Supreme Court Conference Watch: Qualified Immunity, State Bar Fees and Firearms
A growing and ideologically diverse chorus of individuals and organizations have been asking the Supreme Court to reconsider the doctrine of qualified immunity.
May 27, 2020 at 06:07 PM
6 minute read
During its private conference Thursday, the U.S. Supreme Court will consider 10 gun-related petitions, a raft of qualified immunity challenges, an attempt to block mandatory state bar fees and the Trump administration's fight with California over its immigration laws.
Second Amendment challenges to state or local restrictions have made regular appearances on the court's docket since the justices's landmark rulings in District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010, rulings that more broadly opened up the ownership of firearms.
Gun rights advocates were hopeful this term that their complaints about lower courts being insufficiently protective of Second Amendments rights would be validated when the justices agreed to decide a challenge to a New York City ordinance. But that case—New York State Pistol & Rifle Association v. City of New York—was dismissed as moot after full briefing and oral arguments.
The pending 10 petitions offer a variety of issues for the justices, including Massachusetts' ban on assault weapons and Maryland's requirement that individuals who want to carry a handgun in public demonstrate a particularized "good and substantial reason" to do so.
Here's a look at some of the other cases the justices have on their conference list:
>> Qualified immunity: A growing and ideologically diverse chorus of individuals and organizations have been asking the Supreme Court to reconsider the doctrine of qualified immunity. The doctrine protects public officials from lawsuits alleging they have violated someone's rights, except where officials violated a "clearly established" statutory or constitutional right.
The justices could choose from nine pending petitions which offer a variety of different fact patterns where police officers and others won immunity from suit.
Like the gun petitions, the qualified immunity petitions have been listed for the court's private conference many times. Justice Clarence Thomas urged the court in 2017 to hear the question of whether the doctrine should be reconsidered. He also has criticized the court for failing to take up more Second Amendment cases and has called the amendment a "disfavored right" and a " constitutional orphan."
>> State bar fees: In Jarchow v. Wisconsin, the justices are asked whether, in light of their 2018 decision striking down union "fair share fees," they should overrule Lathrop v. Donohue (1961) and Keller v. State Bar of California (1990) and hold that "integrated bar" arrangements like Wisconsin's, which require attorneys licensed in the state to be members of and pay dues to the state bar association, violate the First Amendment. Baker & Hostetler's David Rivkin is counsel to Jarchow; Foley & Lardner's Roberta Howell represents the state bar.
>> Sanctuary states: The Trump administration in United States v. California argues that the state's law prohibiting state law enforcement officials from giving federal immigration officials the release dates and other information about undocumented aliens and restricting their transfer to federal immigration custody is preempted by federal law or barred by intergovernmental immunity. U.S. Solicitor General Noel Francisco represents the government; California Deputy Solicitor General Aimee Feinberg is counsel for the state.
>> Madoff-related fraud clawbacks: Foreign banks in HSBC Holdings v. Picard contend that Madoff trustee Irving Picard is impermissibly applying U.S. bankruptcy law to foreign transactions in his effort to claw back $3.2 billion from the foreign banks—the largest remaining cache of funds sought by Picard in his effort to compensate victims who lost $19 billion in the Madoff fraud. Kirkland & Ellis' Paul Clement represents HSBC; Roy Englert of Robbins, Russell, Englert, Orseck, Untereiner & Sauber, is counsel to Picard.
>> Second Amendment: The 10 pending petitions were filed by: Alan Gura of Gura PLLC (Mance v. Barr; Pena v. Horan), who successfully argued the landmark 2008 District of Columbia v. Heller. Two petitions have been filed by Kirkland & Ellis partner Paul Clement (Rogers v. Grewal; Malpasso v. Pallozzi), and David Sigale of Sigale Law Firm in Wheaton, Illinois (Culp v. Raoul; Wilson v. Cook County). Also: Cooper & Kirk partner David Thompson (Gould v. Lipson); David Jensen of New York's David Jensen PLLC (Cheeseman v. Polillo); Douglas Ciolek of Denville, New Jersey (Ciolek v. New Jersey) and John Parker Sweeney of Bradley Arant Boult Cummings (Worman v. Healey).
>> Qualified immunity: The nine qualified immunity challenges were filed by: McDermott Will & Emery partner Paul Hughes (Zadeh v. Robinson; Corbitt v. Vickers), Scott Michelman of ACLU (Baxter v. Bracey); Tillman Breckenridge of Breckenridge (Brennan v. Dawson); Marcelyn Stepanski of Rosati Schultz Joppich & Amtsbuechler (Dawson v. Brennan); Erwin Chemerinsky, University of California Berkeley School of Law (Anderson v. City of Minneapolis); Robert McNamara, Institute of Justice (West v. Winfield); Jeffery Speer of Doucet Speer, Lafayette, Louisiana (Mason v. Faul); and James Jeffrey of Arlington, Texas (Hunter v. Cole).
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