Courthouse Steps Decisions: Lozman v. Riviera Beach/Chavez-Meza v. U.S.

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On Tuesday, June 19th, 2018, the Supreme Court handed down two decisions in Lozman v. Riviera Beach, and Chavez-Mendez v. United States

In Lozman, the Court vacated the appelate court's ruling and remanded. In a majority opinion authored by Justice Kennedy, the Court held probable cause did not necessarily defeat a First Amendment retaliatory arrest claim. Justice Thomas wrote the lone dissent. 

In Chavez-Mendez, the Court decided 5-3 that because the lower court judge had a reasoned basis for his decision, the judge's explanation for reducing Chavez-Meza's sentence under 18 U.S.C. section 358(c)(2) was permissible. 

Matthew Wilkins joins us to discuss the decisions and their implications


Matthew Wilkins, Law Clerk, United States District Court of the District of Columbia 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Tuesday, June 19, 2018 during a live Courthouse Steps teleforum conference call held exclusively for Federalist Society members.


Mr. Micah Wallen:  Welcome to The Federalist Society teleforum conference call. This afternoon our conversation is on the Lozman v. Riviera Beach decision and the Chavez-Meza decision, which was released yesterday. My name is Micah Wallen and I am the Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the expert on today's call.   


      Today, we are happy to have with us, Matthew Wilkins, who is a Law Clerk for the Honorable Royce C. Lamberth on the United States District Court for the District of Columbia. After hearing from Matthew, we will go to audience Q&A. Thank you for speaking with us, Matthew. The floor is yours.


Mr. Matthew Wilkins:  Thank you, Micah. Good morning, everyone. Like Micah said, we actually have two cases to discuss today. They don’t really share anything in common in terms of the facts underlying them or even the aspects of criminal law underlying the decisions. But they do have something that brings them together, which is that in both cases, the Court refused to adopt either side's position and instead, well, made extremely narrow holdings cabined by the facts of the particular cases. So we'll have to go over facts today in more detail than perhaps usual. But there are still some good general insights to be gleamed from these cases, and I look forward to hearing your questions about them come time.


      Our first case is Lozman v. City of Riviera Beach, Florida. The question in this case was whether a finding that an arrest was supported by probable cause necessarily defeats a First Amendment retaliatory arrest claim. The Court's answer was no, but only in cases very, very much, if not exactly like Mr. Lozman's. So the applicability of the holding might be quite narrow.


      The facts of the case were like this: in 2006, the City of Riviera Beach had a plan to use its imminent domain powers to seize homes along the waterfront of the city for private development. Mr. Lozman had recently moved into the area and, to put it lightly, he opposed the plan. He was an absolute thorn in the city's side. He attended more than 200 city council meetings where he commented as vigorously in opposition of the plan. He frequently criticized the mayor, the council members of the city council, and any other public employee that he encountered. And he even filed a lawsuit against the city alleging that their approval of an agreement with private developers violated Florida's open meeting laws. I don't think it's an overstatement to say at that point that Mr. Lozman was not really the city's favorite person.


      Which brings us to a closed-door meeting held by the city council in June 2006. The meeting was closed-door, but was later transcribed under Florida's laws. In any case, the meeting was held in part to discuss Mr. Lozman's lawsuit against the city. Now, depending on who you ask exactly what happened at this meeting differs drastically. If you ask the city, all that happened was the council members agreed that they were going to pour all of the money and resources necessary into the lawsuit Mr. Lozman brought so that they would win it. If you ask Mr. Lozman, though, the meeting was a bit more nefarious.


      Specifically, Ms. Elizabeth Wade, one of the city council members, suggested to the rest of the council that they use city resources to intimidate Mr. Lozman, or otherwise dissuade him and others from further opposing the redevelopment plan. And the other council members agreed to this.


      Regardless of how you characterize the meeting, though, over the next couple of years a number of incidents happened that persuaded Mr. Lozman that there was an organized plan in place to retaliate against him for his speech against the city. And one of those incidents gave rise to this suit. At one of the public city council meetings, Mr. Lozman stepped up to the podium, like he was wont to do, to address the council, and he started talking about the arrest of a former county official who was arrested for corruption. He was stopped by Ms. Wade—and if you remember that was the same council member who had the idea of intimidating him in the first place according to Mr. Lozman—and Ms. Wade told him that the city council had a policy of only letting persons comment on city matters, not county matters. The county doesn’t count, only city.


