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Conference Call summarizes the roughly 15 percent of all nonpauper petitions that are the most likely candidates for certiorari. It is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of nonpauper petitions. The firms then prepare the summaries of the cases. If either firm is involved in a case mentioned in this column, that will be disclosed.
In the 1995 case Arizona v. Evans, the Supreme Court, by a vote of 7-2, upheld the search of a motorist mistakenly arrested after the local courthouse failed to inform the sheriff’s department that a previous arrest warrant had been quashed. In a concurring opinion, however, three justices — Sandra Day O’Connor, David Souter and Stephen Breyer — reserved the question of whether the “exclusionary rule” should apply if a mistaken arrest occurs due to the negligence of law enforcement, rather than judicial, personnel. Nearly 13 years later, the justices have the opportunity to take up that question when they convene for their private conference on Feb. 15. The Court could announce a decision as soon as Feb. 19. (The petition is No. 07-513, Herring v. United States. Disclosure: Tom Goldstein is co-counsel to the petitioner.) The arrest in question occurred in Alabama in July 2004, shortly after Bennie Herring left the Coffee County sheriff’s department, where he had gone to retrieve personal items from an impounded vehicle. As Herring was about to leave, a county investigator named Mark Anderson arrived for work. On a hunch, Anderson, who had a contentious history with Herring, asked a fellow employee to check whether Herring had any outstanding arrest warrants in the county. He had none. At Anderson’s request, the employee next called to see if Herring had outstanding warrants in neighboring Dale County. By phone, an employee in the Dale County sheriff’s department said computer records showed that Herring was in fact wanted for failing to appear on a felony charge. Anderson and a deputy sheriff immediately left in pursuit of Herring. They pulled him over and, over Herring’s protest, placed him in custody. Conducting a search incident to the arrest, the officers discovered methamphetamine in Herring’s pocket and a gun under the front seat. Minutes later, after being unable to find a physical copy of the arrest warrant, the Dale County employee called back to say she had been mistaken. Herring’s warrant had been recalled five months prior, but the sheriff’s department had failed to update its computer records. At trial in the U.S. District Court for the Middle District of Alabama, the judge denied Herring’s motion to suppress the evidence and, following conviction by a jury, sentenced him to 27 months in prison. A panel of the U.S. Court of Appeals for the 11th Circuit unanimously affirmed. Noting that the exclusionary rule was created to deter police misconduct, rather than to remedy victims of unlawful searches, the panel found that courts should only suppress illegally obtained evidence when doing so could “result in appreciable deterrence” of future police misconduct. While conceding that Herring’s arrest violated the Fourth Amendment, the panel concluded that law enforcement already has sufficient incentives to keep criminal databases accurate. As examples, the panel listed authorities’ interests in avoiding internal reprimands, civil liability for wrongful arrests, and the potential hindering of one of their own probes. The panel also reasoned that suppressing the evidence against Herring would foil the work of the department that made the arrest, not the one that provided the faulty data. Herring’s petition for certiorari, filed by Jeffrey Fisher of the Stanford Law School Supreme Court Litigation Clinic, maintains that courts have been divided over the question since even before the Court left it unanswered in Evans. According to Fisher, some courts have found that the “good faith” exception to the exclusionary rule should apply to all inadvertent clerical errors, while others have suppressed evidence from searches made due to law enforcement negligence. Pointing to a factually similar case decided by the Arkansas Supreme Court, Fisher asserts that suppression would further “the need to deter �defective recordkeeping’ by law enforcement as a whole.” Fisher also questions the assumptions underlying the 11th Circuit’s ruling. The petition says that it’s unclear whether the responsible employees were disciplined for Herring’s mistaken arrest, that officers acting on misinformation would likely receive qualified immunity in a civil lawsuit, and that negligent record-keeping is not itself grounds for suit. Also, Fisher contends, the 11th Circuit’s ruling actually gives authorities an incentive not to remove individuals from databases if arrest warrants