2020—A Tenth Circuit panel rules (in Bond v. City of Tahlequah) that police officers were not entitled to qualified immunity on a claim that they violated a Fourth Amendment right to be free from excessive force when they shot an intoxicated man who was threatening his ex-wife and who assaulted them with a hammer.
In October 2021, the Supreme Court, without any registered dissent, will summarily reverse the ruling. The officers “plainly did not violate any clearly established law,” and the panel “contravened … settled principles” in concluding otherwise.
2022—A divided panel of the Sixth Circuit rules (in Fields v. Jordan) that a man who had been convicted in state court of breaking into an elderly woman’s home, slashing her throat, and stabbing a knife through her head was entitled to federal habeas relief. In considering the defendant’s claim that he was too intoxicated to have entered the woman’s home by unscrewing a porch window with a knife, the jury—in the panel majority’s view—improperly conducted its own experiment by using that knife to unscrew the screws on a cabinet in the jury room.
In November 2023, the en banc Sixth Circuit will reject the panel’s ruling by a vote of 10 to 5. Judge Eric Murphy explains for the en banc majority that the Supreme Court has never addressed when jury experiments are unlawful. The predicate for federal habeas relief—i.e., that the state court unreasonably applied “clearly established Federal law, as determined by the Supreme Court”—is thus missing.