      So Mr. Lozman changed tactics and started speaking of another public official's arrest for corruption in the neighboring city of West Palm Beach. At that point, Ms. Wade asked the police officer in attendance to intervene and remove Mr. Lozman. Mr. Lozman refused to leave the podium, and then Ms. Wade told him to carry Mr. Lozman out. So the officer arrested Mr. Lozman, put him in handcuffs and forced him out of the meeting.


      And, by the way, I've got to say this whole event is recorded. Justice Kennedy includes a link to the video in his majority opinion and I'd encourage all of you to go watch it because Mr. Lozman really was quite the gentlemen throughout this whole affair. He never raised his voice. He never got angry. He never threatened anybody.


      But regardless, while he was under arrest, Lozman was charged with disorderly conduct in resisting arrest and released from custody. But the State's attorney, despite concluding that there was probable cause to arrest him, decided to dismiss the charges because a conviction was unlikely. Mr. Lozman was not content merely to have the charges against him dropped, though, and instead he sued the city for damages under Section 1983. He brought a lot of causes of actions specifically, but the one that matters to this case is that the brought a retaliatory arrest claim, claiming that the arrest was actually motivated by the city's animus against him for his protected First Amendment speech.


      Mr. Lozman lost at trial, specifically in part because the jury found that there was probable cause to arrest him, not for any of the offenses for which he'd been arrested, but for another offense that the City of Riviera Beach only mentioned for the first time during the middle of the trial. In any case, though, the judge instructed the jury that if finding of probable cause necessarily defeated the retaliatory arrest claim, so Mr. Lozman lost. On appeal, the Eleventh Circuit affirmed that decision, and then the Court granted cert to decide the issue.


      So in an 8-1 opinion offered by Justice Kennedy, the first thing that the Court said was that its decision was a narrow one. Like I said earlier, both of these cases are circumscribed by their specific facts and intentionally so. And Mr. Lozman, in fact, did some of the circumscribing himself in order to turn his case into a good vehicle to address this question. He conceded or waived a couple of issues. For example, let me see in the case here, he didn't challenge, for example, the constitutionality of the statue for which probable cause of a violation was found. He didn't challenge the city's switcheroo in the middle of trial, changing the statute that it said he violated. He didn't challenge the validity of the city council's alleged policy limiting the subject matter on which members of the public could speak at their meetings. And then, he actually conceded that there was probable cause to arrest him for something at the meeting. And having conceded that, the only remaining challenge was whether that arrest with probable cause was lawful given the alleged retaliatory animus that the city had towards him.


      So Justice Kennedy's opinion framed the issue as a question of which of two precedents the Court should apply to the case. Lozman urged one, the city urged the other. And Lozman urged the Court to apply the test that was set out in Mt. Healthy City Board of Education v. Doyle. Putting it really simply, glossing over some of the intricacy, that case held that there can be no liability, at least in tort, for an alleged constitutional violation unless the plaintiff can show that the violation is a 'but-for' cause of the complained injury.


      So putting that in terms of this case, to win Mr. Lozman would have to show that but-for either Councilperson Wade's or the city's animus against him for his lawsuit for his protected speech that he wouldn't have been arrested. When you're doing this analysis, according to Mr. Lozman, probable cause for the arrest is relevant. But it's not an absolute bar to bringing suit. There's a lot of cases where there's probable cause to arrest somebody, but police don’t arrest the person. The question that Mr. Lozman said was, "Does the protected speech and retaliation push the issue, push it over the edge, such that it was really retaliation that motivated the arrest rather than the probable cause."


      City did not like that test and instead urged the Court to apply a test from Hartman v. Moore, which was a case in which the Court held that a finding of probable cause did absolutely bar a claim for retaliatory prosecution. Not retaliatory arrest, but retaliatory prosecution. To put it in the negative, under Hartman a plaintiff has the affirmative burden of showing that there was no probable cause—or whatever the underlying criminal charge was—in order to bring a retaliatory prosecution claim based on First Amendment retaliation. And the city argued that retaliatory arrest is at least similar enough to retaliatory prosecution to justify imposing the same rule.


