Petitions We’re Watching

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Petitions We're Watching
Docket Case Page Issue(s)
17-133 Alaska Oil and Gas Association v. Ross Whether, when the government determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, the National Marine Fisheries Services may list that species as threatened under the Endangered Species Act.
17-481 AMCI Holdings v. CBF Industria de Gusa S/A Whether a foreign arbitration award can be enforced directly against a non-party under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
17-178 American Humanist Association v. Birdville Independent School District Whether the establishment clause is violated when a school district subjects its students to prayers at school board meetings.
17-449 American Triumph, LLC v. Tabingo Whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.
16-1220 Animal Science Products v. Hebei Welcome Pharmaceutical Co. Ltd. (1) Whether the U.S. Court of Appeals for the 2nd Circuit, in conflict with the decisions of three courts of appeals, erred in exercising jurisdiction under 28 U.S.C. § 1291 over a pre-trial order denying a motion to dismiss following a full trial on the merits; (2) whether a court may exercise independent review of an appearing foreign sovereign's interpretation of its domestic law (as held by the U.S. Courts of Appeals for the 5th, 6th, 7th, 11th and District of Columbia Circuits), or whether a court is “bound to defer” to a foreign government's legal statement, as a matter of international comity, whenever the foreign government appears before the court (as held by the opinion below in accord with the U.S. Court of Appeals for the 9th Circuit); and (3) whether a court may abstain from exercising jurisdiction on a case-by-case basis, as a matter of discretionary international comity, over an otherwise valid Sherman Antitrust Act claim involving purely domestic injury. CVSG: 11/14/2017.
17-204 Apple v. Pepper Whether consumers may sue anyone who delivers goods to them for antitrust damages, even where they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.
16-1369 Arizona v. Bahr Whether the U.S. Court of Appeals for the 9th Circuit erred in holding, in conflict with the U.S. Court of Appeals for the 5th Circuit, that the Environmental Protection Agency's interpretation of the Clean Air Act's contingency measures provision, 42 U.S.C. § 7502(c)(9), was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.
16-1180 Brewer v. Arizona Dream Act Coalition (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in creating an immigration-specific rule under which state police power regulations that “arrang[e]” federal immigration classifications are pre-empted, even if pre-emption was not “the clear and manifest purpose of Congress”; and (2) whether the 9th Circuit erred in assuming that the Deferred Action for Childhood Arrivals program, an executive-branch policy of non-enforcement, was valid “federal law” capable of pre-empting a state police power regulation.
17-512 Butts v. Sellers (1) Whether a court unreasonably applies Strickland v. Washington by measuring trial counsel's performance against the prevailing professional norms of a local judicial circuit where those local practices deviated from prevailing national or state norms; and (2) whether a federal habeas court's decision that it “cannot and will not second guess trial counsel's strategic decision” is consistent with Strickland.
17-321 Christensen v. Tennessee Whether a private citizen has the right to revoke a law enforcement officer's implied license to enter property to conduct a knock-and-talk by placing a “No Trespassing” sign on their property.
16-1043 Clark v. Virginia Department of State Police (1) Whether, by enacting 38 U.S.C. § 4323(b)(2) in 1998, Congress lawfully subjected state employees to suit in state court under the Uniformed Services Employment and Reemployment Rights Act of 1994 pursuant to a valid exercise of Congress’s war powers that was consistent with the framework and design of the Constitution; (2) whether Congress lawfully abrogated any sovereign immunity the Virginia Department of State Police purportedly retained with respect to USERRA actions in state court when Congress enacted 38 U.S.C. § 4323(b)(2); and (3) whether the Supreme Court of Virginia erroneously affirmed the Circuit Court of Chesterfield County's decision to sustain the Virginia Department of State Police's amended special plea of sovereign immunity and dismiss petitioner's complaint. CVSG: 10/12/2017.
