{"id":173,"date":"2026-06-10T14:44:18","date_gmt":"2026-06-10T14:44:18","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=173"},"modified":"2026-06-10T14:44:18","modified_gmt":"2026-06-10T14:44:18","slug":"race-and-recorded-calls","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=173","title":{"rendered":"Race and recorded calls"},"content":{"rendered":"
\n

The Relist Watch column examines cert petitions that the Supreme Court has \u201crelisted\u201d for its upcoming conference. A short explanation of relists is available here.<\/em><\/p>\n

Read more The Supreme Court\u2019s confusing use of \u201cprinciples\u201d<\/a><\/p>\n

Since our last post, the Supreme Court has been rather restrained at working through relists. This week, the justices acted on only one relisted petition, Walters v. Coleman<\/em>, in which the Commonwealth of Virginia seeks reversal of a decision by the U.S. Court of Appeals for the 4th Circuit granting habeas relief to a prisoner. The court made short work of the petition: the justices granted, vacated, and remanded for further consideration in light of , where the court recently reversed the 4th Circuit for the same basic mistake \u2013 giving habeas relief based on a theory the prisoner had not actually presented. In Walters<\/em>, that meant no extended engagement with the grisly facts of that case or the 4th Circuit\u2019s 124-page effort to order resentencing, just a brisk reminder that federal courts are supposed to decide the issues the parties themselves present.<\/p>\n

Now on to new business. There are 108 petitions and applications on the docket for this week\u2019s conference. Two are being considered for a second time. Both involve the same lawyers: Skadden and the Office of the Solicitor General.<\/p>\n

Is a person\u2019s race relevant to whether they have been \u201cseized\u201d by police?<\/strong><\/p>\n

United States v. Carter<\/em> asks whether race can be a relevant factor in the Fourth Amendment\u2019s \u201cfree to leave\u201d test for determining whether a police encounter constitutes a seizure \u2013 and whether the answer can turn on judicially attributed assumptions about how members of a particular racial group perceive law enforcement. Officers from the District of Columbia Metropolitan Police Department\u2019s Gun Recovery Unit in plain clothes and tactical vests and carrying visible firearms approached respondent Donte Carter on a sidewalk in Washington, D.C. One officer asked Carter whether he had a gun; Carter twice lifted his shirt to show he didn\u2019t. The officer then asked Carter to \u201chike his pants,\u201d which Carter did \u2013 at which point another officer noticed a gun-shaped object in Carter\u2019s groin area, leading to a frisk and the discovery of a .40-caliber pistol that had been stolen from an FBI agent\u2019s car. Carter was convicted on eight firearms and theft counts.<\/p>\n

The District of Columbia Court of Appeals (the high court of D.C., not the federal appellate court it is often confused with) vacated those convictions, holding that the \u201chike your pants\u201d request had amounted to a Fourth Amendment seizure occurring before the officers had developed reasonable suspicion. The DCCA held that its precedent required it to assess the encounter through the eyes of a reasonable person sharing respondent\u2019s \u201cracial status,\u201d concluding that \u201cblack Americans like [Carter] are \u2018especially distrustful of law enforcement\u2019\u201d and thus \u201c\u2018less likely\u2019 than other people \u2018to terminate a police encounter\u2019 due to skepticism that any attempt to exercise their constitutional rights will be respected,\u201d such that a Black man in Carter\u2019s position would have felt compelled to comply where others would not. Judge Roy McLeese concurred in the judgment to note that he had previously \u201cexpressed uncertainty\u201d as to whether race could permissibly be considered this way, but that court\u2019s established precedent now required him to.<\/p>\n

