Relist rodeo: firearm restrictions, searches incident to arrest, DNA evidence, and “clearly established” law

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

It’s only December, but the Supreme Court has only one more month to grant all the cases it needs to fill out the rest of this term’s argument calendar. To get that done, it has had to go into overdrive mode on the relist front.

On Friday (instead of Monday morning, to maximize briefing before argument), the justices added four new argued cases that we [previewed last week](https://www.scotusblog.com/2025/12/relistpa…

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

On Friday (instead of Monday morning, to maximize briefing before argument), the justices added four new argued cases that we previewed last week: the birthright citizenship case, a case involving jurisdiction over arbitration matters, a case about the scope of the Rooker-Feldman doctrine (which bars federal courts from effectively sitting in review of final state-court judgments), and one about the proper venue for trying criminal cases.

That was just the warmup. On Monday, the court summarily reversed in a state appellate court decision and held that the federal Americans with Disability Act and the Rehabilitation Act of 1973 preempt a state statute that tried to ratchet up the burden of proof to shield health-care providers from liability during a public health emergency. The court also called for the views of the solicitor general in three cases: one about whether a state vaccine requirement constituted an “undue hardship” that excused employers from making reasonable accommodation to employees’ religious beliefs under Title VII of the Civil Rights Act of 1964; one about whether Title IX of the Education Amendments Act of 1972 creates a private right of action for sex discrimination for employees of federally funded schools; and one about how to measure just compensation for condemnations of property under the Natural Gas Act.

Now on to the new business. This week brings 25 new relists across six topics. Eighteen are copycat challenges to 18 U.S.C. § 922(g)(1) – prohibiting felons from possessing firearms – of the kind we previewed last week. That brings the total number of § 922(g)(1) relists to 62. Speaking of guns…

Challenges to firearm restrictions

After a series of mass shootings, several jurisdictions tightened restrictions on “large-capacity” magazines, often defined as those holding more than 10 rounds. California and Washington both ban the sale or transfer of such magazines; in 2016, California went further and banned possession, forcing owners to modify, transfer, or dispose of their magazines.

Duncan v. Bonta is a long-running challenge to California’s prohibition ban. A district court struck the law down under the Second Amendment and enjoined it; a divided panel of the U.S. Court of Appeals for the 9th Circuit affirmed. But the full court of appeals reheared the case and reversed the district court, upholding the constitutionality of the law. The Supreme Court then directed the court to reconsider the case in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, directing that restrictions on firearm use be considered in light of established historical traditions. On remand, the district court again invalidated the ban; the en banc Ninth Circuit again reversed, this time holding that large-capacity magazines are not “arms” at all, but mere accessories, and that California’s law fits within historical traditions of regulation. The dissents did not hold back. Judge Patrick Bumatay accused the majority of defying Bruen; Judge Lawrence VanDyke called the en banc opinion “terribly unprincipled,” charging that the court simply reissued its pre-Bruen ruling while rebranding interest balancing as history. (Part of his dissent was delivered orally by online video.)

Challenger Virginia Duncan argues that the circuits are split on two questions: whether magazines are “arms” and whether the “common use” of an item is part of what is known as the text-and-history inquiry. Twenty-seven states, led by Montana and Idaho, filed an amicus brief accusing lower courts in gun-restrictive states of, among other things, relying on “loose historical analogies.” California’s brief in opposition insists that the 9th Circuit got it right.

Gator’s Custom Guns, Inc. v. Washington challenges Washington’s parallel ban on the manufacture, import, distribution, and sale of magazines holding more than 10 rounds. A state trial judge struck the law down, reasoning that magazines have no purpose other than to facilitate firing and are commonly and lawfully possessed; he thus concluded a flat sales ban violates both the Second Amendment and the state constitution. The Washington Supreme Court reversed 7–2, echoing the 9th Circuit’s reasoning that such magazines are “attachments” or “accessories,” not “Arms,” and that no firearm requires a magazine of that capacity to function. The dissent warned that this approach invites legislatures to “sidestep the Second Amendment … at the component level,” and criticized the majority for rebranding interest balancing as a historical generality that “society can ban dangerous things.”

