April 1, 2026 | Volume 33, Issue 9
This Report summarizes opinions issued on March 20, 23, and 25, 2026 (Part I); and cases granted review on March 30, 2026 (Part II).
Opinions
Olivier v. City of Brandon, Miss., 24-993.
The Court unanimously held that Heck v. Humphrey, 512 U.S. 477 (1994), does not bar a §1983 claim seeking purely prospective relief where the plaintiff has been previously convicted under the state law challenged as unconstitutional. Gabriel Olivier preaches his religious views from the sidewalks near an amphitheater in the City of Brandon. In 2019, the city adopted an ordinance requiring those engaging in “protests” or “demonstrations” to stay within a “designated protest area” when the amphitheater held events. In 2021, Olivier was arrested for violating that ordinance; he paid a $304 fine and served no jail time. Some time later, Olivier filed suit against the city in federal court under 42 U.S.C. §1983, seeking a declaration that the ordinance infringes upon the Free Speech Clause of the First Amendment and an injunction preventing the city from enforcing the ordinance in the future. He did not seek reversal of, nor compensation for, his prior conviction. The district court and the Fifth Circuit held that Olivier’s suit was barred by Heck because, if successful, it would “necessarily imply the invalidity of [his] criminal conviction.” In an opinion by Justice Kagan, the Court reversed and remanded.
The Court explained that, before its “decision in Heck, the City would have had no plausible basis for claiming Olivier’s suit is barred. That type of suit, as no one here disputes, falls within §1983’s heartland: Assuming a credible threat of prosecution, a plaintiff may bring a §1983 action to challenge a local law as violating the Constitution and to prevent that law’s future enforcement.” And “in Wooley v. Maynard, 430 U.S. 705 (1977), th[e] Court held that rule to apply even when the plaintiff (like Olivier) was previously convicted under the challenged law.” Were it otherwise, the plaintiff “would be trapped ‘between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity’ so as to avoid yet another criminal prosecution.” In Heck, though, the Court barred “§1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement.” And, the lower courts held here, that’s precisely what Olivier’s suit would do. The Court concluded that Heck is narrower than the lower courts thought.
In Edwards v. Balisok, 520 U.S. 641 (1997), the Court stated that “[o]rdinarily, a prayer for [] prospective relief” may “properly be brought under §1983” because it does not depend on showing the “invalidity of a previous” sentencing decision. See also Wilkinson v. Dotson, 544 U.S. 74, 77 (2005) (making similar statement). All told, held the Court, Heck merely “prohibits the use of §1983 to challenge the validity of a prior conviction or sentence so as to obtain release from custody or monetary damages.” But “Olivier is not challenging the ‘validity of [his] conviction or sentence,’ for the purpose either of securing (or speeding) release or of obtaining monetary damages. Instead, Olivier is seeking (in Wooley’s words) ‘wholly prospective’ relief—’only to be free from prosecutions for future violations’ of the city ordinance. And that request, as Balisok and Dotson recognized, falls outside habeas’s core—and likewise outside Heck’s concerns.” (Citations omitted.)
The Court acknowledged that language in Heck could be read to support the city’s contention that the Heck bar applies whenever a judgment would “necessarily imply the invalidity of [his] prior conviction[].” And “[t]o declare the city ordinance unconstitutional, as Olivier seeks, would be to imply that no one—including Olivier—should have been convicted under that law.” But “[t]his Court has often cautioned that ‘general language in judicial opinions should be read as referring in context to circumstances similar to the circumstances then before the Court and not referring to quite different circumstances that the Court was not then considering.’” The language upon with the city relied “was used in Heck to identify claims that were really assaults on a prior conviction, even though involving some indirection.” Here, by contrast, “[b]oth in the allegations made, and in the relief sought, the suit is all future-oriented.” The Court added that if Olivier’s reading of Heck were correct, it would mean that even a different person without a prior conviction could not bring this suit because “[a] judgment in that suit too would demonstrate, and in just the same way, that Olivier’s conviction was unconstitutional.” But that cannot be.
The Court left open two questions. First, whether a person may bring a purely prospective suit while he is in custody for violating the statute challenged. Second, whether a person is subject to Heck if he was “never in custody for his conviction, so never had a chance to challenge it in federal habeas proceedings.”
Zorn v. Linton, 25-297.
