This month, the Court will consider a wrongful death claim involving a cross-border shooting by a Border Patrol agent, arbitration agreements in the context of alleged wrongful death of nursing home residents, and sex offender laws in immigration and free speech contexts.
Tuesday, Feb 21
A tragic case made more politically interesting in the context of current US-Mexico tensions is up first today, in Hernández v. Mesa. A 15 year-old boy was shot and killed by a US Border Patrol agent. The agent fired from US territory, but the boy was in Mexico. That much is undisputed; the parents say he was playing a game that involved touching the fence and running back, while the agent says this was part of an illegal border crossing that involved a group throwing rocks at agents. But the Court will decide only whether this dispute can get as far as trial: does the 4th Amendment apply to use of force under these circumstances, and can the parents bring a suit like this? A through description of all the legal issues is available here.
McLane Co v. EEOC is a more procedural issue without much suspense. Federal courts enforce or quash (cancel) subpoenas issued by federal agencies like the EEOC. All but one Circuit court decides based on whether the EEOC abused its discretion (which is deferential toward the agency), but the 9th does so based on de novo review (its own original determination, with no deference to the agency). Interesting arguments on both sides are described here.
Wednesday, Feb 22
The Court hears only one case today, involving arbitration agreements, which have been the subject of much controversy recently. Historically, the Court has held that the Federal Arbitration Act serves as a very serious obstacle to any state laws that would restrict the enforceability of arbitration agreements. Kindred Nursing Centers v. Clark involves deceased residents of a nursing home whose “principals” (individuals who held their power of attorney) sued the home for for wrongful death, personal injury, and violations of certain Kentucky laws protecting nursing home residents. The home sought to dismiss the cases based on the mandatory arbitration agreement those principles had signed on behalf of the residents, but the Kentucky Supreme Court held that they lacked authority to enter the arbitration agreement because the right to a jury trial and to appeal to higher courts are fundamental constitutional rights that cannot be waived absent express authority to do so. A thorough discussion of the case is available here.
Monday, February 27
The Court takes on sex offender laws in two cases today, in immigration and free speech contexts.
The question in Esquivel-Quintana v. Sessions is: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.
In Packingham v. North Carolina, the issue is: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”