Supreme Court Cases: 2016-2017 Term
By Leslie Adamczyk, J.D.
During its 2016-2017 session, the U.S. Supreme Court decided cases of interest to the law enforcement community. These include two involving use of deadly force—one addressing qualified immunity and the other evaluating the Ninth Circuit’s use of the “provocation rule” to impose liability for a use of force that follows a Fourth Amendment violation separate from the use of force. A First Amendment case looks at the right of sex offenders to access social media sites. Another examines the materiality of undisclosed evidence that should have been given to the defense under Brady.
This article provides a brief synopsis of each case. Law enforcement agencies should be aware that their own state constitutions and laws may provide greater protections than those available under the U.S. constitutional standards.
County of Los Angeles v. Mendez,
581 U.S. ____ (2017)
Mendez stemmed from a civil rights lawsuit following the police shooting of two individuals during a warrantless entry into a home. Two deputy sheriffs—based on an incorrect tip that a wanted felon could be found there—entered a shack. The deputies entered lacking a search warrant and failing to knock or announce their presence or identity.
Angel Mendez and his pregnant girlfriend, Jennifer Garcia, were sleeping inside. When Mendez heard someone entering, he picked up a BB gun. The deputies saw what they reasonably viewed as a weapon pointed in their direction and immediately opened fire, severely injuring Garcia and Mendez, whose lower leg was amputated as a result.
Special Agent Adamczyk serves in the FBI’s New York, New York, office.
The court considered two issues. First, it looked at whether a law enforcement officer can be found liable under the Ninth Circuit’s provocation rule where it is determined the officer’s use of force was reasonable and not excessive. Second, it examined whether an incident leading to a reasonable use of force negates a prior Fourth Amendment unlawful entry violation.
The Ninth Circuit’s provocation rule is as follows: “[A]n officer’s otherwise reasonable use of force becomes unreasonable if (1) the officer intentionally or recklessly provokes a violent confrontation” and (2) “the provocation is an independent Fourth Amendment violation.”1
The Court found the provocation rule incompatible with excessive force claims.2 In its opinion, the Court used the framework set out in Graham v. Connor to analyze excessive force claims.3 In Graham, the court found, “The operative question in excessive force cases is ‘whether the totality of the circumstances justifies a particular search or seizure,’ paying ‘careful attention to the facts and circumstances of each particular case.’”4
For the second question, the Court found that when law enforcement uses force that is judged “reasonable” based on “circumstances relevant to that determination,” then “a different Fourth Amendment violation cannot transform [that] reasonable use of force into an unreasonable seizure.”5
Of importance is the conclusion of the Court, which states that “it is important to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts.”6 The Court’s limited conclusion was that “once a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference to some separate constitutional violation.”7 It did not rule that the Mendezes, now married, cannot recover on the facts of their case. The Court only held that the plaintiffs cannot recover under the theory of the provocation rule.
White v. Pauly,
580 U.S. ____ (2017)
In another excessive force case, the Court determined whether a law enforcement officer who joins an ongoing confrontation and fires upon armed individuals without shouting a warning commits a violation of the Fourth Amendment’s right to be free from excessive use of force. The Court held that the officer did not violate clearly established law.
In White, police officers went to Daniel Pauly’s house after receiving a call that he had been involved in a road rage incident. According to the plaintiffs, the officers yelled that they were coming into the house; however, they failed to identify themselves as police officers.
Officer White arrived at the scene after his fellow officers. He hid behind a stone wall after hearing someone in the house shout, “We have guns.” White witnessed several shots fired by one of several individuals from the back of the home. Without giving any kind of warning, White shot and killed Samuel Pauly when he pointed a gun out of the front window of the house. Prior to White arriving, his fellow officers had announced their presence at the Pauly residence: “Open the door, State Police, open the door.”8 Pauly’s estate filed a lawsuit against the officers, arguing that they had violated Pauly’s constitutional right to be free of excessive force. The officers alleged that they were entitled to qualified immunity.9
In its opinion, the Court held that Officer White did not violate clearly established law. An officer’s conduct is protected by qualified immunity when it “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”10 The Court explained that a reasonable officer who arrives late to an ongoing police action is not prohibited from assuming that proper procedures, such as officer identification, were followed.11 An officer should not be required to “second-guess” any steps presumably already taken by his fellow officers.12
In its opinion, the Court noted that in recent years, it has issued many opinions reversing federal courts’ denial of qualified immunity in cases regarding excessive force. The Court emphasized the concept of clearly established law pertaining to qualified immunity cases; it “should not be defined ‘at a high level of generality,’” but instead must be similar to the facts of a particular case.13 In other words, the lower court was too generalized in its analysis of what must be a factually specific examination of White’s actions and whether he should be held liable.
It is important to note that the Court’s ruling, similar to its ruling in Mendez, left open the possibility for Pauly’s estate to be successful on another issue and stated that White should have assessed the scene when he arrived and attempted to correct the other officers’ handling of the situation before using deadly force against Pauly.