      And the majority found that persuasive. They did. Justice Kennedy mentioned that both arrests and prosecution claims posed difficulties in establishing causal connections between any alleged animus on the part of the dissident and the plaintiff's injury. And further, in the typical case, Justice Kennedy said it's desirable, perhaps even necessary, for a police officer to take speech into account when deciding to arrest somebody. Someone who's standing on a soapbox, you know, screaming about the revolution while the city is burning down around them, well, maybe you're going to arrest that guy first. Justice Kennedy and Justice Breyer at oral argument both made very clear that they wanted to find a way that protects police officers in those run-of-the-mill cases where they do take speech into consideration when deciding whether to arrest somebody from this case, perhaps, where the facts seem less favorable to the city.


      But in any case, the line that the Court drew was one so close to Mr. Lozman's case that it's arguable that Mr. Lozman is the only case that could be permitted. If you take Justice Thomas's dissent seriously, even Mr. Lozman might not be able to meet the test. But the Court found that in this case, and really in this case only, the Court said that the test from Mt. Healthy should apply. And it pointed to several factors being the reason for this.


      The first and probably the biggest is that Mr. Lozman didn’t actually sue a police officer in this case. So in the run-of-the-mill retaliatory arrest case, someone gets arrested and they sue that police officer saying the police officer was arresting the person for their protected speech. That's not what happened here. Mr. Lozman sued the City of Riviera Beach because its councilperson's animus is what actually caused the arrest. There's no indication here whatsoever that the officer who actually arrested him had any animus or even knew about his prior speech. That's a big difference.


      The next factor that the Court considered was another implication of what happens when you sue the city rather than a police officer, which is that cities can't claim sovereign immunity. They can be liable for Section 1983 claims, but on a narrower basis than usual. When you have a Section 1983 claim against a police officer, even barring sovereign immunity, the only question is did this police officer in this particular arrest act with retaliatory animus with regards to my First Amendment protected speech? This case is different, though, because a city, to be held liable under Section 1983, needs to be shown to have had and acted pursuant to an official municipal policy. So Mr. Lozman wouldn't have to show -- or Mr. Lozman has to show not only that Ms. Wade had animus in that case, but that the city had an official policy of retaliating against him, thanks to his speech.


      The Court also considered that the speech in question here, all of the criticism of the city's plan, had next to nothing to do with the actual arrest. Nothing about disorderly conduct had to do with his speech. And then the Court considered that it wasn't even mere "speech." I put that in quotation marks. Instead, Mr. Lozman's speech involved the right to petition one's government, which the Court called "one of the most precious of the liberties safeguarded by the Bill of Rights."


      Putting all of this together, Justice Kennedy writes that "on facts like these"—and what are these facts? Situations where the plaintiff is suing a municipality, not an individual police officer; where the plaintiff has the need of showing an entire policy of retaliation, and that it can do so, rather than just an individual instance of retaliation; where the First Amendment right to petition is at state, not just general speech, among others—on facts just like these, "Mt.  Healthy provides the correct standard for assessing a retaliatory arrest claim." So even if there was probable cause for arrest Mr. Lozman, it shouldn't bar his claim. And so, the Court said that it need not and did not address whether probable cause would bar retaliatory arrest claim than any other factual circumstance.


      So what do we make of that? The first thing we can realize is that that's very narrow. As Justice Thomas puts it in his dissent, he's not sure there'll be many cases, if any, that in fact meet all of these circumstances. If you want to read between the lines, though, I do think it's possible to look at the Court's majority statements that the city's arguments were powerful and persuasive when they were saying that Hartman and the standard applied in retaliatory prosecution is more analogous to the run-of-the-mill retaliatory arrest claim. Using that as guidance, courts going forward might be more likely to use probable cause as a bar to retaliatory arrest claims, even when First Amendment concerns are at stake in a shall we call it a run-of-the-mill case.


