Below is an excerpt of the piece originally published at Howe on the Court and featured by on October 18, 2021.

The Supreme Court on Monday morning added two new cases, both involving Native Americans, to its docket for this term. The justices also issued two unsigned decisions holding, without oral argument, that police officers are entitled to qualified immunity from lawsuits accusing them of using excessive force. The justices, however, did not act on several of the high-profile petitions that they considered at their private conference last week.

Two new grants on Native American sovereignty

In Denezpi v. United States, the justices agreed to consider whether a prosecution in the Court of Indian Offenses can trigger the Constitution’s double jeopardy clause. The Court of Indian Offenses is a trial court that operates in areas where tribes have jurisdiction over Native Americans, but where there are not tribal courts to fully exercise that jurisdiction. The question is whether the court constitutes a “federal agency” so that a conviction in that court bars a later prosecution in a federal district court for a crime arising out of the same incident. Merle Denezpi, a member of the Navajo tribe, pleaded guilty in the Court of Indian Offenses to an assault charge in 2017. Six months later, a federal grand jury in the U.S. District Court of the District of Colorado indicted Denezpi on a charge of aggravated sexual assault in Indian country based on the same underlying events. He was found guilty and sentenced to 30 years in prison.

Denezpi contends that his prosecution in federal court violated the Constitution’s ban on double jeopardy, which prohibits more than one prosecution for the “same offence.” Under a line of cases known as the dual-sovereignty doctrine, a crime under the laws of one sovereign is not the “same offence” as a crime under the laws of a second sovereign. Denezpi argues that the dual-sovereignty doctrine does not apply because the Court of Indian Offenses is a federal agency. The government, which views the court as a tribunal exercising the powers of a Native American tribe, says the dual-sovereignty doctrine permits the subsequent prosecution. The justices will hear oral argument next year, with a decision expected by summer.

In Ysleta del Sur Pueblo v. Texas, the justices will weigh in on a dispute over the application of state standards to tribal gaming operations on Native American land. The case involves a federal law that bars on tribal lands any gaming activities “prohibited by the laws of the State of Texas.” The question is whether the law prohibits any kind of gambling that is banned under state law, or whether it goes further and also prohibits any gaming that the state regulates. The Biden administration recommended that the justices grant review, which the justices did on Monday.

Two summary rulings on qualified immunity

The justices also issued two unsigned opinions in which they summarily – that is, without briefing on the merits or oral argument – reversed rulings by federal courts of appeals holding that police officers were not entitled to qualified immunity in lawsuits accusing them of using excessive force. The court’s opinion in Rivas-Villegas v. Cortesluna arose from a 2016 phone call by a 12-year-old girl reporting that Ramon Cortesluna, her mother’s boyfriend, had a chainsaw and was going to attack them. When Cortesluna came out of the house and – after being told not to – put his hands down, one police officer shot him twice. Officer Daniel Rivas-Villegas pushed him onto the ground and pressed his knee against Cortesluna’s back so that a colleague could handcuff him.

Cortesluna filed a federal civil rights lawsuit against the officers, arguing that they had used excessive force against him. A federal trial court concluded that the force used by both officers was reasonable and that the officers were entitled to qualified immunity. On appeal, the U.S. Court of Appeals for the 9th Circuit upheld that conclusion with regard to the officer who fired the shots, but reversed as to Rivas-Villegas. Because it was clearly established, the panel majority reasoned, that it was excessive force for a police officer to press his knee into the back of a suspect lying face down on the ground, hard enough to cause an injury, Rivas-Villegas was not entitled to qualified immunity.

Rivas-Villegas came to the Supreme Court last April, asking the justices to weigh in. In a six-page opinion, the justices reversed the 9th Circuit’s ruling. They emphasized that an official is entitled to qualified immunity when his conduct does not violate clearly established rights, and he would have been aware of those rights. Even if cases in the courts of appeals can qualify as “clearly established” law, the justices continued, the facts of the case on which the 9th Circuit relied were too different from the facts of this case for Rivas-Villegas to be “on notice that his specific conduct was unlawful.”

The court’s second unsigned opinion on Monday — in City of Tahlequah v. Bond — stemmed from a case filed by the estate of Dominic Rollice, a registered sex offender whom police officers were trying to remove from his ex-wife’s home. When asked to drop a clawed hammer, Rollice did not do so, prompting officers to fire at him and kill him. A federal district judge ruled that the officers’ use of force was reasonable and that the officers were entitled to qualified immunity.

The U.S. Court of Appeals for the 10th Circuit reversed. It ruled both that the officers’ conduct created the situation that led to the shooting, so that their use of force was unconstitutional even if it was reasonable at the moment it was employed. Moreover, the court of appeals concluded, the officers were not entitled to qualified immunity.

The city and the officers came to the Supreme Court in May, and on Monday the justices reversed. The justices explained that they did not need to decide whether the officers’ use of force was unconstitutional because the officers “plainly did not violate any clearly established law.” “Not one of the decisions” on which the 10th Circuit relied, the court stressed, “comes close to establishing that the officers’ conduct was unlawful.”

There were no dissents noted from either of Monday’s summary reversals.

Amy Howe, Court adds two cases on Native American law and issues two opinions granting police officers qualified immunity, SCOTUSblog (Oct. 18, 2021, 12:39 PM),


Amy Howe


Until September 2016, Amy Howe served as the editor and a reporter for SCOTUSblog; she continues to serve as an independent contractor and reporter for SCOTUSblog. She primarily writes for her eponymous blog, Howe on the Court. Before turning to full-time blogging, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School; from 2005 until 2013, she co-taught a similar class at Harvard Law School. She has also served as an adjunct professor at American University’s Washington College of Law and Vanderbilt Law School. Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University.


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