16-1548 Cleaton v. Department of Justice Whether a federal law enforcement officer is “convicted” within the meaning of 5 U.S.C. § 7371 when a guilty plea has been entered but no sentence has been imposed, no judgment has been issued, and the plea can still be withdrawn.
17-40 Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians Whether, when, and to what extent the federal reserved right doctrine recognized in Winters v. United States, pre-empts state-law regulation of groundwater.
17-464 Connecticut v. Baccala Whether a defendant's conviction must be set aside under the fighting words doctrine of Chaplinsky v. New Hampshire, where the Connecticut Supreme Court recognized a “store manager” exception to the doctrine, thereby paving the way for the removal of verbal epithets from the doctrine's scope and deepening the conflict among the lower and state courts over the existence of the “police” exception and other similar exceptions.
17-343 Convergex Group, LLC v. Fletcher Whether a participant in a defined-benefit ERISA plan may claim “representational” standing and rely on only his plan's injuries to satisfy article III's standing requirement, as the U.S. Court of Appeals for the 2nd Circuit has held; or whether the participant must establish his own article III standing to proceed, as the U.S. Courts of Appeals for the 3rd, 4th, 5th, 6th, 8th, and 9th Circuits have held.
17-419 Dawson v. Steager Whether the Supreme Court's precedent and the doctrine of intergovernmental tax immunity bar states from exempting groups of state retirees from state income tax while discriminating against similarly situated federal retirees based on the source of their retirement income.
17-42 Desert Water Agency v. Agua Caliente Band of Cahuilla Indians (1) Whether the U.S. Court of Appeals for the 9th Circuit's standard for determining whether a federal reserved water right impliedly exists—that the right impliedly exists if the reservation purpose “envisions” the use of water—conflicts with the standard established by the Supreme Court in United States v. New Mexico, which the petitioners contend held that a federal reserved water right impliedly exists only if the reservation of water is “necessary” to accomplish the primary reservation purposes and prevent these purposes from being “entirely defeated"; (2) whether the reserved rights doctrine applies to groundwater; and (3) whether the Agua Caliente Band of Cahuilla Indians has a reserved right in groundwater, and in particular whether the Tribe's claimed reserved right is “necessary” to primary reservation purposes under the New Mexico standard in light of the fact that the Tribe has the right to use groundwater under California law.
16-1189 E.I. DuPont de Nemours and Co. v. Smiley (1) Whether the Fair Labor Standards Act prohibits an employer from using compensation paid to employees for non-compensable, bona fide meal breaks that it included in their regular rate of pay as a credit against compensation owed for work time; and (2) whether an agency's interpretation of a statute advanced for the first time in litigation is entitled to Skidmore v. Swift & Co. deference.
17-379 EchoStar Satellite, LLC v. Florida Department of Revenue (1) Whether the Florida Supreme Court erred in concluding that a law cannot discriminate against interstate commerce unless it benefits purely in-state companies and burdens purely out-of-state companies; and (2) whether a court evaluating a law's discriminatory purpose is forbidden from considering evidence other than the law's text and formal legislative history.
17-370 Evans v. Georgia Regional Hospital Whether the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination “because of . . . sex” encompasses discrimination based on an individual's sexual orientation.
17-557 Fedora v. Merit Systems Protection Board Whether the time period for a federal employee to seek review from the U.S. Court of Appeals for the Federal Circuit of a final order of the Merit Systems Protection Board is jurisdictional and therefore cannot be equitably tolled under any circumstances.
17-571 Fourth Estate Public Benefit Corp. v. Wall-Street.com Whether the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the U.S. Courts of Appeal for the 5th and 9th Circuits have held, or only once the Copyright Office acts on that application, as the U.S. Courts of Appeals for the 10th and, in the decision below, the 11th Circuits have held.
17-184 Great Plains Lending, LLC v. Consumer Financial Protection Bureau Whether a generally applicable federal statute, which is silent as to its applicability to Indian Tribes, should nevertheless be presumed to apply to Indian Tribes.