The , framing the DCCA\u2019s rule as making the same police conduct a Fourth Amendment seizure for one racial group but not another \u2013 a result it argues conflicts with the Fourth Amendment\u2019s objective \u201creasonable person\u201d standard, which \u201cdoes not vary with the state of mind of the particular individual being approached\u201d according to 1988\u2019s Michigan v. Chesternut<\/em>, and which the government argues also conflicts with the equal protection guarantee\u2019s rejection of judicial presumptions about how all members of a racial group think. Additionally, the government points to decisions of the U.S. Courts of Appeals for the 4th, 10th, and 11th Circuits and the Iowa Supreme Court rejecting race as a factor in the seizure analysis.<\/p>\n

that the government\u2019s framing misreads the DCCA\u2019s decision, which it says rested on a finding that any<\/em> reasonable person \u2013 not just a reasonable Black person \u2013 would have felt unable to terminate the encounter; that the controlling precedent is 1980\u2019s United States v. Mendenhall<\/em>, which Carter argues already holds race is \u201cnot irrelevant\u201d in a seizure analysis (there concerning whether a Black woman would have \u201cfelt unusually threatened\u201d by \u201cwhite male\u201d DEA officers who stopped her) and which the government notably does not ask the court to overrule; that the circuit split is overstated; and that the case is a poor vehicle because the DCCA\u2019s race analysis was not necessarily outcome-determinative. that Mendenhall<\/em> discussed race in connection with consent to a police request, not whether a seizure occurred, and that the D.C. court \u201cfactor[ed] in\u201d Carter\u2019s status as a Black man in its holding.<\/p>\n

A government petition with a credible split and a question about the role of race policing is a combination that is practically guaranteed to attract the justices\u2019 attention.<\/p>\n

Wiretapping and the clean hands problem<\/strong><\/p>\n

The facts of Grayson v. United States<\/em> read like a movie script that was sent back for a rewrite on grounds of implausibility. Petitioner Ashley Grayson, a Dallas social-media influencer who offered credit-repair services, became embroiled in a dispute with Olivia Johnson, a Memphis influencer and hairstylist, after Grayson bought a house for Johnson\u2019s mother but kept the deed in her own name. According to trial evidence, Grayson later asked Johnson to kill three people who had criticized her online, offering $80,000 and later paying $10,000 after Johnson falsely claimed that one target\u2019s house had been shot up. Johnson, who said she never intended to commit the murders, secretly recorded a FaceTime call with Grayson, allegedly both to gather evidence and to gain leverage in the housing dispute.<\/p>\n

After the FBI brought charges, Grayson moved to suppress the recording under 18 U.S.C. \u00a7 2515, Title III of the Omnibus Crime Control and Safe Street Act of 1968\u2019s broad exclusionary rule, which provides that \u201cno part of the contents\u201d of an unlawfully intercepted wire or oral communication \u201cmay be received in evidence in any trial, hearing, or other proceeding\u201d before any court \u201cif the disclosure of that information\u201d would violate Title III. The district court denied suppression under the U.S. Court of Appeals for the 6th Circuit\u2019s 1995 decision in United States v. Murdock<\/em>, which recognizes a \u201cclean hands\u201d exception that permits admission of illegally intercepted evidence when the government \u201cplayed no part in the unlawful interception.\u201d The 6th Circuit affirmed, saying Grayson \u201cmay be correct\u201d that the recording was unlawful, but that \u201cthe legality of the recording has no bearing on its admissibility\u201d under Murdock<\/em>. At the same time, the court suggested it had its doubts about Murdock<\/em>\u2019s correctness, noting that the decision relied on (now disfavored) legislative history and Grayson had the better of the textual argument. But hey, it was bound by circuit precedent.<\/p>\n

says the 6th Circuit stands alone against the U.S. Courts of Appeals for the 1st, 3rd, 4th, 8th, and 9th Circuits, plus the Massachusetts Supreme Judicial Court, all of which reject any clean-hands exception to Title III\u2019s suppression rule. As though an influencer-versus-influencer murder-for-hire case wasn\u2019t weird enough, here\u2019s another twist: the government agrees the 6th Circuit was wrong and agrees there\u2019s a circuit split, but still asks the court to deny review \u2013 or, at most, grant, vacate, and remand in light of its position \u2013 because the issue arises rarely, the government says it will not rely on Murdock<\/em> going forward, and any error was harmless given Johnson\u2019s testimony, text messages, surveillance footage, Grayson\u2019s own call to the FBI, and other evidence. that those are arguments for remand, not arguments that support denying cert. The 6th Circuit panel was bound by Murdock<\/em>, the full court declined to rehear the case as a full panel, and a GVR would merely send the case back to a court whose binding precedent remains wrong.<\/p>\n