By a 6-3 vote, the Court summarily reversed a Second Circuit decision that denied qualified immunity to a police officer who had been sued for using excessive force. After protestors staged a sit-in at Vermont’s state capitol, police officers warned the protestors they would be arrested for trespassing if they refused to leave. Officer Jacob Zorn asked Shela Linton “to stand up and warned her that he would eventually have to use force to remove her. She refused to stand. Zorn took Linton’s arm, put it behind her back [in a rear wristlock], placed pressure on her wrist, and lifted her to her feet.” She “continued to jerk her arms and fell back to the floor.” When she refused to stand up, “three officers picked her up by her arms and legs and carried her outside.” Linton sued Zorn under 42 U.S.C. §1983 for violating her Fourth Amendment right to be free of excessive force. Zorn moved for summary judgment, arguing that he was entitled to qualified immunity. The district court agreed. A divided panel of the Second Circuit reversed. The court held that its decision in Amnesty America v. West Hartford, 361 F.3d 113 (2004), “clearly establish[ed] that the gratuitous use of pain compliance techniques—such as a rear wristlock—on a protestor who is passively resisting arrest constitutes excessive force.” In a per curiam opinion, the Court reversed.
The Court concluded that the Second Circuit failed to identify a case clearly establishing that Zorn’s conduct was unconstitutional. The Court explained that officials are entitled to qualified immunity unless a court “’identif[ies] a case where an officer acting under similar circumstances . . . was held to have violated’ the Constitution.” The Second Circuit relied on Amnesty America, but that case “considered a wide range of allegations of excessive force” including not only rear wristlocks, but also that “officers rammed a protester’s head into a wall” and “dragged another protester across the ground.” And there was no evidence that the officers warned the protestors before using force. Further, Amnesty America did not hold that those actions were unlawful. The court remanded for a jury trial because it concluded that a triable issue of fact existed as to whether the officers “gratuitously inflicted pain.” Thus, “[r]easonable officials would not ‘interpret Amnesty America to establish’ that using a routine wristlock to move a resistant protester after warning her, without more, violates the Constitution.”
The Court stated that the Second Circuit erred by extracting a general principle from Amnesty America “that the gratuitous use of pain compliance techniques—such as a rear-wristlock—on a protestor who is passively resisting arrest constitutes excessive force.” And even so, that principle lacks the requisite “high degree of specificity.” It does not “obviously resolve” whether the use of such techniques after “repeated warnings” violates the Constitution and fails to define “gratuitous.” Therefore, Zorn was entitled to qualified immunity.
Justice Sotomayor, joined by Justices Kagan and Jackson, dissented. Noting that the facts must be construed in the light most favorable to Linton, Justice Sotomayor concluded that the Second Circuit correctly found that Zorn used excessive force. Thus, the first prong of the qualified immunity analysis was satisfied. The totality of the circumstances confirms this because the crime of trespassing is not “particularly severe,” Linton posed a relatively low safety risk, and Linton suffered permanent damage to her wrist and shoulder because of the incident. Also, a jury could reasonably find that Linton was only passively resisting arrest because she was “in too much pain to do so” and that the use of a rear wristlock was not reasonably related to any need to use force.
Addressing the second prong of the qualified immunity analysis, Justice Sotomayor concluded that Amnesty America clearly established that Zorn’s conduct was unlawful. “Two plaintiffs in that case were treated much like Linton was: Officers ‘lift[ed] and pull[ed]’ them off the floor ‘by pressing their wrists back against their forearms in a way that caused lasting damage.’” Justice Sotomayor was unconvinced by the majority’s attempts to distinguish Amnesty America. First, the officers in that case only used force after verbal commands were unsuccessful, implying that they did issue warnings. Here, the officers that approached Linton did not issue any clear request or demand or warn her before placing her in a rear wristlock. In stating otherwise, the majority failed to construe the facts in favor of Linton. Second, Amnesty America specifically addressed rear wristlocks, despite considering a “wide range” of conduct. In effect, said Justice Sotomayor, the majority required a “factually identical ‘case[] directly on point,’ despite the Court’s rejection of such a standard.”
Cox Communications, Inc. v. Sony Music Entertainment, 24-171.
The Court held without dissent that “a company is not liable as a copyright infringer for merely providing a service to the general public with knowledge that it will be used by some to infringe copyrights.” The internet allows for the “widespread” illegal sharing of copyrighted works, such as songs and movies. The Copyright Act authorizes copyright owners to sue these copyright infringers. 17 U.S.C. §501. Here, Sony Music Entertainment and other major copyright owners sued Cox Communications, which provided the internet connections the infringers used. They contended Cox was liable for copyright infringement because it provided internet services to known infringers. Based on this theory of infringement, Sony Music secured a billion-dollar verdict against Cox in the Eastern District of Virginia. The Fourth Circuit affirmed, reasoning that by providing internet service to known infringers, Cox was contributory liable. In an opinion by Justice Thomas, the Court reversed and remanded.