Manuel v. City of Joliet,
580 U.S. ____ (2017)
The question in the Manuel case was whether an individual’s Fourth Amendment right to be free from unreasonable search and seizure continues through the legal process of a criminal case. In a divided opinion, the Court concluded that an individual may challenge pretrial detention on the ground that the detention violated the Fourth Amendment.15 Essentially, an individual’s Fourth Amendment right to be free from unreasonable search and seizure continues through the legal process of a criminal case. The Court determined that Manuel was arrested without probable cause, and therefore his Fourth Amendment claim was proper.16
Turner v. United States,
582 U.S. ____ (2017)
The issue presented in this case was whether Turner’s rights were violated by the government’s failure to provide evidence that may have supported his innocence and therefore whether his conviction, along his codefendants’ convictions, should be set aside under Brady v. Maryland. Evidence is “material” when there is a reasonable probability that had the evidence been disclosed, the outcome of the proceeding would have been different.17 A divided Court held that the withheld evidence was not material under Brady v. Maryland.
Turner and five other individuals were convicted of the 1984 kidnapping, armed robbery, and murder of Catherine Fuller. Approximately 25 years later, Turner and his codefendants sought to have their convictions overturned based on the claim that they did not receive a fair trial due to the government’s failure to provide exculpatory evidence, in violation of the Brady Rule.18 This evidence included information regarding another possible suspect, James McMillan. Turner argued that if the government had turned over this information, the defense could have provided an alternative theory with McMillan being the perpetrator, thereby creating reasonable doubt that Turner and the codefendants were guilty.19
The government did not dispute that the withheld evidence was favorable to the defendants, which only left the question as to whether the evidence was “material” to their defense. The Court found that the withheld evidence in question was not material under the Brady standard, and therefore the convictions should not be overturned.
Evidence is material when there is reasonable probability that if the evidence had been disclosed, there would have been a different outcome in the proceeding. The Court stated that the defendant held the burden of showing that the suppression of the evidence in question prejudiced the trial. The Court concluded that the withheld evidence was too little, weak, or distant from the main evidentiary points to meet Brady’s standards.20
Packingham v. North Carolina,
582 U.S. _____ (2017)
The issue in Packingham was whether a North Carolina law violated the First Amendment free speech clause by prohibiting a registered sex offender from accessing social media websites where minors are known to have accounts, regardless of whether there was any interaction with minors. Packingham was convicted of “taking indecent liberties with a child” after having sex with a 13 year old when he was 21. In 2010, after making a post on Facebook, he was arrested in violation of the North Carolina law that makes it a felony for a convicted sex offender to use social networking websites that allow minors to create profiles. This is one of the first cases the Court has taken to consider the relationship between the First Amendment and postconviction limits.21
The Court outlined the “fundamental principle of the First Amendment,” that everyone should have “access to places where they can speak and listen, and then, after reflection, speak and listen once more.”22 The Court noted that there is no question that the Internet is one of the most important places to exchange views. Seven in 10 American adults use at least one Internet social networking service.23 Social media sites, such as Facebook and Twitter, offer relatively unlimited, low-cost capacity for communications of all kinds.24
The Court found that to survive intermediate scrutiny, a law must be “narrowly tailored to serve a significant governmental interest” and must not “burden substantially more speech than is necessary to further the government’s legitimate interests.”25 North Carolina’s response regarding the statute is that the law must be broad to serve its preventative purpose of keeping convicted sex offenders away from vulnerable victims.
The Court made two assumptions about the North Carolina law in considering this case.
- The scope of the statute did not need to be considered; it was enough to assume the law applies to commonplace social networking sites.
- The First Amendment permits a state to enact specific, narrowly tailored laws that prohibit a sex offender from certain conduct, such as contacting a minor or using a website to gain information or access to a minor.26
After considering these, the Court concluded that to deny access to all social media prevents a user from “engaging in the legitimate exercise of First Amendment rights” and that North Carolina did not meet its burden to show that the sweeping law is necessary or legitimate to serve the purpose of protecting minors.27
- Specific criminal acts are not protected speech, even if speech is the means for their commission.
- The statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind.
