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When Maryland police bound a suspect to a pole and left him unattended for officers from a neighboring jurisdiction to pick up, should the officers have known they were violating his constitutional rights? That question, which sharply divided two influential judges on the U.S. Court of Appeals for the 4th Circuit, goes before the Supreme Court at its private conference March 28. The case, Robles v. Prince George’s County, Maryland, No. 02-1122, is one of several that the Court will discuss to decide whether its review is warranted. The Court also meets April 4. It was early in the morning on Aug. 17, 1996, when two Prince George’s police officers arrested Nelson Robles on an outstanding warrant for a traffic violation stemming from a hit-and-run accident. The warrant was issued by neighboring Montgomery County, and the Prince George’s officers wanted to avoid the paperwork that would be required to make the transfer. They tried to transfer Robles informally at the county line, but no Montgomery County officers were available at the time. The arresting officers then drove Robles to an abandoned parking lot at the back of a shopping center and bound him to a pole using plastic “flexcuffs.” They left a note with Robles and drove away, then made an anonymous call to Montgomery police to report a “dude tied up” at the shopping center. Montgomery County police soon arrived. Robles sued the police for violating his constitutional rights under 42 U.S.C. �1983, and for violating state laws as well. Robles recovered damages on the state claims, but both a district court judge and a 4th Circuit panel dismissed his complaint. The 4th Circuit panel, in an opinion written by Judge J. Harvie Wilkinson III, found that Robles’ due process rights were violated. But, he said, the officers were entitled to qualified immunity because it was not clear to them that what they did was a constitutional violation. “Although the officers’ actions in this instance were foolish and unorthodox, it is also not clear that at the time they acted they should have reasonably known that their conduct violated Robles’ constitutional rights,” Wilkinson wrote. When lawyers for Robles asked the 4th Circuit to review the ruling en banc, the motion was denied, but Judge J. Michael Luttig wrote a lengthy dissent, attacking the earlier decision for its “breathtaking expansion of the qualified immunity doctrine.” Luttig added, “So clear do I believe it to be that conduct like that at issue here is prohibited by the Constitution, that I would think it an affront to law enforcement officers to be told that they would not reasonably know that such conduct was violative of a detainee’s rights.” He said the ruling went “a long way toward the dilution of Section 1983 itself.” Wilkinson responded to Luttig’s dissent: “To read the dissent, one would think that the panel’s decision had in some way been approving of the officers’ behavior in this case. Far from it.” Both Wilkinson and Luttig are frequently mentioned as possible nominees for seats on the Supreme Court. In the petition to the Supreme Court, Robles’ lawyer Terrell Roberts III, of the Riverdale, Md., firm Roberts & Wood, said high court review was needed to resolve circuit conflicts and correct the 4th Circuit view of qualified immunity: “The most outrageous conduct of government officials will be protected simply because there is no precedent forbidding such conduct.” In response, Jay Creech of the Prince George’s County Attorney’s Office said the 4th Circuit ruling was “proper in all respects” and did not warrant review. He also described the petition as a “not-so-veiled attempt to recover attorney’s fees.” OTHER CASES UP FOR REVIEW March 28: • Davis v. Southern Energy Homes Inc., No. 02-1117. Whether the Magnuson-Moss Warranty Act prohibits the supplier of a consumer product from creating a binding arbitration procedure at time of product sale. • Walker Louisiana Properties v. Broussard, No. 02-960. Whether a state court has the authority to regulate use of navigable airspace when aircraft are being operated in complete compliance with FAA regulations. April 4:Immigration and Naturalization Service v. Singh, No. 02-1123. Whether the Board of Immigration Appeals abused its discretion when it refused to rescind a deportation order for an alien who was mistakenly two hours late for his deportation hearing. • Ty Inc. v. Perryman, No. 02-1142. Whether a third-party reseller of trademarked goods has the right to incorporate the famous mark in its business name under the Federal Trademark Dilution Act. • Lodi, California v. Fireman’s Fund Insurance Co., No. 02-1169. Whether the Comprehensive Environmental Response, Compensation, and Liability Act pre-empts state or local regulation of hazardous waste removal. “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein is counsel for the petitioner in Ty Inc. v. Perryman, No. 02-1142.

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