The petition, filed by the same team as Duncan (Paul Clement and Erin Murphy), and backed by many of the same amici, argues that lower courts are confused and that the court needs to clarify both the “arms” question and how “common use” fits into Bruen’s framework.

But wait! There’s more. Viramontes v. Cook County involves another ubiquitous restriction: bans on AR-15–platform rifles and similar semiautomatic rifles with features like detachable magazines and adjustable stocks. Smith & Wesson Brands v. Estados Unidos Mexicanos recognized that AR-15 and AK-47 style semiautomatic rifles are “widely legal and bought by many ordinary consumers,” and observed that “[t]he AR-15 is the most popular rifle in the country.” Cook County bans them.

The district court upheld the ordinance, relying on both pre- and post-Bruen precedent and granting summary judgment to the county. A panel of the U.S. Court of Appeals for the 7th Circuit issued a brief opinion affirming, saying prior circuit precedent had already rejected similar challenges at the preliminary-injunction stage and faulting the plaintiffs for failing to develop a more robust record.

Cutberto Viramontes asks the court to “address the AR-15 issue” (to borrow Justice Brett Kavanaugh’s phrase from his statement respecting denial in Snope v. Brown where he said “this Court should and presumably will address [it] soon”). He argues the 7th Circuit reached the “remarkable conclusion” that a flat ban on AR-15s does not even implicate the Second Amendment because rifles “predominantly useful in military service” are not protected “Arms.” Viramontes says semiautomatic rifles that have been lawfully owned for over a century cannot be retroactively declared unprotected merely because some jurisdictions label them “assault weapons.” His reply leans heavily on Smith & Wesson, arguing there is now a mature split over how Bruen applies to arms bans and how to measure “in common use.”

Cook County’s brief in opposition asserts problems in bringing the case, claiming “petitioners have forfeited their constitutional arguments by failing to compile an adequate supporting factual record in the proceedings below,” accusing them of procedural shortcuts like refusing discovery and relying on untested assertions.

Fourth Amendment searches

Patrick Wayman Scullark, Jr., had more pressing problems than the fashion perils of being seen wearing a fanny pack in 2022: police followed him to a house to investigate a domestic-abuse report. When an officer told him he was under arrest, Scullark handed his fanny pack to a nearby woman, who began walking away until ordered to stop. After Scullark was handcuffed and placed in a squad car, another officer opened the pack and found methamphetamine. Scullark pleaded guilty but reserved his right to challenge denial of his motion to suppress the evidence found in his fanny pack.

At the suppression hearing, the officer conceded that once Scullark was cuffed, he “couldn’t have gotten [the fanny pack] if he wanted to.” Nonetheless, the Iowa Supreme Court upheld the search as a valid incident to arrest because the fanny pack had been “attached to his person at the time of the arrest,” making it an “extension of his person, much like his pockets.” Justice Matthew McDermott dissented, arguing that once the pack was off Scullark’s body and out of reach, neither officer safety nor evidence preservation could justify the search.

In Scullark v. Iowa, Scullark alleges there is a “deep” and “intractable split” split over whether officers may automatically search containers carried at the time of arrest, even after they are later secured, or whether case-specific safety or spoliation concerns are required. The state responds that even under the more defendant-favorable approach, Scullark’s search would be upheld given the officers were outnumbered and the possibility that his companions could destroy evidence or threaten safety.

Prisoners’ rights to DNA evidence

Reed v. Goertz is back for a sequel. Two terms ago, the Supreme Court reversed the decision of the U.S. Court of Appeals for the 5th Circuit holding that Rodney Reed’s § 1983 challenge to Texas’ post-conviction DNA-testing statute was time-barred, rejecting Texas’ effort to treat the suit as a belated (and therefore infirm) attack on his long-final murder conviction for the 1996 strangling of Stacey Stites.