Grayson may yet pull out a grant. But I\u2019ve been in precisely this position before (involving the 6th Circuit no less) in a Speedy Trial Act case and the court GVR\u2019d in light of the government\u2019s confession of error, notwithstanding my that argued (persuasively, if you ask me) that a grant was still warranted. The temptation to just GVR may be irresistible where, as here, the 6th Circuit is the lone outlier.<\/p>\n

That\u2019s all for this week. Check back Monday to see whether the court serves up some grants or just another round of relist purgatory.<\/p>\n

New Relists<\/strong><\/p>\n

Grayson v. United States<\/em>, 25-851<\/p>\n

Issue: <\/strong>Whether\u00a0\u2019s exclusionary rule, which provides that \u201cno part of the contents\u201d of an intercepted communication \u201cand no evidence derived therefrom may be received in evidence in any trial, hearing, or proceeding\u201d before any state or federal court or governmental body \u201cif the disclosure of that information\u201d would violate Title III of the\u00a0, contains an unwritten clean-hands exception.<\/p>\n

(Relisted after the June 4 conference.)<\/p>\n

United States v. Carter<\/em>, 25-885<\/p>\n

Issue: <\/strong>Whether perceptions of law enforcement that a court attributes to a particular racial group are a relevant factor in the Fourth Amendment analysis of whether a member of that group has been seized.<\/p>\n

(Relisted after the June 4 conference.)<\/p>\n

Returning Relists<\/strong><\/p>\n

Gator\u2019s Custom Guns, Inc. v. Washington<\/em>, 25-153<\/p>\n

Issue: <\/strong>Whether ammunition feeding devices with the capacity to hold more than ten rounds are \u201cArms\u201d presumptively entitled to constitutional protection under the plain text of the Second Amendment.<\/p>\n

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)<\/p>\n

Duncan v. Bonta<\/em>, 25-198<\/p>\n

Issue:<\/strong> (1) Whether a ban on the possession of exceedingly common ammunition feeding devices violates the Second Amendment; and (2) whether a law dispossessing citizens, without compensation, of property that they lawfully acquired and long possessed without incident violates the takings clause.<\/p>\n

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)<\/p>\n

Viramontes v. Cook County<\/em>, 25-238<\/p>\n

Issue<\/strong>: Whether the Second and 14th Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.<\/p>\n

(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)<\/p>\n

National Association for Gun Rights v. Lamont<\/em>, 25-421<\/p>\n

Issue<\/strong>: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.<\/p>\n

Read more When must justices recuse themselves over family members\u2019 acts?<\/a><\/p>\n

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)<\/p>\n

Grant v. Higgins<\/em>, 25-566<\/p>\n

Issue<\/strong>: Whether the Second and 14th Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.<\/p>\n

(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)<\/p>\n

City of Los Angeles v. Estate of Hernandez<\/em>, 25-53<\/p>\n

Issue<\/strong>: (1) Whether the U.S. Court of Appeals for the 9th Circuit disregarded this court\u2019s precedents, including\u00a0Graham v. Connor<\/em>\u00a0and\u00a0Plumhoff v. Rickard<\/em>, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme \u201cmoment-of-threat\u201d rule that this court unanimously rejected in\u00a0Barnes v. Felix<\/em>; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was \u201cclearly established\u201d at an impermissibly high level of generality, contrary to this court\u2019s repeated warnings in\u00a0Kisela v. Hughes<\/em>,\u00a0City & County of San Francisco v. Sheehan<\/em>, and\u00a0Ashcroft v. al-Kidd<\/em>; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.<\/p>\n