17-522 Hankins v. U.S. Whether, where a victim entitled to restitution under the Mandatory Victims Restitution Act of 1996 neither accepts restitution nor assigns it to the Crime Victims Fund, the district court may nonetheless order the defendant to pay restitution to the Crime Victims Fund, despite the absence of statutory authority for such an order.
17-278 Ho v. ReconTrust Co. Whether entities conducting foreclosure-related activities, including notifying borrowers that their homes will be sold unless payment is made, are subject to the Fair Debt Collection Practices Act's general restrictions on “debt collectors.”
17-463 Kansas v. National Indian Gaming Commission Whether the National Indian Gaming Commission's legal opinions that determine whether Indian lands are eligible for gaming under the Indian Gaming Regulatory Act are reviewable final agency actions.
17-301 Kenosha Unified School District No. 1 Board of Education v. Whitaker (1) Whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is sex stereotyping that constitutes discrimination “based on sex” in violation of Title IX; and (2) whether a school policy requiring boys and girls to use separate bathroom facilities that correspond to their biological sex is a sex-based classification triggering heightened scrutiny under an Equal Protection analysis.
17-375 Kokocinski v. Collins (1) Whether a federal court of appeals reviews de novo a district court's dismissal with prejudice of a shareholder-derivative action based on a special litigation committee's recommendation, as the U.S. Courts of Appeals for the 1st, 2nd, 5th, 6th, and 9th Circuits have held, or for an abuse of discretion, as held by the U.S. Courts of Appeals for the 8th and 11th Circuits; (2) whether a federal court of appeals reviews an appeal from a Federal Rule of Civil Procedure 23.1 order in a derivative action de novo, as the U.S. Courts of Appeals for the 1st, 2nd, 6th, and 7th Circuits have held, or for an abuse of discretion, as held by the U.S. Courts of Appeals for the 3rd, 8th, 9th, 10th, 11th, and D.C. Circuits; and (3) whether a plaintiff in a shareholder-derivative action is entitled to discovery before the court rules on a special litigation committee's motion to dismiss.
17-127 Kolbe v. Hogan (1) Whether District of Columbia v. Heller excludes the most popular semiautomatic rifles and magazines from Second Amendment protection; and (2) whether they may be banned even though they are typically possessed for lawful purposes, including self-defense in the home.
17-579 Labor and Industry Review Commission of Wisconsin v. Coleman Whether a magistrate judge has the authority to dismiss a pro se plaintiff's frivolous or meritless lawsuit when the plaintiff has consented to the magistrate's authority under 28 U.S.C. § 636(c)(1), but the defendant has not yet been served.
16-1519 Lagos v. U.S. Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim's own purposes and unprompted by any official government action.
16-1215 Lamar, Archer & Cofrin, LLP v. Appling Whether (and, if so, when) a statement concerning a specific asset can be a “statement respecting the debtor's . . . financial condition” within Section 523(a)(2) of the Bankruptcy Code. CVSG: 11/09/2017.
17-313 Ledezma-Cosino v. Sessions Whether, when assessing a statute under rational basis review, a court must consider both the ultimate effect of the statute and the statutory means by which it achieves that effect, or whether a court must look only at the ultimate effect of the statute; and (2) whether the habitual drunkard provision of 8 U.S.C. § 1101(f) is unconstitutionally vague.
17-132 Lindsey v. Virginia Whether the jury instruction—that the defendant’s actions were “evidence of [the requisite intent] . . . unless there is believable evidence to the contrary”—violated due process by shifting to the defendant the burden of producing "believable evidence" to show that he lacked the requisite intent.
17-130 Lucia v. Securities and Exchange Commission Whether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause.