Ziglar v. Abbasi,
582 U.S. ____ (2017)
Immediately following September 11, 2001, the federal government ordered hundreds of illegal aliens into custody and held, pending a determination of whether they had terrorism connections. The FBI then determined if the detainee was an alien “of interest” or not “of interest.” Those deemed not “of interest” were treated according to normal procedures, as if they had entered the United States illegally. Those deemed “of interest” were detained and subject to a “hold-until-cleared policy.”28 The respondents were held at the Metropolitan Detention Center (MDC) in Brooklyn, New York, without bail and under harsh conditions. They eventually were removed from the United States after it was determined that they had no connection to terrorist activity.29
The respondents filed a class action against two groups of federal officials. The first included former attorney general John Ashcroft, former FBI director Robert Mueller, and former Immigration and Naturalization Service commissioner James Ziglar. The second group comprised MDC Warden Dennis Hasty and Assistant Warden James Sherman.30
The respondents sought damages under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, alleging that they were detained in harsh pretrial conditions for punishment, in violation of the Fifth Amendment; treated this way because of their race, religion, or national origin, also in violation of the Fifth Amendment; and subjected to punitive strip searches, as well as abuse, from the guards.31
The District Court dismissed the claims against the first group, but allowed the claims against the wardens to go forward. The Second Circuit affirmed in most respects against the wardens, but reversed and reinstated the claims against the first group.32
The Court held that Bivens v. Six Unknown Named Agents established an implied right of action to sue a federal officer for money damages when the government official violated constitutional rights. In the current case, the Court declined to extend the Bivens precedent because Congress had not enacted a statute that allowed for this sort of remedy.33 The Court further determined that the government officials in the case were entitled to qualified immunity because reasonable officials in their positions would not have known that their conduct was unlawful under clearly established law regarding how a conspiracy applies to a governmental entity.34
District of Columbia v. Wesby
Under Washington, D.C., law, probable cause to arrest for unlawful entry exists where a reasonable officer decides from information known at the time that the person being arrested knew or should have known that they entered the house against the will of the owner.35
The court will address 1) whether officers have probable cause to arrest for unlawful entry under D.C. law, even when the entry by defendants occurred under good faith, and 2) if the officers are entitled to qualified immunity based on the fact that the D.C. law is not clearly established, even if there was no probable cause to arrest the party guests.
The Metropolitan Police Department responded to a report of “illegal activity” at a house party. When officers arrived at the scene, they heard loud music coming from the residence. The officers entered and saw many party guests, including Theodore Wesby, drinking and watching “scantily clad women with money tucked into their garter belts.”36 The guests stated that a woman named “Peaches” was hosting the party and that she was leasing the house from the homeowner.
One of the officers called the owner, who claimed that the lease had not been executed and that he did not give permission for the party. The officers then arrested all of the party guests. Subsequently, some of the party guests sued the officers for false arrest. The district court ruled in favor of the party guests, and the U.S. Court of Appeals for the District of Columbia affirmed and held that the officers did not have probable cause to enter and that they were not entitled to qualified immunity because it was unreasonable for the officers to believe they were not violating the party guests’ Fourth Amendment rights against false arrest.37
Carpenter v. United States
This case centers on the arrest of four men in April 2011 for their involvement in a string of armed robberies. One of them confessed to the robberies and provided the FBI with his cell phone number and the numbers of the other participants. The FBI used the provided information to apply for three orders to obtain “transactional records” for all four of the phone numbers under the Stored Communications Act, 18 U.S.C. 2703(d).38 Based on the cell-site evidence received, the government charged Carpenter with aiding and abetting robbery that affected interstate commerce, in violation of the Hobbs Act, 18 U.S.C. 1951. Carpenter moved to suppress the cell-site evidence, claiming the FBI needed a warrant to obtain the records. Carpenter’s motion to suppress was denied by the district court, and the Sixth Circuit Court affirmed.
The Supreme Court will determine whether the warrantless search and seizure of historical cell phone records revealing the location and movements of a cell phone user is permitted by the Fourth Amendment.
Janus v. AFSCME
This case involves a Supreme Court case decided in 1977, Abood v. Detroit Board of Education, in which the Court upheld a Michigan law that allowed a public employer to require employees who did not join the union to pay fees regardless because the nonunion employees still benefited from the union’s collective bargaining agreement with the employer.39 There is a similar law in Illinois, and the governor of Illinois brought a lawsuit challenging the law on the grounds that the statute is a violation of the First Amendment by making employees who disapprove of the union to contribute money.
The Supreme Court will determine whether Abood should be overruled so that employees who do not join a union are not required to pay union fees.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisers. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
Special Agent Adamczyk can be reached at email@example.com.
1 Billington v. Smith, 292 F. 3d 1177, 1189.
2 County of Los Angeles v. Mendez, 137 S. Ct. 1539.
3 Graham v. Connor, 109 S. Ct. 1865.
4 Id. at 1546.
6 Id. at 1548.
7 Id. at 1549.
8 White v. Pauly, 137 S. Ct. 548 (2017).
9 Id. at 553.
10 Id. at 551.
11 Id. at 552.
14 Manuel v. City of Joliet, 137 S. Ct. 911 (2017).
15 Id. at 913.
16 Id. at 928.
17 Turner v. United States, 137 S. Ct. 1885.
18 Id. at 1891.
19 Id. at 1893.
20 Id. at 1894.
21 Packingham v. United States, 137 S. Ct. 1730.
22 Id. at 1732.
23 Id. at 1735.
25 Id. at 1736.
26 Id. at 1732.
27 Id. and Id. at 1735.
28 Zigler v. Abbasi, 137 S. Ct. 1843.
29 Id. at 1853.
30 Id. at 1847.
33 Id. at 1848.
34 Id. at 1850.
35 Id. at 27.
36 Wesby v. District of Columbia, 765 F.3d 96 (2016).
37 Id. at 26.
38 Title 18 U.S.C. 2703(d) provides that the government may require the disclosure of certain telecommunications records when “specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”
39 Janus v. AFSMCE, 851 F.3d 756 (2017).