(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)<\/p>\n

Saldano\u00a0v. Texas<\/em>,\u00a025-5749<\/p>\n

Issue<\/strong>: (1) Whether the Texas Court of Criminal Appeals’ creation of a novel and unforeseeable procedural bar in its interpretation of Texas Criminal Code\u00a0Article 11.071, Section 5, precludes review of petitioner’s\u00a0Atkins<\/em>\u00a0claim under federal law; and (2) whether a state-created procedural rule may bar review of an\u00a0Atkins<\/em>\u00a0claim consistent with due process where the state has conceded, as here, that the individual meets the criteria for intellectually disability and the procedural gateway necessary to allow for a merits review.<\/p>\n

(Relisted after the Mar. 20, Mar. 27, May 28, and June 4 conferences.)<\/p>\n

Alabama v. Sykes<\/em>, 25-847<\/p>\n

Issue: (1) Whether courts must reverse for\u00a0Griffin v. California<\/em>\u00a0error without examining a prosecutor\u2019s comment in context and without finding prejudice; or (2) whether\u00a0Griffin<\/em>\u00a0should be overruled.<\/p>\n

(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)<\/p>\n

Alabama v. Powell<\/em>, 25-848<\/p>\n

Issue: (1) Whether courts must reverse for\u00a0Griffin v. California<\/em>\u00a0error without examining a prosecutor\u2019s comment in context and without finding prejudice; or (2) whether\u00a0Griffin<\/em>\u00a0should be overruled.<\/p>\n

(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)<\/p>\n

E.D. ex rel. Duell v. Noblesville School District<\/em>, 25-906<\/p>\n

Issue: Whether\u00a0Hazelwood School District v. Kuhlmeier<\/em>\u00a0applies (1) whenever student speech might be erroneously attributed to the school; (2) when student speech occurs in the context of an \u201corganized and structured educational activity\u201d; or (3) only when student speech is part of the \u201ccurriculum.\u201d<\/p>\n

(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)<\/p>\n

Smith v. Kind<\/em>, 25-943<\/p>\n

Issue: Whether, when a government official acts in an obviously unconstitutional manner, that is sufficient for the violation to be clearly established, or it is a violation clearly established only if there is binding precedent in a factually indistinguishable case.<\/p>\n

(Relisted after the Apr. 17, April 24, May 1, May 14, May 21, May 28, and June 4 conferences.)<\/p>\n

McCarthy v. Hernandez<\/em>, 25-748<\/p>\n

Issues: <\/strong>(1) Whether the U.S. Court of Appeals for the 2nd Circuit violated the\u00a0\u00a0by finding a state jury instruction invalid under\u00a0Missouri v. Seibert<\/em>; and (2) whether the 2nd Circuit violated AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant\u2019s guilt that was unaffected by the response.<\/p>\n

(Relisted after the Apr. 24, May 1, May 14, May 21, May 28, and June 4 conferences.)<\/p>\n

Dershowitz v. Cable News Network, Inc.<\/em>, 25-770<\/p>\n

Issues: <\/strong>(1) Whether a defendant\u2019s systematic omission of qualifying and limiting language from a plaintiff\u2019s recorded statement constitutes proof of actual malice under\u00a0New York Times Co. v. Sullivan<\/em>, sufficient to survive summary judgment; (2) whether the actual malice standard established in\u00a0Sullivan<\/em>, or as extended by its progeny, should be discarded altogether or at least as to private citizens who are public figures; and (3) whether this court should modify\u00a0Sullivan\u2019s<\/em>\u00a0clear-and-convincing and burden-of-proof evidentiary standards.<\/p>\n