      That said, we don't know. If we're going to cover Justice Thomas' dissent briefly, his primary criticism is that the Court didn't actually answer the question given to it. There's a split over whether probable cause in a run-of-the-mill retaliatory arrest claim should bar the claim. And the Court doesn't answer that. The only thing the Court answered is that if you have a case just like this one, the answer's no, as an answer for the rest of the cases. Justice Thomas said that he would've decided the simple question and said, "Yes, in all cases, if there's probable cause for the underlying arrest, there is no case to be made for retaliatory arrest." And he based that after going through the common law tradition of the three common law torts that were based on false arrests or something similar to there too, specifically false imprisonments, malicious prosecution, and malicious arrest. And according to his analysis, all three of these torts at common law, required a plaintiff to show that there was no probable cause to the underlying arrest. And he would've imported that same requirement into Section 1983 because the Section 1983 claim is, at its heart, a tort claim.


      So we will not go into question and answer quite yet. I discussed it with Micah before the call began. We're going to discuss both cases before moving on. So that's Lozman.


      Moving onto Chavez-Meza then. This is another case dealing with resentencing under 18 U.S.C. Section 3582, which is when the sentencing guidelines for a particular sentence are lowered. In that case, when the sentencing guidelines are lowered for a particular offense and if the Sentencing Commission makes that lowering retroactive, persons who were sentenced under the older, higher guidelines can petition the court to have their sentences lowered in the new guidelines. And there's been actually a couple cases in the Supreme Court this term dealing with questions under the Section, Hughes v. United States dealt with it, Koons v. United States dealt with it. But the specific question in Chavez-Meza dealt with how much explanation does a judge need to give in a 3582 resentencing for it to be upheld on appeal and reviewed on appeal? And so the facts of this case were these—and actually, before we get into the specific facts, I think it might be useful to review some basics about the sentencing guidelines.


      I gather that most of the people on this call are already familiar with them, but there might be some people who aren't. So we'll just review them briefly. In order to promote uniform and rational, criminal sentencing, the U.S. Sentencing Commission releases guidelines for the judges to use. These guidelines take certain characteristics of the offense committed and certain characteristics of the offender and assigns values to those characteristics. These values go into a table, which then provides a suggested range for a sentence based on those characteristics expressed in terms of months. So for an offender with no criminal history who commits a minor offense, the guidelines might recommend a small sentence of between 1 and 6 months or maybe even no jail time at all. And for an offender with a long criminal history who commits a serious offense, the guidelines may recommend a sentence of 360 months or 30 years to life in prison. And there's a whole spectrum in between.


      And so, the purpose of these guidelines is to try to promote some level of uniformity, consistency, and like I said, rationality in sentencing, both between multiple defendants sentenced by a single judge to make sure that the judge's bias isn't influencing him so that perhaps African American descendants are getting higher sentences than Caucasian descendants. But also between judges across the federal judiciary so that the hanging judges in Texas aren't giving overly burdensome sentences, while a more lenient judge in California is letting someone who commits the same type of crime off for much less.


      So these guidelines used to be mandatory. That's no longer true. A judge may vary from them under certain circumstances. But no matter the case, in all cases a sentencing judge is required to take into account the statutory factors listed in 18 U.S.C Section 3553(a) when he sentences somebody. And one of those factors is, actually, the sentencing guidelines. In addition to taking those factors into consideration, a judge in an original sentencing procedure is required to state in open court the reasons for its imposition of the particular sentence. And that's in 3553 subsection (c).


      Now, subsection (c) provides an extra little quirk. When a court imposes a sentence within the guidelines, if the difference between the bottom of the guideline range and the top of the guideline range is more than 24 months…so let's say, for example, that a guideline range says that for this particular defendant in this particular crime, the sentence should be between 135 and 168 months. There's a 33-month difference between the top and bottom. Because that's greater than 24, the judge is required by statute to state on the record in open court the reasons why the judge is giving an offender a sentence at a particular point within that range, be it the bottom, be it the middle, be it the top. And so, with that background, we can go onto the facts of Mr. Chavez's case.


      So Mr. Chavez pleaded guilty to possession of methamphetamine with the intent to distribute. And the guideline range for his sentence under the guidelines at that time, was 135 to 168 months. Now, when he was sentenced he asked the judge to vary from the guidelines and to give him a lower sentence. The judge in open court on the record—doing everything the statute requires him to do—rejected that request. And he cited his reasons for this, the severity of the crime, the quantity of methamphetamine in his possession—a little less than four pounds, which I don't have a lot of experience with methamphetamine personally, but I hear that's a lot—and this other 3553(a) factors. And so, taking all of that into consideration, the judge determined that the guideline sentence was appropriate and specifically considering those factors, he said that the bottom of the range was appropriate. So he sentenced Mr. Chavez to 135 months in prison, the very bottom of the guideline range. And up until this point, all is well. There's no challenges, the judge did everything correctly. Not a problem.