Reed, who has spent over 25 years on death row and amassed, according to Justice Sotomayor, a “substantial body of evidence, that if true” casts a “pall of uncertainty over [his] conviction,” now seeks review of the 5th Circuit’s decision on the merits. Specifically, he claims that Texas’ DNA-testing scheme, as construed by the Texas Court of Criminal Appeals, is so arbitrary that it violates due process.

Reed focuses on a “non-contamination” gloss that the CCA has read into Article 64 of the Texas Code of Criminal Procedure’s “chain of custody” requirement. Because the belt used to strangle Stites were handled years ago by ungloved lawyers, staff, and possibly jurors, the CCA held the belt to be categorically ineligible for testing. But Reed hopes to show the DNA of Stites’ fiancé on the belt to support his claim that someone else killed her.

Reed argues that Texas can’t “have it both ways”: the same department of public safety that routinely extracts usable DNA from messy, mixed, and contaminated samples to prosecute defendants cannot deem contaminated evidence scientifically worthless only when a condemned prisoner seeks testing to prove his innocence. He also attacks other aspects of the CCA’s construction – such as limits on testing to evidence that would exonerate (rather than merely implicate someone else) and strict timeliness rules – as rendering Texas’s statutory remedy “fundamentally inadequate to vindicate” due process interests.

Texas responds that the court’s precedents leave very little room for constitutional challenges to DNA-testing regimes and that its system, with its chain-of-custody, materiality, and timeliness requirements, closely resembles the scheme the court upheld in District Attorney’s Office v. Osborne.

Qualified immunity

Zorn v. Linton twists its way onto the relist watchlist, as Vermont State Police Sergeant Jacob Zorn seeks to revive qualified immunity after the U.S. Court of Appeals for the 2nd Circuit reversed summary judgment and allowed protester Shela Linton’s excessive-force claim to go to trial.

The case arises from a 2015 sit-in at the Vermont Statehouse protesting the governor’s failure to support universal healthcare. Protesters linked arms and refused to leave. Linton alleges that Zorn grabbed her, applied a “rear wrist-lock” that forced her arm behind her back, and inflicted gratuitous pain despite her passive resistance, causing lasting wrist and shoulder injury. The 2nd Circuit panel held that then-Judge Sonia Sotomayor’s opinion in Amnesty America v. Town of West Hartford clearly established that gratuitous pain inflicted on passive protesters violates the Fourth Amendment. That case involved officers choking protesters, “pinin[ng]” their heads on the ground, and dragging them on the floor. The panel concluded that genuine disputes of material fact about Linton’s resistance and the necessity of force foreclosed summary judgment. Judge José Cabranes dissented in relevant part, warning of “growing daylight between our Circuit’s holdings on qualified immunity and the teachings of the Supreme Court.”

Zorn’s petition argues that the 2nd Circuit defined “clearly established” law at too high a level of generality, contrary to cases like Kisela v. Hughes, which require close factual similarity to give officers fair notice. The brief in opposition denies any circuit split and defends the decision as a routine application of settled precedent to a specific factual record. We’ll soon see whether the court treats this as another opportunity to further explore its qualified-immunity doctrine – or if it is just another fact-bound dispute destined to fall off the relist roll.

Habeas review

Fields v. Plappert is a capital habeas case now entering its fourth decade. The judges of the en banc U.S. Court of Appeals for the 6th Circuit split 10 to 5 about whether the principle that a verdict “must be based upon the evidence developed at the trial” in Turner v. Louisiana qualifies as “clearly established Federal law” for the Antiterrorism and Effective Death Penalty Act of 1996 when jurors conduct their own experiments.

At Fields’ trial, jurors took the knife that the prosecution claimed he used to break into victim Bess Horton’s home and used it during deliberations to unscrew cabinet hinges in the jury room. They were testing a central factual question: whether Fields – intoxicated on horse tranquilizers and alcohol – could have removed 17 painted-over screws from a storm window in the time the prosecution alleged.

