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Two New Opinions: Excessive Force and Dormant Commerce Clause

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By Mark Wilson, Esq. on May 18, 2015 3:55 PM

Last week, we asked for opinions from the Supreme Court and we got them -- six of them, in fact -- which may portend more multi-opinion days in the weeks to come.

Today's opinions were fairly prosaic (by which we mean "bankruptcy"), but a few stood out as fairly important.

City and County of San Francisco v. Sheehan

This case couldn't be more important in a time when police seem to be shooting anybody making furtive movements. Teresa Sheehan lived in a group home for people with mental illness. Police responded to her room when her social worker said she had stopped eating or taking her medication. Sheehan brandished a knife at police, who responded by using pepper spray and shooting her twice (she survived).

Sheehan claimed officers should have accommodated her disability by using nonviolent means to subdue her. The Supreme Court, in a fractured opinion (and with Justice Breyer recused because his brother, District Judge Charles Breyer, heard the case at trial), did two things. First, the majority dismissed as improvidently granted the issue of whether police must accommodate mentally ill suspects when taking them into custody. Second, the majority said that police were entitled to qualified immunity because they acted reasonably.

Justices Scalia and Kagan concurred and dissented in part, quite upset that petitioners in this case premised their petition on a circuit split as to whether Title II of the ADA requires officers to accommodate during an arrest -- only to abandon that argument once they got a cert. petition. Scalia and Kagan saw this as a subterfuge for getting cert. granted where it otherwise wouldn't have been and would have dismissed both questions as improvidently granted so as not to "encourage future litigants to seek review premised on arguments they never plan to press."

Comptroller of the Treasury of Maryland v. Wynne

Maryland's state income tax contains both a state component and a county component. Maryland residents who pay income tax to another state are entitled to a Maryland credit for the state portion of their Maryland taxes, but not the county portion.

By an unusual 5-4 split (Justices Alito, Kennedy, Breyer, and Sotomayor, plus Chief Justice Roberts, against Justices Scalia, Thomas, Ginsburg, and Kagan), the court held that this arrangement violated the dormant Commerce Clause.

The majority apparently found it easy to conclude Maryland's tax system unconstitutional, as "existing dormant Commerce Clause cases all but dictate the result reached in this case by Maryland's highest court." Plainly, Maryland's policy had the effect of favoring in-state economic activity over out-of-state economic activity by doubly taxing Maryland residents who earned income in another state.

The principal dissent, authored by Justice Ginsburg, argued that Maryland's tax scheme was authorized because it was within the state's Due Process Clause power to levy. She framed it as a policy choice that made sense: Maryland residents are Maryland residents, no matter where they earn their income, and they still make regular use of state roads and other taxpayer-funded services that other residents enjoy.

That's true, said Alito, writing for the majority, but it doesn't change the fact that such a tax still runs afoul of the dormant Commerce Clause. To find otherwise would be to claim that "the State's decision to tax in a way that allegedly discriminates against interstate commerce could be justified by the argument that a State may tax its residents without any Commerce Clause constraints."

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