      The problem came when we fast forward a little bit and the Sentencing Commission lowered the guideline range for the crime to which Mr. Chavez pleaded guilty. The old guideline range had been 135 to 168 months, but the new range was 108 to 135. The Sentencing Commission also recommended making this change retroactive. That being the case, Mr. Chavez did what he rightfully may do and ask the court to lower the sentence to conform with the new guidelines. So specifically he asked for a 108-month sentence, the bottom of the new guidelines. The reasoning goes kind of like this, "Judge, last time you sentenced me, you determined using the 3553(a) factors that I'm a bottom-of-the-range kind of guy. So you gave me 135 months, the bottom of the old range. And since I'm a bottom-of-the-range kind of guy, you should lower my sentence now to 108 months, the bottom of the new range." The judge considered this and did lower his sentence, but only to 114 months, not 108, which puts him in the middle of the new guideline range.


      So why did the judge do this? Well, the explanation at the resentencing was really quite perfunctory. There's a form—AO 247—and this form has a checkbox that the judge can check and the text after that checkbox says that the judge took into consideration the 3553(a) factors and took the guidelines’ policy statements into account and that he considered the motion and that was it. The judge checked that box, wrote 114 months of the new sentence and off he went.


      So Mr. Chavez sues and says that this explanation is inadequate. The Tenth Circuit affirmed him and yesterday in a 5-3 opinion, offered by Justice Breyer joined by the rather unorthodox combo of the Chief Justice and Justices Ginsburg, Thomas, and Alito, the Court affirmed the Tenth Circuit's finding. But not on the same ground, necessarily. The question that the Supreme Court certified and that it was supposed to answer was what level of reasoning must a judge give when it resentences an offender pursuant to 3582?


      The parties understandably took drastically different approaches to that question. The government argued that the judge actually need not give any explanation at all at the resentencing. The reason for this is that the requirement that a judge provide reasons in open court on the record for an original sentence is a statutory requirement. It comes from Section 3553(c). But 3553(c) doesn't govern these resentencings pursuant to lower guidelines. That's governed by Section 3582. And 3582 doesn’t have a similar requirement. That being the case, the government said look at the difference. 3553 requires statements of reason. 3582 doesn't. So Mr. Chavez shouldn't complain. His sentence got lowered. He shouldn't be able to ask for more and he can't ask for more reasoning.


      Mr. Chavez disagreed. He argued that the necessary explanation—the amount of reason behind it—depends on whether a sentence reduction is proportional. So what does proportional mean? Well, proportional in this case means if I got a sentence at the bottom of the old guideline range, I should get a sentence at the bottom of the new guideline range. If I got one at the top of the old range, I should get one at the top of the new range. That's proportional. So in this case, Mr. Chavez got a 135-month sentence under the old range. That's the very lowest sentence under that range. A proportional sentence then would be the very lowest sentence under the new range, 108 months. And when a judge does a proportional resentencing, Mr. Chavez said, we don’t need any more explanation.


      What's the reason? Well, at the original sentencing, the judge explains his reasons, why he put me at a particular place within the sentencing guideline range. I'm a bottom-of-the-range kind of guy for the reasons given in 3553(a). The judge said that in open court. So if the judge puts me at the bottom of the new guideline range, it's simple. I'm a bottom-of-the-range kind of guy. Same reason the judge gave last time. But if the judge doesn't give a proportional reduction, Mr. Chavez argued, you got to give something more. And the reason for this is if under the original sentencing, I was a bottom-of-the-range kind of guy, but I'm now a middle-of-the-range kind of guy, well, the old reasoning under the old sentencing can't support that. You need to give some new reasoning that explains why I shouldn't be at the bottom of the range any longer. And this little form that you checked the box on and signed doesn't give any reason. And so, there's no good basis for appellate review.


      So the majority did what seems to have been the trend yesterday and adopted neither approach. Instead, it rejected them both explicitly saying that it didn't need to reach the government's argument of saying that no explanation was required, but also saying that in certain circumstances a resentencing might require more explanation.