17-85 McCarthan v. Collins Whether a person in federal custody is entitled to file an application for habeas corpus under 28 U.S.C. § 2241 because a 28 U.S.C. § 2255 motion is “inadequate or ineffective” to permit him to raise a claim that his conviction or sentence is invalid under an intervening and retroactively applicable statutory-interpretation decision of the Supreme Court.
17-601 Medrano-Arzate v. May Whether a plaintiff can state a cognizable claim for municipal liability under 42 U.S.C. § 1983 for the deprivation of a citizen's substantive due process rights without alleging that the employee who carried out the municipal policy also acted with a constitutionally culpable state of mind.
17-537 Mercury Casualty Company v. Jones Whether the Fifth and 14th Amendments permit a state to fix the rates charged by a regulated entity at a level that precludes a fair rate of return on the regulated entity's capital.
17-212 Nagelvoort v. U.S. Whether completely severing ties with an organization engaged in a conspiracy constitutes “affirmative action . . . to disavow or defeat the purpose” of the conspiracy that establishes withdrawal from the conspiracy.
17-340 New Prime v. Oliveira (1) Whether a dispute over applicability of the Federal Arbitration Act's Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA's Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.
17-302 Perez-Guzman v. Sessions (1) Whether a court must defer to an agency's position under Chevron USA, Inc. v. Natural Resources Defense Council when the only ambiguity is a direct conflict between two statutory sections, which the agency has not addressed; and (2) whether the Immigration and Nationality Act's asylum provision affords a noncitizen in reinstatement proceedings the opportunity to seek asylum in the United States.
17-320 Perfect 10 v. Giganews (1) Whether the U.S. Court of Appeals for the 9th Circuit correctly held—in conflict with the U.S. Courts of Appeals for the 2nd, 6th, 7th, and 8th Circuits—that a defendant “profits from” direct infringement for purposes of vicarious copyright liability only if a plaintiff proves that its work, as opposed to the totality of the infringing content offered by defendants, was the reason customers were drawn to the defendant's business; and (2) whether the U.S. Court of Appeals for the 9th Circuit correctly held—contrary to the decisions of the Supreme Court—that a defendant does not engage in direct copyright infringement when it displays, reproduces, or distributes infringing material, so long as that conduct is accomplished through an automated process.
17-401 Philip Morris USA v. Lourie (1) Whether, when there is no way to tell whether a prior jury found particular facts against a party, due process permits those facts to be conclusively presumed against that party in subsequent litigation; and (2) whether strict-liability and negligence claims based on the findings by the class-action jury in Engle v. Liggett Group, Inc. are pre-empted by the many federal statutes that manifested Congress's intent that cigarettes continue to be lawfully sold in the United States.
17-400 Philip Morris USA v. Naugle (1) Whether, when there is no way to tell whether a prior jury found particular facts against a party, due process permits those facts to be conclusively presumed against that party in subsequent litigation; and (2) whether strict-liability and negligence claims based on the findings by the class-action jury in Engle v. Liggett Group, Inc. are pre-empted by the many federal statutes that manifested Congress's intent that cigarettes continue to be lawfully sold in the United States.
17-443 R.J. Reynolds Tobacco Co. v. Block (1) Whether, when there is no way to tell whether a prior jury found particular facts against a party, due process permits those facts to be conclusively presumed against that party in subsequent litigation; and (2) whether strict-liability and negligence claims based on the findings by the class-action jury in Engle v. Liggett Group, Inc. are pre-empted by the many federal statutes that manifest Congress' intent that cigarettes continue to be lawfully sold in the United States.
17-415 R.J. Reynolds Tobacco Co. v. Graham (1) Whether, when there is no way to tell whether a prior jury found particular facts against a party, due process permits those facts to be conclusively presumed against that party in subsequent litigation; and (2) whether, if the Engle v. Liggett Group, Inc. jury's findings are deemed to establish that all cigarettes are inherently defective, claims based on those findings are pre-empted by the many federal statutes that manifest Congress's intent that cigarettes continue to be lawfully sold in the United States.
