SCOTUS Rules for Inmates in Method-of-Execution Case

In Nance v. Ward the U.S. Supreme Court held 5-4 that a capital inmate may bring a method-of-execution case under 42 USC §1983 rather than federal habeas even  when the alternative method proposed isn’t allowed under state law. The holding of this case benefits inmates because the habeas statute contains procedural requirements §1983 lacks which may require dismissal of a claim.

Supreme Court precedent allows death row inmates to challenge a state’s proposed method of execution under the Eighth Amendment. The inmate must “identify a readily available alternative method of execution that would significantly reduce the risk of severe pain.” He or she may propose a method used in other states. If the alternative method proposed is already authorized under state law the Court has held the inmate may bring his or her claim under §1983.

Michael Nance was sentenced to death for shooting and killing a bystander while fleeing from a bank robbery. He claims that lethal injection will create a substantial risk of severe pain for him and has proposed that he be executed by firing squad. Georgia only allows capital inmates to be executed by lethal injection; four other states allow execution by firing squad.

The Supreme Court has previously held that an inmate must proceed to habeas and may not bring a §1983 case when the relief sought would “necessarily imply the invalidity of his conviction or sentence.” According to Justice Kagan, writing for the Court, Nance may bring his case under §1983 even though Georgia law doesn’t allow the firing squad because he isn’t seeking to invalidate his sentence.

In Nelson v. Campbell (2004) and Hill v. McDonough (2006) the Court held that method-of-execution claims could be brought under §1983 where inmates requested that the state use a different lethal injection protocol (not a different execution method). Except for the Georgia statute, the Court reasoned, “this case would even more clearly than Nelson and Hill be fit for §1983” since when those cases were decided the Court had not yet required those challenging the method of execution to identify alternative methods.

The Court reasoned: “The substance of the [method-of-execution] claim, now more than ever, thus points toward §1983. The prisoner is not challenging the death sentence itself; he is taking the validity of that sentence as a given. And he is providing the State with a veritable blueprint for carrying the death sentence out. If the inmate obtains his requested relief, it is because he has persuaded a court that the State could readily use his proposal to execute him. The court’s order therefore does not, as required for habeas, ‘necessarily prevent’ the State from carrying out its execution.”  
This is true even if Georgia must change its law to allow death by firing squad the Court opined. It did admit “amending a statute may require some more time and effort than changing an agency protocol, of the sort involved in Nelson and Hill.”

Justice Barrett dissented joined by Justices Thomas, Alito, and Gorsuch. She opined that Nance is seeking to invalidate his death sentence by proposing a method of execution Georgia doesn’t currently allow. “The Court is looking too far down the road. In my view, the consequence of the relief that a prisoner seeks depends on state law as it currently exists. And under existing state law, there is no question that Nance’s challenge necessarily implies the invalidity of his lethal injection sentence: He seeks to prevent the State from executing him in the only way it lawfully can.”

Public School Football Coach Wins Prayer SCOTUS Case

In Kennedy v. Bremerton School District the U.S. Supreme Court held 6-3 that the First Amendment protects an assistant football coach who “knelt at midfield after games to offer a quiet prayer of thanks.” The Supreme Court also overruled Lemon v. Kurtzman (1971). The State and Local Legal Center (SLLC) filed an amicus brief in this case supporting the district.

The majority and the dissent disagree about the facts of this case. Both sides agree assistant football coach Joseph Kennedy had a long history of praying alone and with students at midfield after football games and praying with students in the locker room pregame and postgame. When directed to, Kennedy stopped the latter practice. But he told the district he felt “compelled” to continue offering a “post-game personal prayer” midfield. The district placed Kennedy on leave for praying on the field after three particular games.

Justice Gorsuch, writing for the Court, concluded Kennedy was able to make the initial showing that the school district violated his free exercise of religion and free speech rights by not allowing him pray on the field after games.

Regarding Kennedy’s Free Exercise Clause claim, the Court concluded the school district burdened his sincere religious practice pursuant to a policy that is neither “neutral” nor “generally applicable.” The district’s actions weren’t neutral because “[b]y its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character.” The district’s actions weren’t “generally appliable” either the Court concluded. While the district stated it refused to rehire Kennedy because he “failed to supervise student-athletes after games,” the district “permitted other members of the coaching staff to forgo supervising students briefly after the game to do things like visit with friends or take personal phone calls.”