The Kentucky Supreme Court brushed this aside, reasoning that the jury merely manipulated an admitted exhibit (the knife). A 6th Circuit panel granted habeas relief, but the en banc court reversed in a sharply divided decision. The majority held that although everyone agrees jurors must rely on trial evidence, that proposition is too “general” and “abstract” to provide “clearly established” law under AEDPA, especially because the “the Supreme Court has issued no guidance on jury experiments like the one here.”

The Supreme Court denied certiorari in June 2024. Over a year later, Fields filed a motion for leave to file an untimely petition for rehearing, arguing that the court’s intervening summary reversal in Andrew v. White made clear that broad, general rules can still be “clearly established” law even when the facts are not cookie-cutter identical. The state notes that Andrew came down over six months before Fields moved for rehearing and says the delay is unjustified. The court has rescheduled Fields’ rehearing petition request six times before relisting it, suggesting at least one justice is taking a hard look at whether Turner-style principles can be “clearly established” when jurors conduct off-the-books experiments.

New Relists

Fields v. Plappert, 23-6912

Issue: Whether the requirement that a verdict be based only on the evidence presented in the courtroom at trial satisfies 28 U.S.C. § 2254(d)(1)’s “clearly established” requirement, and if so, whether a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violates this rule.

(Relisted after the Dec. 5 conference.)

Reed v. Goertz, 24-1268

Issue: Whether Article 64 of the Texas Code of Criminal Procedure, as authoritatively construed by the Texas Court of Criminal Appeals, violates due process by arbitrarily denying prisoners access to postconviction DNA testing, rendering illusory prisoners’ state-created right to prove their innocence through newly discovered evidence.

(Relisted after the Dec. 5 conference.)

Gator’s Custom Guns, Inc. v. Washington, 25-153

**Issue: **Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.

(Relisted after the Dec. 5 conference.)

Duncan v. Bonta, 25-198

Issue: (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.

(Relisted after the Dec. 5 conference.)

Viramontes v. Cook County, 25-238

Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.

(Relisted after the Dec. 5 conference.)

Zorn v. Linton, 25-297

Issue: Whether the Second Circuit’s qualified immunity analysis conflicts with this court’s repeated instruction that courts must define rights with specificity and look for close factual analogues in determining whether a Fourth Amendment right is clearly established.

(Relisted after the Dec. 5 conference.)

Scullark v. Iowa, 25-331

**Issue: **Whether the Fourth Amendment categorically permits warrantless searches of bags carried by arrestees at the time of arrest but inaccessible to them at the time of search.

(Relisted after the Dec. 5 conference.)

Adams v. United States, 25-5467

**Issue: **Whether 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms or ammunition, violates the Second Amendment.

(Relisted after the Dec. 5 conference.)

Thomas v. United States, 25-5477

**Issue: **Whether 18 U.S.C. § 922(g)(1), the federal statute that prohibits anyone who has been convicted of “a crime punishable by imprisonment for a term exceeding one year” from possessing a firearm, violates the Second Amendment either facially or as applied to individuals with prior convictions for non-violent offenses.

(Relisted after the Dec. 5 conference.)

Olivas v. United States, 25-5481

Issues: (1) How should courts decide whether an individual prosecution or conviction under 18 U.S.C. § 922(g)(1) is consistent with the Second Amendment to the Constitution; (2) whether Congress has the constitutional authority to enact a statute banning a former felon from possessing “in or affecting commerce” a firearm if the firearm was made in another state.

(Relisted after the Dec. 5 conference.)

Haynes v. United States, 25-5482

**Issue: **Whether, as the Eighth Circuit held, 18 U.S.C. § 922(g)(1) (which prohibits any felon from possessing firearms) is invariably constitutional both facially and as applied to any defendant, no matter the case-specific circumstances.

(Relisted after the Dec. 5 conference.)