The Court held that “[t]he provider of a service is contributorily liable for the user’s infringement only if it intended that the provided service be used for infringement.” The Court noted two ways a plaintiff could establish contributory liability: by showing either (1) the party affirmatively induced the infringement, or (2) the party sold a service tailored to infringement. As to the former, “[a] provider induces infringement if it actively encourages infringement through specific acts.” For example, the Court held that Grokster was liable for inducement where the company “promoted and marketed [its] software as a tool to infringe copyrights” and the “principal object” of its business models “was use of [its] software to download copyrighted works.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). And, held the Court, “[a] service is tailored to infringement if it is not capable of substantial or commercially significant noninfringing uses.” (Quotation marks omitted.) By contrast, the Court has “repeatedly made clear that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe.”
Applying those principles here, the Court found that “Cox is not contributorily liable for the infringement of Sony’s copyrights.” Indeed, holding Cox liable merely for failing to terminate internet service to infringing accounts would require an expansion of secondary copyright liability. The Court explained that “Cox neither induced its users’ infringement nor provided a service tailored to infringement.” “Cox repeatedly discouraged copyright infringement by sending warnings, suspending services, and terminating accounts. As for providing a service tailored to infringement, Cox’s Internet service was clearly capable of ‘substantial’ or ‘commercially significant’ noninfringing uses.”
Justice Sotomayor filed an opinion concurring in the judgment, which Justice Jackson joined. Justice Sotomayor maintained that the majority incorrectly limits secondary liability to only two forms, even though past precedents “left open the possibility that other common-law theories of such liability, like aiding and abetting, could apply in the copyright context.” Justice Sotomayor agreed that Cox could not be held liable on an aiding and-abetting theory because the plaintiffs lacked evidence Cox had the requisite intent to aid copyright infringement. But Justice Sotomayor lamented that, under the majority’s decision, internet providers face no “realistic probability of secondary liability for copyright infringement, regardless of whether they take steps to address infringement on their networks and regardless of what they know about their users’ activity.”
Rico v. United States, 24-1056.
By an 8-1 vote, the Court held that a defendant’s absconding from federal supervised release does not extend the court-ordered term of supervised release for so long as the defendant remains out of contact with their probation officer. In 2010, Isabel Rico pleaded guilty to federal drug trafficking charges and was sentenced to seven years in prison to be followed by a term of four years of supervised release. A few months after her release in 2017, she violated her supervised release conditions, resulting in a two-month term of imprisonment and a new 42-month supervised release term set to expire in June 2021. After leaving prison in December 2017, she moved residences without informing her probation officer, and authorities were unable to locate her again until January 2023. During that period, Rico committed three state-law criminal offenses: evading police and driving without a license in January 2021 (before her term of supervised release was set to expire); and possession for sale of illicit drugs in January 2022 (after the end date of her ordered term). Under the federal sentencing guidelines, that third offense, if committed while on supervised release, amounts to a “Grade A violation,” with an associated advisory range of 33 to 36 months of imprisonment. Based on these guidelines, the federal district court sentenced Rico to 16 months of incarceration, followed by two more years of supervised release—a term it described as a downward deviation from the guidelines’ maximum. On appeal, Rico argued that “the court had no lawful authority to treat her January 2022 state drug offense as an independent supervised release violation” because “that offense occurred after her pre-existing term of federal supervised release expired in June 2021.” The Ninth Circuit rejected this argument, reasoning that her “abscondment ‘tolled’ the clock so that her term continued to run until federal authorities caught up with her in 2023.” In an opinion by Justice Gorsuch, the Court reversed and remanded.
As a preliminary matter, the Court rebuked the Ninth Circuit’s characterization of its rule as a “tolling” provision. Rather, the Ninth Circuit holding effectively extended the term of supervised release, rather than simply pausing it. The Court then reasoned that, while “[t]he Sentencing Reform Act provides courts with many tools to address defendants who fail to report or otherwise violate their supervised release conditions,” “automatically extending a term of supervised release is not among them.” The Court explained that the Act provides requirements for when a term of supervised release begin and ends, as well as its maximum duration (18 U.S.C. §§3583(b),3624(e)); specific procedures for revoking release and punishing absconders (§§3563(b)(15), (17), 3583(e)(3), (g)); and express conditions and procedural requirements for extending or tolling a term of supervised release (e.g., §§3583(e)(2), (i), 3624(e)). Given the breadth and specificity with which Congress addressed these issues in the Act, the conspicuous absence of any discernable authorization for the Ninth Circuit’s “automatic extension rule” implies that none exists.
