“Flowers Which Are Born To Blush Unseen”: This Supreme Court Term’s Sleeper Cases

Dan Schweitzer, Supreme Court Counsel

Dan Schweitzer, Supreme Court Counsel

In his annual year-in-review speech at the Fourth Circuit Judicial Conference, Chief Justice William Rehnquist “liked to invoke Thomas Gray’s Elegy Written in a Country Churchyard, describing the latest Term’s sleeper cases as ‘flowers which are born to blush unseen and waste their sweetness on the desert air.’”[1] Often, the cases that prove most important to future litigants are not those that garnered the headlines or prompted a flood of amicus briefs. Sometimes the less-publicized cases, the sleeper cases, end up mattering the most. With that in mind, here is a quick look at some recent rulings by the Supreme Court that have so far “blush[ed] unseen,” but which, from the states’ perspective, ought to be studied quite closely.

Herring v. United States. Since the Court first applied the exclusionary rule to the states in Mapp v. Ohio, 367 U.S. 643 (1961), the rule has been one of the Court’s most controversial innovations. Opponents of the rule have had little success over the years, but several recent decisions suggest the Court may be prepared to narrow its scope considerably. Herring is another important step in that direction.

On the surface, Herring appears to be nothing more than a modest extension of Arizona v. Evans, 514 U.S. 1 (1995), where the Court held that a recordkeeping error by a court clerk, which led to an unlawful arrest, does not trigger the exclusionary rule. The Court in Herring held that the same result obtains when the recordkeeping error was made by a clerk in a sheriff’s office. (Because the office’s computer database had not recently been updated, the clerk wrongly told an officer there was an outstanding warrant for Herring’s arrest.) On the surface, this appears to be a minor case about arrests (and subsequent searches) based on recordkeeping errors. The Court’s reasoning, however, lays the seeds for more dramatic changes to come.

The Court stated that “[t]he fact that a Fourth Amendment violation occurred . . . does not necessarily mean that the exclusionary rule applies.” 129 S. Ct. at 700. Rather, “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 702. Quoting United States v. Leon, 468 U.S. 897, 922 n.23 (1984), the Court stated that the question is “whether a reasonably well trained officer would have known that the search was illegal” in light of “all the circumstances.” 129 S. Ct. at 703.

If the Court in a future case reads those passages for all they are worth, the result would be a major retrenchment of the exclusionary rule. Many Fourth Amendment violations are committed by officers who acted on a good faith belief that they had the requisite reasonable suspicion or probable cause to stop, arrest, or search a person. Under current doctrine, the “good faith” exception adopted in Leon only applies when an officer in good faith relied on a search warrant issued by a magistrate, but ultimately found to be unsupported by probable cause. Herring suggests that the “good faith” exception may be extended to all instances in which an officer violates the Fourth Amendment when acting in good faith.

Ashcroft v. Iqbal. On one level, this case was not a sleeper. The front page of major newspapers reported that the Court rejected a 9/11 detainee’s lawsuit against former U.S. Attorney General John Ashcroft and FBI Director Robert Mueller. And legal publications noted the importance of the decision’s holding on how detailed a plaintiff’s factual pleadings must be to survive a motion to dismiss. But for states and other governmental entities, the big news in the opinion lay elsewhere ― namely, in the Court’s rejection of supervisory liability in §1983 and Bivens actions.

As a predicate to determining whether the plaintiff, Javaid Iqbal, pled sufficient facts against Ashcroft and Mueller, the Court had to determine the elements of his claim. Iqbal alleged that he and other Muslims, because of their religion and national original, were mistreated when they were detained after the 9/11 attacks. As to Ashcroft and Mueller, specifically, one of Iqbal’s claims was that they personally “adopted and implemented the detention policies at issue” for discriminatory reasons. The Court ultimately held that Iqbal failed to plead sufficient facts to state that claim. His other claim against Ashcroft and Mueller was that they knew, and acquiesced in, “their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” In rejecting this claim, the Court essentially eliminated the doctrine of supervisory liability in government-officer actions.

