In City and County of San Francisco v. Sheehan, the Court per Justice Alito dismissed the first question presented as improvidently granted.
We granted certiorari to consider two questions relating to the manner in which San Francisco police officers arrested a woman who was suffering from a mental illness and had become violent. After reviewing the parties’ submissions, we dismiss the first question as improvidently granted.
The majority opinion chides the petitioner for switching their argument once cert was granted.
Having persuaded us to grant certiorari, San Francisco chose to rely on a different argument than what it pressed below. … The argument that San Francisco now advances is predicated on the proposition that the ADA governs the manner in which a qualified individual with a disability is arrested.
In the absence of “adversarial briefing,” the Court cannot resolve this issue.
Whether the statutory language quoted above applies to arrests is an important question that would benefit from briefing and an adversary presentation. But San Fran- cisco, the United States as amicus curiae, and Sheehan all argue (or at least accept) that §12132 applies to arrests. No one argues the contrary view. As a result, we do not think that it would be prudent to decide the question in this case.
Let’s see. The plaintiffs, San Francisco, and the Obama Administration all agree–sounds like Sue and Settle, SCOTUS edition! A Professor friend on Facebook noted that disability advocates pressured the San Francisco City Attorney’s office to change their ADA argument. (Update: See this letter from Disability Rights California urging San Francisco to withdraw the appeal).
As a result, the Court DIGs the first question:
Because certiorari jurisdiction exists to clarify the law, its exercise “is not a matter of right, but of judicial discre tion.” Supreme Court Rule 10. Exercising that discretion, we dismiss the first question presented as improvidently granted. See, e.g., Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 360, n. 1 (2001) (partial dismissal); Parker v. Dugger, 498 U. S. 308, 323 (1991) (same).
Justice Scalia, joined by Justice Kagan, was no so kind to the Golden Gate City. They would have dismissed both questions.
Imagine our surprise, then, when the petitioners’ prin- cipal brief, reply brief, and oral argument had nary a word to say about that subject. Instead, petitioners bluntly announced in their principal brief that they “do not assert that the actions of individual police officers [in arresting violent and armed disabled persons] are never subject to scrutiny under Title II,” and proclaimed that “[t]he only ADA issue here is what Title II requires of individual officers who are facing an armed and dangerous suspect.” Brief for Petitioners 34 (emphasis added). In other words, the issue is not (as the petition had asserted) whether Title II applies to arrests of violent, mentally ill individuals, but rather how it applies under the circumstances of this case, where the plaintiff threatened officers with a weapon. We were thus deprived of the opportunity to consider, and settle, a controverted question of law that has divided the Circuits, and were invited instead to decide an ADA ques- tion that has relevance only if we assume the Ninth Cir- cuit correctly resolved the antecedent, unargued question on which we granted certiorari. The Court is correct to dismiss the first QP as improvidently granted.
Justice Scalia made similar points during oral arguments. Why did San Francisco do it? To induce certiorari.
Why, one might ask, would a petitioner take a position on a Circuit split that it had no intention of arguing, or at least was so little keen to argue that it cast the argument aside uninvited? The answer is simple. Petitioners in- cluded that issue to induce us to grant certiorari. … It is unlikely that we would have granted certiorari on that question alone.
Because this was a “bait and switch,” Justice Scalia would not reward the petitioners with review of the related non-“certworthy” fact-based questions.
But (and here is what lies beneath the present case) when we do grant certiorari on a question for which there is a “compelling reason” for our review, we often also grant certiorari on attendant questions that are not independently “certworthy,” but that are sufficiently connected to the ultimate disposition of the case that the efficient administration of justice supports their consideration. In other words, by promising argument on the Circuit conflict that their first question presented, petitioners got us to grant certiorari not only on the first question but also on the second.
I would not reward such bait-and-switch tactics by proceeding to decide the independently “uncertworthy” second question. And make no mistake about it: Today’s judgment is a reward. It gives the individual petitioners all that they seek, and spares San Francisco the signifi- cant expense of defending the suit, and satisfying any judgment, against the individual petitioners.* I would not encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.