17-431 Recycle for Change v. City of Oakland, California Whether a regulation is content-based for purposes of the First Amendment when it only applies to unattended receptacles that solicit donations or collections.
16-1094 Republic of Sudan v. Harrison Whether the U.S. Court of Appeals for the 2nd Circuit erred by holding – in direct conflict with the U.S. Courts of Appeals for the District of Columbia, 5th and 7th Circuits and in the face of an amicus brief from the United States – that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state's ministry of foreign affairs “via” or in “care of” the foreign state's diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability.
17-241 Reyes v. Sessions Whether the U.S. Court of Appeals for the 9th Circuit erred in deferring to the Board of Immigration Appeals' interpretation of the term “particular social group” from the Immigration and Nationality Act under Chevron U.S.A., Inc. v. Natural Resources Defense Council.
16-970 Rinehart v. California Whether the Supreme Court of California erred in holding, in conflict with decisions of the U.S. Courts of Appeals for the 8th and Federal Circuits and the Colorado Supreme Court, that the Mining Law of 1972, as amended, does not pre-empt state bans of mining on federal lands despite being “an obstacle to the accomplishment and execution of the full purposes and objectives” of that law.
17-616 S. A. B. v. Sessions (1) Whether a court of appeals may rely on extra-record factual research to decide a petition for review of a removal order despite a statutory command that such a petition be decided “only on the administrative record,” 8 U.S.C. § 1252(b)(4)(A); and (2) whether federal court authority to decide constitutional claims and questions of law under 8 U.S.C. § 1252(a)(2)(D) permits review of legal error in exemption determinations under 8 U.S.C. § 1182(d)(3)(B)(i).
17-368 Salt River Project Agricultural Improvement and Power District v. SolarCity Corp. Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.
16-1445 Seepersad v. U.S. Whether, in the context of a noncitizen defendant with legal resident status and extended familial and property ties to the United States, when establishing prejudice under Strickland v. Washington, it is always irrational for a defendant to reject a plea offer notwithstanding evidence of guilt when the plea would result in mandatory and permanent deportation.
17-562 Silver v. U.S. (1) Whether 18 U.S.C. § 1957 requires the government to trace funds in a transaction involving a withdrawal from a commingled account, precluding a conviction where the account contains sufficient clean funds to cover the transfer; and (2) whether the U.S. Court of Appeals for the 2nd Circuit contravened the Supreme Court's decisions in Sekhar v. United States and Skilling v. United States by finding sufficient evidence to support Petitioner's convictions for extortion and honest services fraud.
17-342 Silvester v. Becerra (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly applied lenient scrutiny in a Second Amendment challenge to the application of California's full 10-day waiting period to firearm purchasers who pass their background check in fewer than 10 days and already own another firearm or have a concealed carry license; and (2) whether the Supreme Court should exercise its supervisory powers to cabin the U.S. Court of Appeals for the 9th Circuit's concerted resistance to and disregard of the Supreme Court's Second Amendment decisions.
16-1071 Sokolow v. Palestine Liberation Organization Whether the Fifth Amendment's due process clause precludes federal courts from exercising personal jurisdiction in this suit by American victims of terrorist attacks abroad carried out by the Palestinian Authority and the Palestine Liberation Organization.
17-540 Starr Int'l Company v. U.S. Whether a private party with Article III standing may be barred from asserting constitutional claims for money damages against the federal government because of the equitable doctrine of “third-party prudential standing.”
17-118 State of Alaska v. Ross Whether, when the government determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, the National Marine Fisheries Service may list that species as threatened under the Endangered Species Act.
17-250 Stein v. U.S. Whether the Due Process Clause excuses the government's knowing use of false testimony where the government does not also suppress evidence indicating that the testimony was false.
16-1432 Sveen v. Melin Whether the application of a revocation-upon-divorce statute to a contract signed before the statute's enactment violates the contracts clause.
