Criminal Cases to Watch in the Supreme Court’s 2019 Term

The United States Supreme Court’s 2019 term is well underway, and several criminal law cases are on the docket. Listed below are the principal criminal law cases currently before the court, with a link to the docket entry for each case, followed by the Questions Presented.

Kansas v. Garcia, No. 17-834 : In 1986, Congress enacted the Immigration Reform and Control Act CIRCA (IRCA). IRCA made it illegal to employ unauthorized aliens, established an employment eligibility verification system, and created various civil and criminal penalties against employers who violate the law. 8 U.S.C. § 1324a. Regulations implementing IRCA created a “Form I-9” that employers are required to have all prospective employees complete-citizens and aliens alike. IRCA contains an “express preemption provision, which in most instances bars States from imposing penalties on employers of unauthorized aliens,” Arizona v. United States, 567 U.S. 387, 406 (2012), but IRCA “is silent about whether additional penalties may be imposed against the employees themselves.” Id. IRCA also provides that “[the Form I-9] and any information contained in or appended to such form, may not be used for purposes other than enforcement of [chapter 12 of Title 8] and sections 1001, 1028, 1546, and 1621 of Title 18.” 8 U.S.C. § 1324a(b)(5). Here, Respondents used other peoples’ social security numbers to complete documents, including a Form I-9, a federal W-4 tax form, a state K-4 tax form, and an apartment lease. Kansas prosecuted Respondents for identity theft and making false writings without using the Form I-9, but the Kansas Supreme Court held that IRCA expressly barred these state prosecutions. This petition presents two questions, depending on the answer to the first question: 1. Whether IRCA expressly preempts the States from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications. 2. If IRCA bars the States from using all such information for any purpose, whether Congress has the constitutional power to so broadly preempt the States from exercising their traditional police powers to prosecute state law crimes.

Kahler v. Kansas, No. 18-6135:  Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?

Shular v. United States, No. 18-6662:  Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act?

Ramos v. Louisiana, No. 18-5924:  Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict?

Mathena v. Malvo, No. 18-217:  In Miller v. Alabama, 567 U.S. 460 (2012), this Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.'” Id. at 465. Four years later, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court held that “Miller announced a substantive rule of constitutional law” that, under Teague v. Lane, 489 U.S. 288 (1989), must be given “retroactive effect” in cases where direct review was complete when Miller was decided. Montgomery, 136 S. Ct. at 736. The question presented is: Did the Fourth Circuit err in concluding-in direct conflict with Virginia’s highest court and other courts-that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question?

Kansas v. Glover, No. 18-556:  A Kansas officer ran a registration check on a pickup truck and learned that the registered owner’s license had been revoked. Suspecting that the owner was unlawfully driving, the officer stopped the truck, confirmed that the owner was driving, and issued the owner a citation for being a habitual violator of Kansas traffic laws. The Kansas Supreme Court, breaking with 12 state supreme courts and 4 federal circuits, held the stop violated the Fourth Amendment. The question presented is whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.

Kelly v. United States, No. 18-1059:  Does a public official “defraud” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision?

United States v. Sineneng-Smith, No. 19-67: Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(l)(A)(iv) and (B)(i), is facially unconstitutional.

United States v. Briggs, No. 19-108 and United States v. Collins, No 19-184: Whether the Court of Appeals for the Armed Forces erred in concluding–contrary to its own longstanding precedent–that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

Walker v. United States, No. 19-373, Whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a ”violent felony” under the Armed Career Criminal Act, 18 U.S.C. 924(e).

Of these cases, Kansas v. Glover, argued on November 4, interests me most. The Kansas Supreme Court held that an officer lacked reasonable suspicion to stop the defendant’s vehicle when the officer knew only that the vehicle was registered to the defendant and the defendant had a revoked driver’s license, but did not have evidence that the defendant was the person driving the vehicle. State v. Glover, 422 P.3d 64 (Kan. 2018). The court reasoned that an officer could not presume that the owner was the driver because this required the stacking of two unsupported assumptions:  (1) the registered owner was likely the primary driver of the vehicle; and (2) the registered owner will likely disregard a license suspension and continue to drive the vehicle.

The Kansas Supreme Court’s holding in Glover is inconsistent with the view taken by many other appellate courts, including North Carolina’s. See State v. Hess, 185 N.C. App. 530 (2007) (adopting “the holding of the majority of jurisdictions that when a police officer becomes aware that a vehicle being operated is registered to an owner with a suspended or revoked driver’s license, and there is no evidence appearing to the officer that the owner is not the individual driving the automobile, reasonable suspicion exists to warrant an investigatory stop.”)

SCOTUSblog has an analysis of the argument in Glover here. The upshot? The justices “seem divided.”

The Supreme Court also has granted review in the Second Amendment case listed below. Even though that case is civil rather than criminal, it may be of interest to criminal law practitioners, particularly given the numerous crimes premised on the unlawful possession of weapons.

New York State Rifle and Pistol Association, Inc. v. City of New York, No. 18-280: New York City prohibits its residents from possessing a handgun without a license, and the only license the City makes available to most residents allows its holder to possess her handgun only in her home or en route to one of seven shooting ranges within the city. The City thus bans its residents from transporting a handgun to any place outside city limits-even if the handgun is unloaded and locked in a container separate from its ammunition, and even if the owner seeks to transport it only to a second home for the core constitutionally protected purpose of self-defense, or to a more convenient out-of-city shooting range to hone its safe and effective use. The City asserts that its transport ban promotes public safety by limiting the presence of handguns on city streets. But the City put forth no empirical evidence that transporting an unloaded handgun, locked in a container separate from its ammunition, poses a meaningful risk to public safety. Moreover, even if there were such a risk, the City’s restriction poses greater safety risks by encouraging residents who are leaving town to leave their handguns behind in vacant homes, and it serves only to increase the frequency of handgun transport within city limits by forcing many residents to use an in-city range rather than more convenient ranges elsewhere. The question presented is: Whether the City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

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