justice Sonia Sotomayor (with Justice Neil Gorsuch not participating), did not examine the implications of these two apparent qualifications, and future criminal-forfeiture cases will undoubtedly do so. But the rejection of joint-and-several forfeiture liability, as a federal statutory matter, was clear and uncontroversial. Unusually straightforward facts Future litigation about the meaning of Honeycutt is likely, because most criminal conspiracy cases will not have facts as clear-cut, or as conceded, as this one. It is hard to improve on the court’s spare four-paragraph summary. Terry Honeycutt managed sales and inventory at a hardware store owned by his brother. According to the court, the government “conced[ed] that Terry had no controlling interest in the store and did not stand to benefit personally” from its sales. Over the course of three years, the store sold over 20,000 bottles of “Polar Pure” water purifier at a $269,000 profit, “despite the fact that most people have no legitimate use for the product in large quantities.” In fact, Terry and his brother were informed by the police that Polar Pure could be used to manufacture methamphetamine, and they were advised to stop selling it – but they did not. After being indicted on federal drug distribution charges, Terry’s brother pled guilty and agreed to a forfeiture judgment of $200,000.

In an opinion that seems carefully crafted to achieve unanimity rather than break new ground, the court yesterday unsurprisingly and unanimously rejected the U.S. Court of Appeals for the 9th Circuit’s Fourth Amendment “provocation rule” while leaving the specific facts open for further analysis on remand. Justice Samuel Alito authored a crisp 11-page opinion, without dissent, for an eight-justice court (Justice Neil Gorsuch did not participate) that is rightfully weary of 4-4 tie possibilities. Alito’s opinion hewed closely to the excessive force precedent of Graham v. Connor and avoided points that had provoked strong disagreement at oral argument and in the briefs. As a result, the opinion masks more issues than it resolves. All we know, after reading this opinion, is this: When law enforcement uses force that is judged “reasonable” based on “circumstances relevant to that determination,” then “a different Fourth Amendment violation cannot transform [that] reasonable use of force into an unreasonable seizure.”

In the last oral argument of the week, in Weaver v. Massachusetts, the court confronted two seemingly incompatible lines of doctrine. When there is a “structural” error in a criminal trial, prejudice is often irrebuttably presumed and a new trial is ordered. But when a defendant alleges that his lawyer was constitutionally ineffective, he must prove prejudice before his conviction will be reversed. These doctrines collide when a structural error occurs and a lawyer’s ineffective assistance leaves it uncorrected. Which rule – prove prejudice or presume it -- should apply? After an hour of argument yesterday, the justices seemed divided and genuinely undecided. Justices Elena Kagan and Samuel Alito repeatedly staked out opposite positions, while Chief Justice John Roberts and Justices Anthony Kennedy and Stephen Breyer appeared to be still searching for answers. Toward the end, Breyer succinctly expressed the Solomonic quandary: It may be true that precedent does not yield a clear answer, “but if we’re cutting this child in two,” perhaps a new solution is required.

Yesterday’s argument in County of Los Angeles v. Mendez was, in a word, unsatisfying. The question of governmental liability for a law enforcement shooting of innocent individuals is extremely fact-intensive, and the law in this area is unsettled enough that assembling a majority for general Fourth Amendment rules on this record presents quite a challenge. It is possible to imagine some general statements that the court could agree on, but when it comes time to either affirm or reverse the specific award here, the justices might well split 4-4. Accurate tea-leaf reading seems impossible based on this argument transcript; the justices themselves seemed undecided. But in the end, at least four justices may view a tie as the fairest result on this record: The damages award for the sympathetic plaintiffs here would be left in place, without a divided Court issuing conflicting opinions on the law.

In the year since Justice Antonin Scalia died, the eight-justice court has repeatedly decided only issues that they can agree on, and has frequently remanded more difficult questions for future resolution. Unsurprisingly (see my post-argument analysis), that pattern held true in today’s decision in Manuel v. City of Joliet. A 6-2 majority ruled that the Fourth Amendment is the proper basis on which to challenge a post-arrest detention that was continued for seven weeks, allegedly without probable cause. Beyond that, Justice Elena Kagan’s opinion “le[ft] all other issues” for remand, over Justice Samuel Alito’s and Clarence Thomas’ dissents.