are recalled. By contrast, the petition says, if prosecutors were “[f]aced with the possibility of exclusion, police departments [could] reasonably be expected to step up their efforts to keep computer records up-to-date and accurate.” Opposing certiorari, the federal government maintains that the 11th Circuit’s ruling extends not to all negligent errors committed by police personnel, but only to those where law enforcement agencies that normally maintain accurate records inadvertently provide erroneous information to another agency. In such narrow circumstances, Solicitor General Paul Clement contends, courts may justifiably conclude that the costs of excluding illegally obtained evidence outweigh the benefits. Clement maintains that arrests made under invalid warrants waste resources, and that police departments, like private employers, uniformly insist upon proper record-keeping. As for civil liability, the government contends that police officers are never guaranteed to receive qualified immunity, and municipalities may in fact face suit when errors result from official policies. In any event, punishing one law enforcement agency for the mistake of another would hardly serve as an effective deterrent for future errors, Clement says. — Ben Winograd
Other cases up for review include the following: • 07-515, Carpenter v. United States (1st Circuit) Whether, under the double jeopardy clause, if the government immediately appeals an order granting a new trial, the defendant may immediately appeal the sufficiency of the evidence at the original trial. • 07-544, Chrones v. Pulido (9th Circuit) Whether an erroneous jury instruction involving an element of a crime should be subject to structural or harmless-error review. • 07-575, Perry v. Stevenson (3rd Circuit) Whether, under the due process clause, prison officials must provide an explanation and opportunity to respond before transferring inmates awaiting resentencing to a more restrictive cell block. • 07-581, 14 Penn Plaza LLC v. Pyett (2nd Circuit) Whether an arbitration clause in a collective bargaining agreement waiving employees’ right to file statutory discrimination claims is enforceable. • 07-606, John Carlo Inc. v. Chao (11th Circuit) Whether a corporation may be held liable for a willful violation of the Occupational Safety and Health Act based on a knowing violation by a supervisor. • 07-610, Locke v. Karass (1st Circuit) Whether a public sector union may include in nonmembers’ agency fees costs for litigation outside the bargaining unit. • 07-615, Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (9th Circuit) Whether a disputed judgment against a military contractor at issue between Iran and the United States before the Claims Tribunal in The Hague is subject to attachment under the Victims of Trafficking and Violence Protection Act. • 07-618, Goss International Corp. v. Tokyo Kikai Seisakusho (8th Circuit) Whether a federal district court has “ancillary” subject matter jurisdiction to issue an anti-suit injunction barring foreign litigation. • 07-623, Ford Motor Co. v. City of Seattle (Supreme Court of Washington) Whether, under the dormant commerce clause, a city may tax receipts derived in part from within the city and in part from other states. • 07-651, Entergy Corp. v. Jenkins (Court of Appeals of Texas) Whether a state court may determine whether the bulk power supply arrangements of an interstate power pool, governed by a Federal Energy Regulatory Commission tariff, violate state tort law. • 07-653, Norris v. Simpson (8th Circuit) Whether a capital defendant may raise a mental retardation claim for the first time on habeas if state proceedings became final before the Court’s decision banning execution of the mentally retarded in Atkins v. Virginia (2002). • 07-683, Schriro v. Lopez (9th Circuit) Whether, under the Antiterrorism and Effective Death Penalty Act, the defendant exhausted his ineffective-assistance-of-counsel claims in state court. • 07-699, Five Star Parking v. Union Local 723, International Brotherhood of Teamsters (3rd Circuit) Whether, under the National Labor Relations Act, an employer’s ability to impose its final wage offer after the parties reach impasse at the bargaining table may be subject to arbitration. • 07-752, Novolog Bucks County v. CSX Transportation (3rd Circuit) Whether, under the Interstate Commerce Commission Termination Act, a transloader that accepts delivery of freight is automatically liable for demurrage charges under a rail carrier’s tariff. • 07-806, Philip Morris USA Inc. v. Accord (Supreme Court of West Virginia) Whether, under the due process clause, defendants’ liability for punitive damages in a mass tort trial may be adjudicated prior to a finding of compensatory liability.

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