In reaching this conclusion, the Court rejected the government’s appeals to text, precedent, common law, and public policy. First, the Court noted that the Act’s repeated declaration that a defendant on supervised release “shall, during the term imposed, be supervised by a probation officer” (§§3601, 3603(2), (3), 3624(e)) did not justify the Ninth Circuit’s view that a person who absconded was not on supervised release. That’s because those provisions “merely described” the duties of the probation officer and clarified that “a probation officer shall supervise a defendant only ‘during the term imposed’ by the sentencing court.” Second, the Court distinguished Mont v. United States, 587 U.S. 514 (2019), and United States v. Johnson, 529 U.S. 53 (2000), noting that “Mont simply recognized that §3624(e)’s express terms suspend” a defendant’s supervised release while “imprisoned for a separate state offense,” and “Johnson’s only relevance” was that it “reject[ed] yet one more effort to adorn the Act with a rule Congress could have adopted but did not enact.” Third, the Court opined that the longstanding common law understanding that “a defendant’s escape from prison and his recapture generally does not count toward the discharge of his sentence” was already codified in §3624(e). And that’s markedly different from extending supervised release because, while an escaped prisoner cannot be said to be serving his prison sentence in any sense, an absconded releasee remains subject to the conditions of supervised release and culpable for violating them throughout the ordered term. Finally, the Court stated that any policy problems arising from existing limitations on federal courts’ authority to extend supervised release where a defendant absconds must be directed to, and rectified by, Congress.
Justice Alito wrote a dissenting opinion. He expressed skepticism towards the idea that someone who has absconded from probation’s oversight remains on supervised release, a phenomenon he describes as “unsupervised, supervised release.” More importantly, Justice Alito characterized the question before the Court as “whether the sentencing judge’s consideration of the drug offense was lawful.” He viewed the majority’s resolution of whether Rico’s term of supervised release continued to run while she remained on the lam as “pointless” and immaterial to the outcome of this case. As he sees it, the advisory terms from §7B1.14(a) of the Sentencing Guidelines neither contravene nor supersede the sentencing court’s authority granted under the Act. The trial judge was expressly authorized to both consider the drug offense under §3553(a) and impose a 16-month term of imprisonment “‘outside the recommended guidelines range’”—regardless of whether the resulting term was an upward deviation from the Grade C 8-to-14-month-range or a downward deviation from the Grade A 33-to-36-month range.
Cases Granted Review
Younge v. Fulton Judicial Circuit District Attorney’s Office, 25-352.
This case presents two issues: (1) in a federal civil case where a defendant has filed an answer without pleading an affirmative defense, whether the defendant may nonetheless assert that affirmative defense as the basis for a summary judgment motion, without amending or seeking to amend its answer to plead that affirmative defense; and (2) whether a defendant may do so after the deadline for amendment under the scheduling order, absent a showing of good cause and the trial judge’s consent.
Rule 8(c)(1) of the Federal Rules of Civil Procedure requires that “a party must affirmatively state any . . . affirmative defense” in its answer. If a defendant has failed to assert an affirmative defense in its original answer, a motion for leave to amend the answer to add that affirmative defense is governed by Rule 15(a). Except with regard to amendments made within 21 days of the original answer, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Under this rule, a motion to amend can be denied for undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by previous amendments, and undue prejudice to the opposing party. Amendments are further addressed by Rule 16(b), which requires the trial judge to issue a scheduling order that limits the time to amend the pleadings, and provides that “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
In this case, petitioner Jasmine Younge alleged that the Fulton County District Attorney’s Office fired her from her position as Deputy Chief of Staff because of her pregnancy, in violation of Title VII of the Civil Rights Act of 1964. The DA’s office filed an answer denying this claim and raising several affirmative defenses. Relevant here, the answer did not raise the defense that Younge was excluded from Title VII coverage by §2000e(f) because her responsibilities made her a member of the personal staff of an elected official, covered exclusively by the Government Employees Rights Act. The DA’s office did not seek to amend the answer and add that affirmative defense by the deadline set in the scheduling order, but moved for summary judgment on this basis a year later. Both the district court and the Eleventh Circuit (at 2025 WL 974309) applied the rule, articulated in Hassan v U.S. Postal Service, 842 F.2d 260, 263 (11th Cir. 1988), that “a district court may receive evidence of an unpleaded affirmative defense if the plaintiff was not ‘prejudiced’ by the defendant’s failure to plead the defense in its answer.”
Younge contends that the issues presented here are subject to a longstanding and fragmented split of authority among the federal circuits. On the merits, Younge urges the Court to reject Hassan. She maintains that there is no ambiguity about what Rules 8, 15, and 16 say or mean, and that these are fixed requirements in federal civil cases, “not a laundry list of general purposes to be implemented by the lower courts on an ad hoc case-by-case basis.” She further claims that allowing defendants to circumvent the good cause and consent requirements of these rules (and ultimately prevail through summary judgment) unfairly imposes asymmetrical obligations on the parties and undermines the notice function the pleading rules were meant to serve.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Lauren Watford, Supreme Court Fellow
- Kevin Morrow, Supreme Court Fellow
- Michael Butera, Supreme Court Fellow
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