      So why did it do this? The reason given by Justice Breyer, a couple of them -- the first he said is that this whole proportionality analysis that Mr. Chavez wants to use has no basis in the law. Nice idea, but there's no actual law supporting it. Not statutory, the Sentencing Commission hasn't put anything in the guidelines recommending such an approach as far as what's put in the record. And absent that, there was no reason to make a different standard for proportional reductions of a sentence when compared to non-proportional reductions. This is just a made-up category.


      And second, given the lack of proportional resentencing in this case, the question became less how much reasoning needs to be given, but whether the original sentencing can be considered as part of that reasoning. So it's probably useful here to start with the dissent's approach so we can compare and contrast. So the dissent reasoned, very much along the lines of what Mr. Chavez said, that when you have a resentencing and when that resentencing is disproportional to the old sentence, you can't assume that the old reasoning applies to the new sentence. Perhaps there're intervening factors.


      So, for example, in this case Justice Breyer mentioned that Mr. Chavez had been involved in a rather serious disciplinary incident while in prison. And perhaps, he said, perhaps this would justify the increase in sentence, at least proportional to the new guideline range. Justice Kennedy who wrote the dissent said, "Well, maybe you're right. But wouldn’t it be nice if that was on the record?" Because we don't know when all the judge does is check a box on this AO 247 form and say, "I considered 3553." We don't actually know what reasons there were for giving a new sentence within the guideline range. Justice Breyer wasn't convinced. He said, if you look at the record as a whole, what we see is this: the judge had before him at the original sentencing, a petition from the offender saying, "Please vary from the guidelines. Please give me a sentence below the guideline range." And the judge rejected this. And from that rejection, we can infer something, which is not that the judge said, "Eh, guidelines are good. Let's just give you a guideline range." But that, "135 months is a just sentence. I could've given you lower. You gave me reasons to give you a lower sentence. But 135 months is an appropriate, fair, and just sentence in your case, Mr. Chavez." That being the case, it makes sense to say as the judge, "Well, the guidelines now are lower, but I thought 135 months was just in the first place. So I don't need to lower it as far as I could. But I'll give him some credit."


      So given the simplicity of the case, given the -- what Justice Breyer called the common-sense reason behind the reduction that he did give, there's no reason to sit there and require the judge to give extra reason. It'd be too much of a burden on the district court to have to give more reasons behind every resentencing. The purpose of the resentencing hearing is to give the defendants a fair shot under the new guidelines to see whether he deserves a lower sentence. He received that. The purpose is not to replay once again the entire sentencing process required under Section 3553 in the original sentence. That being the case, this sentence was fine. But just this sentence. Justice Breyer made very clear that he left open the possibility that in the future there might be resentencing where filling out the form isn't enough, where the original record combined with the record on the resentencing doesn’t give enough of a justification to on appeal uphold the new sentence.


      So what's the real takeaway from that case then? The case does not tell us how much reasoning is necessary behind a judge's resentencing. It doesn't tell us what the judge has to give and what the judge doesn't have to give. The real takeaway from this opinion, then, is not the quantum of the reasoning that needs to be given, but the scope of the record on review that an appellate court may look at. Because Justice Kennedy in the dissent said when there's a disproportional resentencing, don't look at the original sentencing record. Those reasoning's just can't apply. We can't assume they apply at least. The majority, though, said on resentencing take the whole record into account. And that's the real takeaway from this case is that when there's a resentencing under Section 3582, use the entire record. Use the original sentencing record. See what can be gleamed from that and see if it supports the judge's determination on the resentencing.


      So with that, the summary of the cases is done. I'd love to hear what questions you all have.


Mr. Micah Wallen:  Thank you so much, Matthew, for those enlightening comments and deep review. Let's go to audience questions. While we're waiting to see if a question comes in, Matthew, I was wondering did you find anything surprising about the makeup of the judges in these two opinions? Obviously, we see it's not split directly along the traditional conservative/liberal lines in Chavez. Was that a surprise to some people or did it fallout pretty much as expected?