Truex v. United States, 25-5485

**Issues: **(1) Whether § 922(g)(1) violates the Second Amendment facially; (2) whether, to determine the constitutionality of § 922(g)(1) as applied to a defendant, must courts examine whether there is a historical tradition permanently disarming a person with analogous convictions instead of relying on a historical tradition disarming someone serving a sentence.

(Relisted after the Dec. 5 conference.)

Scott v. United States, 25-5503

**Issue: **Whether 18 U.S.C. § 922(g)(1)’s lifetime ban on firearm possession for all individuals previously convicted of a felony violates the Second Amendment, either facially or as applied to the Petitioner.

(Relisted after the Dec. 5 conference.)

Barry v. United States, 25-5510

**Issues: **(1) Whether courts should analyze as-applied Second Amendment challenges to 18 U.S.C. § 922(g)(1) by examining whether historical tradition supports permanently disarming someone for the predicate offense(s) underlying the defendant’s conviction; (2) whether § 922(g)(1), on its face, unconstitutionally abridges the Second Amendment right to keep and bear arms.

(Relisted after the Dec. 5 conference.)

Betancourt v. United States, 25-5514

**Issue: **Whether 18 U.S.C. § 922(g)(1) – the federal statute that prohibits a person from possessing a firearm if he has been convicted of “a crime punishable by imprisonment for a term exceeding one year” – complies with the Second Amendment.

(Relisted after the Dec. 5 conference.)

Garcia v. United States, 25-5516

**Issues: **(1) Whether 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms or ammunition, violates the Second Amendment – either on its face or as applied to the petitioner; (2) whether 18 U.S.C. § 922(g)(1), which purports to make a felon’s intrastate possession of firearms and ammunition a federal crime solely because those items crossed state lines at some point, exceeds Congress’s commerce clause authority.

(Relisted after the Dec. 5 conference.)

Moore v. United States, 25-5522

**Issue: **Whether 18 U.S.C. §922(g)(1) comports with the Second Amendment as applied to a defendant whose most serious prior felony conviction is drug trafficking.

(Relisted after the Dec. 5 conference.)

Carbajal v. United States, 25-5535

**Issues: **(1) Whether § 922(g)(1) violates the Second Amendment facially; (2) whether § 922(g)(1) violates the Second Amendment as applied to individuals with convictions for offenses that did not involve the misuse of firearms or establish a credible threat of such misuse.

(Relisted after the Dec. 5 conference.)

Nelson v. United States, 25-5550

**Issue: **Whether 18 U.S.C. § 922(g)(1) is unconstitutional on its face or as applied to Petitioner because, consistent with the Second Amendment, the federal government may not permanently disarm citizens with only remote-in-time, nonviolent prior felony convictions.

(Relisted after the Dec. 5 conference.)

Branson v. United States, 25-5565

**Issues: **(1) Whether 18 U.S.C. § 922(g)(1) comports with the Second Amendment; (2) whether Congress may criminalize intrastate firearm possession based solely on the firearm crossing state lines at some point prior to the defendant’s possession.

(Relisted after the Dec. 5 conference.)

Alvarez v. United States, 25-5566

**Issue: **Whether 18 U.S.C. §922(g)(1) comports with the Second Amendment as applied to a defendant with prior felony convictions for drug possession, publishing unauthorized intimate photos of another, and unauthorized use of a motor vehicle.

(Relisted after the Dec. 5 conference.)

Marrow v. United States, 25-5976

(Relisted after the Dec. 5 conference.)

Owens v. United States, 25-5952

(Relisted after the Dec. 5 conference.)

Parker v. United States, 25-5999

Issues: (1) Whether convicted felons have a Second Amendment right, or do only law-abiding persons enjoy this right; (2) whether 18 U.S.C. §§ 922(g)(1) and 924(a)(2) withstands Second Amendment scrutiny in all of its applications, or is it unconstitutional as applied to some felons.

(Relisted after the Dec. 5 conference.)