(Relisted after the May 21, May 28, and June 4 conferences.)<\/p>\n

Newberry v. Texas<\/em>, 25-862<\/p>\n

Issues: <\/strong>(1) Whether, where the petitioner, the state, and the habeas court all agree that a conviction is unconstitutional and must be reversed, it violates due process for a state superior court to summarily deny relief without explanation; and (2) whether the prosecution violated\u00a0Brady v. Maryland<\/em>\u00a0by suppressing evidence contradicting its proof of the aggravating element distinguishing capital murder from non-capital homicide.<\/p>\n

(Relisted after the May 28 and June 4 conferences.)<\/p>\n

Genalo v. Black<\/em>, 25-886<\/p>\n

Issues: <\/strong>(1) Whether there is a point at which an alien\u2019s detention under\u00a0Section 1226(c), pending a decision on whether he is to be removed, becomes \u201cunreasonably prolonged,\u201d such that due process requires a bond hearing; and (2) whether, if so, due process in such a bond hearing requires placing the burden on the government to justify the alien\u2019s continued detention by clear and convincing evidence.<\/p>\n

(Relisted after the May 28 and June 4 conferences.)<\/p>\n

Guerrero v. Johnson<\/em>, 25-1003<\/p>\n

Issue: <\/strong>Whether a claim relies on a \u201ca new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable\u201d when the habeas petitioner could have asserted a claim based on the rule in a prior federal habeas petition.<\/p>\n

(Relisted after the May 28 and June 4 conferences.)<\/p>\n

Kian v. Florida<\/em>, 25-6623<\/p>\n

Issues: <\/strong>Whether the petitioner was deprived of his right, under the Sixth and 14th Amendments, to a trial by a 12-person jury when the defendant is charged with a serious felony.<\/p>\n

Read more The latest on tariff refunds<\/a><\/p>\n

(Relisted after the May 28 and June 4 conferences.)<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The Relist Watch column examines cert petitions that the Supreme Court has \u201crelisted\u201d for its upcoming conference. A short explanation of relists is available here. Read more The Supreme Court\u2019s confusing use of \u201cprinciples\u201d Since our last post, the Supreme Court has been rather restrained at working through relists. This week, the justices acted on […]<\/p>\n","protected":false},"author":1,"featured_media":82,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-173","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-interesting"],"yoast_head":"\nRace and recorded calls - American Service Review<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/americanservicereview.com\/?p=173\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Race and recorded calls - American Service Review\" \/>\n<meta property=\"og:description\" content=\"The Relist Watch column examines cert petitions that the Supreme Court has \u201crelisted\u201d for its upcoming conference. 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A short explanation of relists is available here. Read more The Supreme Court\u2019s confusing use of \u201cprinciples\u201d Since our last post, the Supreme Court has been rather restrained at working through relists. This week, the justices acted on […]","og_url":"https:\/\/americanservicereview.com\/?p=173","og_site_name":"American Service Review","article_published_time":"2026-06-10T14:44:18+00:00","author":"admin","twitter_card":"summary_large_image","twitter_misc":{"Written by":"admin","Est. reading time":"14 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/americanservicereview.com\/?p=173#article","isPartOf":{"@id":"https:\/\/americanservicereview.com\/?p=173"},"author":{"name":"admin","@id":"https:\/\/americanservicereview.com\/#\/schema\/person\/220bfdac1627513926924476de32dedb"},"headline":"Race and recorded calls","datePublished":"2026-06-10T14:44:18+00:00","mainEntityOfPage":{"@id":"https:\/\/americanservicereview.com\/?p=173"},"wordCount":2782,"commentCount":0,"image":{"@id":"https:\/\/americanservicereview.com\/?p=173#primaryimage"},"thumbnailUrl":"https:\/\/americanservicereview.com\/wp-content\/uploads\/2026\/05\/e773292dd0c6b55fa2621f397d6050bf.jpg","articleSection":["Interesting"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/americanservicereview.com\/?p=173#respond"]}]},{"@type":"WebPage","@id":"https:\/\/americanservicereview.com\/?p=173","url":"https:\/\/americanservicereview.com\/?p=173","name":"Race and recorded calls - 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