Scalia reiterates that this is not a Court of error correction:
Ex ante, how- ever—before we considered and deliberated upon the second QP but after petitioners’ principal brief made clear that they would not address the Circuit conflict presented by the first QP—we had no more assurance that this question was decided incorrectly than we do for the thousands of other uncertworthy questions we refuse to hear each Term. Many of them have undoubtedly been decided wrongly, but we are not, and for well over a century have not been, a court of error correction. The fair course—the just course—is to treat this now-nakedly uncertworthy question the way we treat all others: by declining to decide it. In fact, there is in this case an even greater reason to decline: to avoid being snookered, and to deter future snookering.
Justice Alito, in a footnote, explains why San Francisco should not be “punish[ed]” for their chicanery.
Not satisfied with dismissing question one, which concerns San Francisco’s liability, our dissenting colleagues would further punish San Francisco by dismissing question two as well. See post, at 3 (opinion of SCALIA, J.) (arguing that deciding the second question would “reward” San Francisco and “spar[e it] the significant expense of defending the suit, and satisfying any judgment, against the individual petitioners”). But question two concerns the liability of the individual officers. Whatever contractual obligations San Francisco may (or may not) have to represent and indemnify the officers are not our concern. At a minimum, these officers have a personal interest in the correctness of the judgment below, which holds that they may have violated the Constitution. Moreover, when we granted the petition, we determined that both questions independently merited review. Because of the importance of qualified immunity “to society as a whole,” Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982), the Court often corrects lower courts when they wrongly subject individual officers to liability. See, e.g., Carroll v. Carman, 574 U. S. ___ (2014) (per curiam); Wood v. Moss, 572 U. S. ___ (2014); Plumhoff v. Rickard, 572 U. S. ___ (2014); Stanton v. Sims, 571 U. S. ___ (2013) (per curiam); Reichle v. Howards, 566 U. S. ___ (2012).
BTW, Justice Scalia refers to the “Question Presented” as “QP.”
The first question presented (QP) in the petition for certiorari was …
The Court is correct to dismiss the first QP as improvidently granted …
The second QP implicates, at most, the latter.
Ex ante, how- ever—before we considered and deliberated upon the second QP but after petitioners’ principal brief made clear that they would not address the Circuit conflict presented by the first QP—we had no more assurance that this question was decided incorrectly than we do for the thousands of other uncertworthy questions we refuse to hear each Term.
A quick search of the “Supreme Court” database on Westlaw reveals that this was the first time the abbreviation “QP” was used. The phrase “uncertworthy” has been used twice before, in Justice White’s dissental in Davis v. Kemp (1985) and Justice Blackmun’s dissental Mellon Bank v. Southland Mobile Homes of South Carolina (1978). This seems to be the first time it was used in a merits case.
Update: Mark Joseph Stern has more on Slate on the rationale behind SF’s decision to abandon the first question presented.
As ThinkProgress’s Ian Millhiser pointed out, this is a strangely naïve accusation from the (usually worldly) Scalia and Kagan. As soon as San Francisco appealed this case to the Supreme Court, civil rights groups implored Mayor Ed Lee and City Attorney Dennis Herrera to give it up. …
We can’t know for sure whether San Francisco’s city attorney modified his appeal following pleas from the civil rights community or intervention by the mayor. But the city really had no other reason to give up its tactical advantage so suddenly. And, presuming it did drop its claim in the interest of justice, San Francisco certainly wouldn’t be alone. Over the past several years, for instance, fair-housing advocates have twice convinced litigants to settle rather than push their claims to the Supreme Court. (The court finally got ahold of the fair-housing issue this term, and eager conservative justices licked their chops during arguments.) In 2012 the disability rights community also convinced Washington Gov. Christine Gregoire to abandon a case that would give the Supreme Court the opportunity to overrule a vital ADA decision from 1999. The 1999 case was decided with Justice Sandra Day O’Connor in the majority. Now O’Connor is gone, replaced by Justice Samuel Alito. And no progressive wants Alito anywhere near a civil rights case.
Anybody who cares about disability rights, then, should be grateful for San Francisco’s dodge. It may have been inglorious and, legally speaking, a little unseemly. But it reflected a pragmatism that has been conspicuously absent from recent progressive litigation. San Francisco’s city attorney won’t win many laurels for his last-minute evasion. But his maneuvering saved the rest of the country from a ruling that may have given cops free rein to treat mentally disabled people like typical violent offenders—and pull the trigger accordingly.