Miller v. United States, 25-6054

**Issue: **Whether, because the Circuit Courts of Appeals and District Courts are split, a writ of certiorari should be granted to settle the Constitutionality of 18 U.S.C. §922(g)(l) .

(Relisted after the Dec. 5 conference.)

Isaacson v. United States, 25-6105

**Issue: **Whether 18 U.S.C. § 922(g)(1) is unconstitutional under the Second Amendment, both facially and as applied to Ms. Isaacson, in light of New York State Rifle & Pistol Association, Inc. v. Bruen, 597 US. 1 (2022) and United States v. Rahimi, 602 U.S. 680 (2024) .

(Relisted after the Dec. 5 conference.)

Returning Relists

Smith v. Scott, 24-1099

Issues: (1) Whether, viewing the facts from the officers’ perspective at the time, the officers acted reasonably under the Fourth Amendment by using bodyweight pressure to restrain a potentially armed and actively resisting individual only until handcuffing could be accomplished; and (2) whether the panel erred in denying qualified immunity where no case clearly established that pre-handcuffing bodyweight pressure violates the Fourth Amendment.

(Relisted after the Sept. 29, Oct. 10, Oct. 17, Nov. 7, Nov. 14, Nov. 21 and Dec. 5 conferences.)

Pitchford v. Cain, 24-7351

Issues: (1) Whether clearly established federal law requires reversal of a state appellate court’s denial of relief from a capital prosecutor’s discriminatory exercise of four peremptory strikes against Black venire members wherein the trial court, for each of the four strikes, failed to determine “the plausibility of the reason in light of all evidence with a bearing on it” under Miller-El v. Dretke; (2) whether Mississippi Supreme Court precedent, which deems waived on direct review arguments of pretext not stated in the trial record, defies this court’s clearly established federal law under Batson v. Kentucky; and (3) whether a finding of waiver on a trial record possessing Batson objections, defense counsel’s efforts to argue the objection, and the trial court’s express assurance the issues were preserved constitutes an unreasonable determination of facts.

(Relisted after the Sept. 29, Oct. 10, Oct. 17, Nov. 7, Nov. 14, Nov. 21 and Dec. 5 conferences.)

Klein v. Martin, 25-51

Issue: Whether the U.S. Court of Appeals for the 4th Circuit violated the Antiterrorism and Effective Death Penalty Act‘s deferential standard by overturning a state-court decision based on the supposed lack of “nuance” and “exhaustiveness” in the court’s written opinion, rather than the reasonableness of its legal conclusion.

(Relisted after the Sept. 29, Oct. 10, Oct. 17, Nov. 7, Nov. 14, Nov. 21 and Dec. 5 conferences.)

Indiana, ex rel. Howell v. Circuit Court of Indiana, Wells County, 25-5557

**Issues: **(1)Whether petitioner made a sufficient factual showing to establish “good cause” for discovering actual judicial bias by showing that the trial judge had made specific allegations as to how his case was affected; (2) whether the Indiana Supreme Court erred in holding that every Indiana Post-Conviction Remedies Rule 1, Section 12 motion constitutes a prohibited “second or successive” petitione as a matter of law; (3) whether a prosecutor’s failure to correct testimony of a witness that he knew to be false was used to obtain a conviction, even though other testimony regarding the witness’s credibility was introduced.

(Relisted after the Nov. 7, Nov. 14, Nov. 21 and Dec. 5 conferences.)

Allen v. Guzman, 25-5879

**Issues: **Whether petitioner has a state-created liberty in the appointment of counsel under the newly enacted California Racial Justice Act Penal Gode Section 1473(e), which provides that “the court shall appoint counsel, if the petitioner cannot afford counsel.”

(Relisted after the Nov. 14, Nov. 21 and Dec. 5 conferences.)

Vincent v. Bondi, 24-1155

Issue: Whether the Second Amendment allows the federal government to permanently disarm Petitioner, who has one seventeen-year-old nonviolent felony conviction for trying to pass a bad check.