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CRIMINAL JUSTICE | SUMMER 2021
cert alert
Published in Criminal Justice, Volume 36, Number 2, Summer 2021. © 2021 by the American Bar
Association. Reproduced with permission. All rights reserved.This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database
orretrieval system without the express written consent of the American Bar Association.
ANTHONY FRANZE is a lawyer in the Appel-
late & Supreme Court practice at Arnold & Porter, a
regular commentator on the high court and appellate
law, and a critically acclaimed novelist.
At the time
this column
went to
print, the Su-
preme Court had
issued opinions in
just over half of
its criminal law–
related cases for
the 2020-21 term.
In this edition,
we focus on two of those decisions, both with
unusual facts and both with broader implications
for pressing issues of our times: police violence
and immigration.
In Torres v. Madrid, a closely watched Fourth
Amendment case, the question presented was
“whether a seizure occurs when an officer shoots
someone who temporarily eludes capture after
the shooting.” In a 5-3 opinion written by Chief
Justice John Roberts, the Court held, “the
answer is yes: The application of physical force
to the body of a person with intent to restrain is
a seizure, even if the force does not succeed in
subduing the person.”
Michael Dreeben, one of the country’s lead-
ing Supreme Court advocates and experts in
criminal law, said, “Torres accords with common
sense: when the police wound a suspect through
gunfire, the Constitution takes hold even if the
suspect escapes.” Still, the question divided the
Court. As renown scholar Professor Dan Epps
noted, though the holding in Torres “comports
with common sense and intuitions of fairness,”
the case “presented real difficulties in regard
to textual interpretation and history—concerns
that caused some of the more originalist-leaning
justices, Justices Thomas and Gorsuch, to vote
against the plaintiff despite their usual fondness
for Justice Scalia’s jurisprudence.” The ruling,
Epps said, “preserves an avenue for constitu-
tional redress in police shooting cases presenting
similar facts. More generally, though, it suggests
that pragmatism may continue to hold sway over
strict formalism in constitutional interpretation at
the Court.”
Dreeben added, “the holding sends an unmis-
takably modern message: police shootings—an
all-too-frequent contemporary occurrence—are
governed by the Fourth Amendment.”
In Pereida v. Wilkinson, another 5-3 decision,
the Court held that noncitizens seeking relief
from deportation have the burden of showing
that they have not been convicted of a disquali-
fying criminal offense. Under the Immigration and
Nationality Act, noncitizens subject to deporta-
tion who have a long history in the United States
and close relatives who are U.S. citizens or lawful
permanent residents are eligible to apply for
a benefit that would cancel their deportation
based on hardship to these relatives. But this
benefit is unavailable to individuals who have
been convicted of a “crime of moral turpitude.”
The Court held that noncitizens cannot meet
their burden of showing eligibility when their
criminal record is unclear on whether they were
convicted of a crime that disqualifies them from
relief.
Professor Kate Evans, a prominent scholar and
director of the Immigrant Rights Clinic at Duke
law school, said that “the ruling creates new
complications for noncitizens who have been
convicted under statutes that can be divided
into offenses that disqualify them for immigration
relief alongside offenses that do not. The prob-
lem for Mr. Pereida was that his court record
did not demonstrate which offense, within a
divisible statute, he was convicted of. The Court,
therefore, concluded that he could not meet
his burden of proof to demonstrate he was not
disqualified from deportation relief.” As for the
practical import of the decision, Evans said that
“immigration counsel and defense counsel will
face additional demands to work together to
ensure that criminal court records preserve eligi-
bility for relief from removal through careful plea
agreements going forward and post-conviction
relief for those now facing the impact of Pereida
on convictions in the past.”
Below are the other criminal law–related cases
of the term, and new cases added to next term’s
docket.
CRIMINAL LAW OPINIONS AND CASES SET
FOR ARGUMENT TO DATE
Opinions as of June 3, 2021
Military Justice—Statute of Limitations
United States v. Briggs, No. 19-108
by ANTHONY FRANZE
Supreme
Court Cases
of Interest