17-294 Thompson v. Park Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that evidence can be material for purposes of a 42 U.S.C. § 1983 claim alleging deprivation of compulsory process or denial of a fair trial when the defendant was acquitted at trial.
17-346 Touchet v. Estis Well Service, LLC (1) Whether seamen may recover punitive damages for their employer's willful and wanton breach of the general maritime law duty to provide a seaworthy vessel, as held by the Washington Supreme Court and the U.S. Courts of Appeals for the 9th and 11th Circuits; or whether punitive damages are categorically unavailable in an action for unseaworthiness, as held by the U.S. Courts of Appeals for the 1st, 5th, and 6th Circuits and the Texas Supreme Court; and (2) whether the Jones Act, 46 U.S.C. § 30104, “prohibits the recovery of punitive damages in action under that statute,” a question explicitly left open by the Supreme Court in Atlantic Sounding Co., Inc. v. Townsend.
17-312 U.S. v. Sanchez-Gomez (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in asserting authority to review respondents' interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that respondents' individual claims were moot; and (2) whether the U.S. Court of Appeals for the 9th Circuit erred in concluding that the Fifth Amendment forbids the U.S. Marshals Service for the Southern District of California, with the approval of district judges in that high-volume jurisdiction, from implementing a policy of placing pretrial detainees in physical restraints during non-jury court proceedings.
17-387 Upper Skagit Indian Tribe v. Lundgren Whether a court's exercise of in rem jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it.
16-1275 Virginia Uranium v. Warren Whether the Atomic Energy Act pre-empts a state law that on its face regulates an activity within its jurisdiction (here uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission (here, the milling of uranium and the management of the resulting tailings).
17-544 Vocke v. Merit Systems Protection Board Whether the time period for a federal employee to seek review from the U.S. Court of Appeals for the Federal Circuit of a final order of the Merit Systems Protection Board is jurisdictional and therefore cannot be equitably tolled under any circumstances.
17-618 Washington Alliance of Technology Workers v. Department of Homeland Security (1) Whether, under the Equal Access to Justice Act, prevailing party status on appeal is separate and distinct from prevailing party status in the entire litigation; (2) whether separate claims brought under the Administrative Procedure Act seeking the identical remedy are distinct in all respects for fee purposes; and (3) whether a district court may raise objections to a fee request sua sponte, without giving the party making the request an opportunity to respond.
16-1498 Washington Department of Licensing v. Cougar Den Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways.
16-1011 WesternGeco LLC v. ION Geophysical Corp. Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases where patent infringement is proven under 35 U.S.C. § 271(f).
17-270 White v. U.S. Whether, under the Speedy Trial Act, time engaged in a plea negotiation that does not result in a finalized plea agreement is automatically excludable as “other proceedings concerning the defendant” under 18 U.S.C. § 3161(h)(1), as four circuits hold; or whether such time is excludable only if the district court makes case-specific “ends of justice” findings under 18 U.S.C. § 3161(h)(7), as four other circuits hold.
17-552 Wilson v. Callahan (1) Whether, in deadly force shooting cases, the U.S. Court of Appeals for the 2nd Circuit erred by requiring that the jury must be instructed regarding the specific legal justifications for the use of deadly force, and that the usual less specific instructions regarding the use of excessive force are not adequate, when such a requirement is in direct conflict with the Supreme Court's decision in Scott v. Harris and subsequent decisions, which abrogated the use of special standards in deadly force cases and established “reasonableness” as the ultimate and only inquiry; and (2) whether, in light of the direct conflict with several of its sister circuits, the U.S. Court of Appeals for the 2nd Circuit's requirement that a jury must be instructed regarding the specific legal justifications for the use of deadly force creates an uncertainty preventing law enforcement officers from having adequate fair notice of what conduct is proscribed or constitutionally permissible, thereby further hampering the application of qualified immunity at the earliest stage of a case.
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