Regarding Kennedy’s Free Speech Clause claim, the Court first had to decide whether Kennedy was speaking as a government employee (who isn’t protected by the First Amendment) or as a citizen (who receives some First Amendment protection). The Court determined Kennedy was acting as a citizen. “When Mr. Kennedy uttered the three prayers that resulted in his suspension, he was not engaged in speech ‘ordinarily within the scope’ of his duties as a coach. He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach.”

While the Court would have normally shifted the burden to the school district to defend its actions under the Free Exercise and Free Speech Clauses, the Court didn’t in this case noting that under whatever test it applied the school district would lose.

The district explained it suspended Kennedy because of Establishment Clause concerns namely that a “reasonable observer” would conclude the district was endorsing religion by allowing him to pray on the field after games. In response the Court overturned the so-called Lemon test.

Lemon “called for an examination of a law’s purposes, effects, and potential for entanglement with religion. In time, the approach also came to involve estimations about whether a ‘reasonable observer’ would consider the government’s challenged action an ‘endorsement” of religion.’” In its place the Court stated it has adopted a view of the Establishment Clause that “accor[ds] with history and faithfully reflec[ts] the understanding of the Founding Fathers.” The Court also found insufficient evidence students were coerced to pray.

Michael Dreeben, Ephraim McDowell, and Jenya Godina of O’Melveny & Myers wrote the SLLC amicus brief which the following organizations joined:  National League of Cities, U.S. Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, National Public Labor Employer Labor Relations Association, and International Public Management Association for Human Resources.

Congressional Negotiators Approve Incentives for States to Pass “Red Flag” Laws

By Bill Swinford

In the aftermath of the most recent wave of mass shootings around the U.S. brought to the forefront following the tragedies in Uvalde, Texas, and Buffalo, New York, a bipartisan group of 10 Republican and 10 Democratic U.S. senators reached an agreement on a federal response on June 21.

The proposed legislation includes $750 million for crisis intervention programs, including so-called “red flag” (or “extreme risk”) protective orders. Generally, these statutes allow law enforcement officials, household and family members, and others to petition a judge to issue an order removing firearms from an individual’s possession and/or preventing them from making firearm purchases. The processes fluctuate among the states, but all roughly reflect approaches to domestic violence protective orders. Variation occurs in two primary areas: who can request extreme risk protection orders and how long the orders last.

Recent polling indicates there is broad public support for stricter gun laws in general and more specifically for “red flag” laws. Evidence is inconclusive about whether extreme risk protective orders reduce the number of episodes of gun violence, such as mass shootings. But there is anecdotal evidence from California and New York that crises can be avoided with intervention, especially when stakeholders are trained in effective implementation.

Those critical of “red flag” laws raise concern about protecting the due process rights of individuals subject to such orders. The need for due process in this policy space is substantial since it deals with the Second Amendment’s protection of “the right to keep and bear arms.”

While the current conversation has its genesis in mass shootings, evidence also makes clear that the presence of these statutes reduces rates of suicide. Deaths by suicide account for more than half of all firearm-related fatalities in the U.S. Extreme risk protective order laws in Connecticut and Indiana, for example, were found to substantially reduce these fatalities.

Nineteen states and the District of Columbia have these laws in place. Click on the state to review that legislation:

Variation occurs in two primary areas: who can request extreme risk protection orders and how long the orders last.

There are two types of orders: temporary (e.g., emergency, ex parte) and final. Temporary orders can be granted without notice to the individual said to be at-risk and last no more than 21 days. Final orders generally last six months to one year.

The parameters of due process of orders with longer time frames are debated. A judge’s ability to issue an order is contingent upon a range of standards, from the most lenient (“reasonable cause” in states like California and Washington) to the most stringent (“clear and convincing evidence” in states like Delaware and Illinois). More detail on the legal standards across states can be found here.

More resources for state policymakers include:

Giffords Law Center

Johns Hopkins Center for Gun Violence Solutions

PEW Charitable Trusts

[i] In Connecticut, family and household members and health care professionals can request an investigation, but only law enforcement has the authority to request a protective order.

[ii] In Connecticut, no end date is specified, but and individual can petition for the removal of the order after 180 days.

[iii] Indiana has two orders: warrant (lasts 180 days after issuance) and warrantless (lasts 180 days after court order).

[iv] In Colorado, the final order is for “364 days”.

[v] In Maryland, only family and household members can petition for a final order.

[vi] In Oregon, only a final order is available.