Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Friday, February 24, 2017

Appellate Advocacy Blog Weekly Roundup February 24 2017


As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email or a message on Twitter (@Daniel_L_Real).



Hernandez v. Mesa:

On Tuesday, the Supreme Court heard oral argument in Hernandez v. Mesa. The case has gained a fair amount of attention, particularly in light of political developments of the last few weeks.

SCOTUSblog article reviewing the oral argument. 

The case involves a Mexican family's attempt to hold a U.S. Border Patrol agent liable for the fatal shooting of their 15-year old son at the United States-Mexico border.  The family contends that their son was playing in the culvert along the border, was on the Mexico side of the border, and was shot across the border by a U.S. Border Patrol agent who was on the U.S. side of the border.

One issue is whether the Fourth Amendment can operate to protect a non-U.S. citizen injured outside of the U.S.  Another issues is whether a private federal action for damages can be brought by the family against a federal official.  Many commentators have speculated that Justice Kennedy may be the crucial vote, particularly with an eight-member Court.  He noted during the arguments that issues like this involving foreign affairs might be better resolved by the governments than the courts.

SCOTUSblog page with links to information about the case.

SCOTUS Blocks Execution Over Racial Bias:

On Wednesday, the Supreme Court blocked the execution of Duane Buck, a man convicted of murder in Texas.  The 6-2 ruling was the second ruling this term overturning a death sentence.  In this case, the Court held that the death penalty could not stand when it followed racially discriminatory testimony presented by the defendant's own attorneys  According to Chief Justice Roberts, the testimony "said, in effect, that the color of Buck's skin made him more deserving of execution."  The Court held that the testimony demonstrated prejudice.

New Circuit Split on Punitive and Compensatory Damages for ADEA Retaliation Claims:

As reported by the National Law Review this week, the United States Court of Appeals for the Fifth Circuit recently issued a ruling in which it held that punitive and compensatory damages are not available for retaliation claims brought under the federal Age Discrimination in Employment Act (ADEA).  The ruling, in Vaughan v. Anderson Regional Medical Center, creates a potential split between circuit courts of appeals because the United States Court of Appeals for the Seventh Circuit and the Equal Employment Opportunity Commission have both taken the position that such damages are available for retaliation claims under the ADEA.

Fourth Circuit Rules Assault Weapons Not Protected by Second Amendment

The United States Court of Appeals for the Fourth Circuit ruled this week that a Maryland law banning 45 kinds of assault weapons and imposing a 10-round limit on gun magazines was not violative of the Second Amendment.  The court called such weapons "weapons of war" and ruled that the Second Amendment does not extend to them.  The en-banc ruling was dissented from by one judge, who said that the majority's opinion went further than any other court "to eviscerate" the Second Amendment's guarantees.

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