Mr. Matthew Wilkins:  So when I was reviewing the oral argument and some of the commentary preceding the case, the Chavez case was a little bit of a toss-up. People weren't sure exactly where it was going to come out. One of the things that's not surprising is that Justice Breyer wrote this opinion, specifically the way in which he wrote it which limits the facts. The idea that you take a holistic review, the idea that you look at the original record, the idea if you see it's reasonable on account of everything. That's very Justice Breyer's style. But I did notice that there was some surprise that Justice Breyer joined the majority at all. The reason being if you compare, for example, Justice Breyer's jurisprudence in APA cases…The Encino Motorcars case from a couple of years ago is a great example of this.


      When administration bodies in that circumstance change positions, when they make changes, he very strongly believes that there should be adequate reasons given at the time of change which justify the change. So this isn't perfectly analogous, but there had been some expectation that Justice Breyer would fall on this side of "here we have a change. A resentencing. First we're going to take 135 months of your life away. Now, it's only going to be 114. And it could've been 108." And so, if he was going to follow the typical path of his jurisprudence under the APA, we would expect Justice Breyer to say something along the lines of, "And yes, there is some explanation more required at the point of resentencing from a district judge." That would seem consistent with other lines he'd taken.         So Justice Breyer's position here is that the analysis given was enough. It's understandable, but I do think somewhat surprising.


      If we turn to the Lozman case—I know you didn't ask specifically about it—but that case, there really was no surprise at all. If you listen to the oral arguments, the entire oral argument was a question of, "Where do we draw the line?" There was a wonderful quip from Justice Kagan during the oral argument where, when the city's counsel came up, she said, "Counsel, you know, the counsel from Mr. Lozman had trouble with some of our extreme cases hypotheticals. But you've got some real problems on the actual facts of your case." Every justice implied that something seemed wrong in that case. It seemed like Mr. Lozman should be able to sue. The only justice that didn’t give any indication of that was Justice Thomas, who tends not to give any indications in oral arguments, as we know. And he was the only dissenter. So in Lozman, no surprise at all. But in Chavez, like I said, Justice Breyer, joining the majority and authoring it in favor of not requiring additional reasoning did in my opinion surprise some.


Mr. Micah Wallen:  Thank you, Matthew. I'm not seeing any more questions lined up, Matthew, so would you like a chance for some closing remarks?


Mr. Matthew Wilkins:  Closing remarks. Well, I think the court cases speak for themselves. But I do notice the trend this term as a whole, the Court's issuing very narrow opinions. If we compare these cases with say Masterpiece Cakeshop being a wonderful example, there's a trend this term—and I don't know if it's because the Chief Justice's is perhaps trying to avoid more politic decisions, trying to avoid more 5-4's. I'm not sure—but there seems to be a trend this term of issuing very narrow decisions tailored to the facts of the particular cases that don't give the general rules that give really good guidance to lower courts. Like I said, there're justifications for this. It could be to try to enhance the image of the Court as a unifying body rather than a political body. But that it kind of disapproving.


      In the blogosphere, the biggest comments I've seen about both of these cases was those are very interesting cases. They don’t help us very much, though. They don’t help give us much guidance going forward. Lozman you can read between the lines and say, "Well, probably in the run-of-the-mill case, probable cause will defeat a retaliatory arrest claim." And in Chavez, well, we at least know that we can look at the whole record, and so if in the original sentencing there was an adequate explanation we could probably get away with not having much explanation at resentencing. There's not a lot of firm doctrine in there on which lower courts can base decisions or on which attorneys can give their clients really firm advice. It provides lots of room for arguments so that's fun. But not a lot of room for firm advice.


      The other thing that we noticed, specifically with Lozman, as I was reviewing this case is that it breaks a general trend in the Court's criminal jurisprudence of not second guessing motivations of government actors. If we take the classic case of Whren v. United States, we don’t in that case look at what is the actual, inside-the-head motivation of a police officer when they're pulling over a car when we're doing a Fourth Amendment analysis to suppress evidence.


      But here we are looking at motivation. And so, there's been a little bit of speculation over whether there are cracks starting to show in the Court's normal unwillingness to look at the motivation of government actors in criminal contexts. I think that's a little overblown. I think that the narrowing of this case’s holding specifically to the facts forecloses that option. But it's an interesting thought and we'll see in future terms how that plays out. So that's all the closing remarks I have. If there's no more questions…we'll see.


Mr. Micah Wallen:  Well, thank you so much. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback at email at Thank you all for joining us. We are adjourned.