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Wading into a water rights dispute between the states of Maryland and Virginia, the justices on Dec. 9 ruled, 7-2, that Virginia’s ability to build a water intake structure extending 725 feet into the Potomac River was not contingent on obtaining approval from Maryland. Virginia v. Maryland, No. 129. A 1785 compact and an 1877 arbitration award had recognized that Maryland controlled the Potomac up to the low-water mark on the Virginia shore. For 40 years after Maryland had established a water-use permitting system, Virginia had applied for such permits that were routinely granted. But after Maryland had denied Virginia’s request for approval of the intake project, Virginia sued Maryland. Parsing the historic documents’ language, the high court ruled that, even though Maryland controlled the river bottom, nothing in either paper prohibited Virginia from building a structure appurtenant to its own shore, as long as it didn’t impede navigation or interfere with Maryland’s river usage. Chief Justice William H. Rehnquist delivered the court’s opinion, joined by justices Antonin Scalia, Sandra Day O’Connor, David H. Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer. Justices John Paul Stevens and Anthony M. Kennedy dissented. The NLJ’s coverage of the Supreme Court’s Dec. 10 campaign finance law decision, McConnell v. Federal Election Comm’n, No. 02-1674, starts on Page 1 of this issue. On Dec. 2, the high court also rendered decisions in these cases: CRIMINAL PRACTICE Overturning a 9th U.S. Circuit Court of Appeals decision to quash evidence obtained by police in a knock-and-announce search, the justices ruled unanimously that the officers’ 20-second wait before kicking in the defendant’s door was reasonable under the circumstances. United States v. Banks, No. 02-473. Reserving his right to challenge the search on appeal, Lashawn Banks pleaded guilty to drug and firearms charges after Las Vegas police, executing a warrant, forcibly entered his apartment. The officers said they entered only after knocking and hearing no response. Banks claimed that he was in the shower when the police arrived and heard nothing until they battered down his door. On appeal, he argued that police had waited an unreasonably short time before entering by force, in violation of his Fourth Amendment rights and 18 U.S.C. 3109. Rejecting that argument, the high court reasoned that the longer a suspect delayed in opening the door after a police knock, the greater the exigency for police to enter, lest the suspect dispose of incriminating evidence. Writing for the court, Souter said, “it is enough to say that the facts known to the police are what count in judging reasonable waiting time.” EMPLOYMENT LAW Unanimously vacating another 9th Circuit ruling, the justices faulted the appellate panel for applying a disparate impact analysis to a disparate treatment claim brought by a recovered drug addict who had sued his former employer for discrimination after it declined to rehire him. Raytheon Co. v Hernandez, No. 02-749. Having tested positive for cocaine use, Joel Hernandez was compelled to resign from his position with Raytheon because he had violated workplace conduct rules. Two years later, after undergoing rehabilitation, Hernandez applied for a job with Raytheon but was rejected under the company’s rule against rehiring workers who are fired for misconduct. The Raytheon employee reviewing Hernandez’s application did not know he had been an addict. Hernandez sued under the Americans With Disabilities Act (ADA), initially raising just the disparate treatment claim, then belatedly claiming disparate impact, too. [Disparate impact claims arise when an employer treats some people less favorably than others because of a protected characteristic. Liability depends on whether the protected trait actually motivated the employer's action. Disparate treatment claims arise when facially neutral employment practices fall more harshly on one group than another and cannot be justified by business necessity.] While the 9th Circuit ruled that the disparate impact claim was time barred, according to the Supreme Court, the lower court incorrectly applied that standard in finding that Hernandez had a valid disparate treatment claim. The high court explained that, while both theories are cognizable under the ADA, Hernandez was limited to arguing that Raytheon had refused to hire him because it regarded him as disabled. The justices found that Hernandez failed to overcome Raytheon’s argument that its no-rehire policy was neutral and nondiscriminatory. Thomas wrote the court’s opinion. Souter and Breyer did not participate in the decision. CRIMINAL PRACTICE On Dec. 8, the court agreed to hear arguments on whether, in order to show that a violation of Fed. R. Crim. P. 11 constitutes reversible plain error, a defendant must demonstrate that he would not have pleaded guilty absent the violation. United States v. Benitez, No. 03-167. Carlos Dominguez Benitez pleaded guilty to drug possession and distribution charges. The trial court rejected the plea’s sentencing recommendation, but did not tell Benitez that he could not withdraw his plea. On appeal, the government argued Benitez should have to prove he would not have pleaded guilty if he’d known he would not get leniency. The 9th Circuit said the judge’s error was reversible.

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