It was common ground among the parties and all nine Justices that government officers may not be held liable in §1983 and Bivens actions under a theory of respondeat superior. Most lower courts, however, had held that government supervisors could be held liable for their subordinates’ conduct in certain situations. For example, Judge Posner wrote for the Seventh Circuit that government supervisors may be held liable if they “know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.” Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). Other circuits had adopted gross negligence, recklessness, and deliberate indifference standards for supervisory liability. In its Iqbal decision, the Court rejected those approaches.

The Court held that supervisors’ “knowledge and acquiescence in their subordinates’” unconstitutional conduct is not actionable under §1983 and Bivens. 129 S. Ct. at 1949. Stated the Court: “In a §1983 suit or a Bivens action ― where masters do not answer for the torts of their servants ― the term ‘supervisory liability’ is a misnomer. . . . [E]ach Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Id. Applied here, because “purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination[,] the same holds true for an official charged with violations arising from his or her superintendent responsibilities.” Id. In the dissent’s words, this “does away with supervisory liability under Bivens” ― and under §1983 as well. Id. at 1955. This should prove very helpful to many state officers represented by state Attorney General Offices.

Nken v. Holder and Abuelhawa v. United States. On the surface, these two cases have nothing to do with state attorneys’ practice. Nken addressed when federal appeals courts may stay lower court deportation orders; Abuelhawa addressed the construction of a federal law making it a felony to use a “communication facility” (e.g., a cell phone) to facilitate the commission of a felony drug crime. State attorneys may be interested, however, in the reasoning the Court used to resolve these two cases. In particular, the decisions may provide some tools state attorneys can use when the plain language of a statute appears to cut against the state’s position.

At issue in Nken was whether a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 barring appellate courts from “enjoin[ing]” the removal of an alien bars appellate courts from granting stays of removal orders pending appeal. The issue, in large part, revolved around whether the term “injunction” encompasses “stays.” The Court held it does not, even though the Court acknowledged that “a stay might technically be called an injunction.” 129 S. Ct. at 1758. The Court held that this technical meaning (what might sometimes be called a “literal” meaning) is “beside the point” because “that is not the label by which it is generally known. The sun may be a star, but ‘starry sky’ does not refer to a bright summer day. The terminology of [the provision] does not comfortably cover stays.” Id. at 1759.

Abuelhawa involved §843(b) of the Controlled Substances Act, which makes it a felony “to use any communication facility in . . . facilitating” certain felonies under the Act. Does “someone violate[] §843(b) in making a misdemeanor drug purchase because his phone call to the dealer can be said to facilitate the felony of drug distribution”? 129 S. Ct. at 2104. The government argued that the answer is yes, based on the plain meaning of the statutory terms. No one disputed that a phone counts as a “communication facility.” The question, then, is whether the drug purchaser’s use of the phone can be said to have “facilitated” the felonious sale by the dealer. The plain meaning of facilitate is to “make easier.” And no one seriously disputes that the use of a phone can make the drug sale easier. Q.E.D.

Not so fast. The Court unanimously ruled against the government, stating that its “literal sweep of ‘facilitate’ sits uncomfortably with common usage.” 129 S. Ct. at 2105. When an event, like a sale, requires two participants, “it would be odd to speak of one party as facilitating the conduct of the other . . . . No buyer, no sale; the buyer’s part is already implied by the term ‘sale,’ and the word ‘facilitate’ adds nothing.” Id. The Court also pointed to its “traditional” rule “that where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the calibration of punishment set by the legislature.” Id. at 2106. For example, absent §843(b), the law would not treat the purchaser of a small quantity of marijuana as a felon on the ground that he was aiding and abetting the felonious sale.

And so we have two examples where the Supreme Court rejected the literal reading of the statute in favor of a reading that better comported with “common usage.” Perhaps one day soon, you will have a case where you can remind the court that “[t]he sun may be a star, but ‘starry sky’ does not refer to a bright summer day.” If so, Nken will no longer be one of those “flowers which are born to blush unseen and waste their sweetness on the desert air.”


[1] Richard W. Garnett, William H. Rehnquist: A Life Lived Greatly, and Well, 115 Yale L.J. 1847, 1849 (2006).

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