During the 2018–2019 term, the U.S. Supreme Court decided a number of cases of interest to the law enforcement community, including an examination of the separate sovereigns doctrine, the blood draw of an unconscious DUI suspect, limitations on a suspect’s First Amendment retaliatory arrest civil litigation claim, and application of the Eighth Amendment’s Excessive Fines Clause to states in a civil forfeiture case resulting from a drug trafficking arrest.

Gamble pled guilty to the state charge of possession of a firearm by a convicted felon, and subsequently, the United States charged Gamble with violating 18 U.S.C. § 922(g)(1), which prohibits anyone convicted of a crime punishable by imprisonment exceeding 1 year to ship, transport, or possess, in or affecting interstate commerce, a firearm or ammunition.¹ Gamble argued that his prosecution by both the State of Alabama and the federal government violated the Double Jeopardy Clause of the Fifth Amendment and argued that the separate sovereigns doctrine, the doctrine that a state and the federal government may prosecute an individual for the same criminal conduct, should be eliminated.

The Court declined to abolish the dual sovereignty doctrine. In reaching its decision, by examining the “same offense” language of the clause, the Court reasoned that the language of the Double Jeopardy Clause itself provided for prosecutions by separate sovereigns.² The clause itself does not prohibit prosecutions for the same conduct or actions but the same offenses.³ An offense was generally understood at the time of the drafting of the amendment to be a transgression, violation, or breaking of a law.⁴ The laws, in turn, were defined by a sovereign. As a result, where there were two sovereigns, two laws, and, thus, there were two offenses.⁵

The Court reviewed historical cases previously decided by the Court and historical common law cases prior to the drafting of the amendment, all of which supported the dual sovereignty doctrine. In examining the Court’s own precedent of upholding the dual sovereignty doctrine, the Court declined to abandon those holdings, as Gamble urged.

Nieves v. Bartlett, 139 S.Ct. 1715 (2019)

The Court addressed the issue of whether probable cause will defeat a First Amendment retaliatory arrest claim under 42 U.S.C. § 1983.

Russell Bartlett was arrested by Alaska State Trooper Sergeant Nieves in 2014 at a winter sports festival.⁶ Nieves and his partner were patrolling a campground area and asked an RV owner to move a beer keg inside the RV. Bartlett began yelling to the RV owner not to speak to the officers. Sergeant Nieves approached Bartlett to explain the situation and noticed Bartlett was intoxicated. Bartlett began yelling, and Nieves walked away, rather than escalate the situation.

A short time later, Nieves’ partner was questioning a group of minors, which Bartlett observed. According to Nieves’ partner, Bartlett stepped between the officer and the minor and began yelling. Bartlett took an aggressive stance and stepped toward the officer. The officer pushed Bartlett back, and Nieves then intervened and placed Bartlett under arrest for disorderly conduct and resisting arrest. Bartlett claimed Nieves said, “[B]et you wish you would have talked to me now.”⁷

Prosecutors ultimately dismissed the charges, and Bartlett sued the officers under 42 U.S.C. § 1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech. The Court held that when probable cause exists for the arrest of a subject, a First Amendment retaliatory arrest claim by the defendant is barred.⁸

The Court noted that as a general rule, the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech.⁹ If a government actor takes adverse action against someone for engaging in protected speech and if a nonretaliatory reason for that action is insufficient to cause the adverse consequences about which the person is complaining, the aggrieved party may seek relief by filing a First Amendment claim.¹⁰ To prevail on a First Amendment retaliation claim, the plaintiff must show a causal connection between the official’s improper motive or animus and the plaintiff’s injury.¹¹

The Court fashioned a “but for” test for First Amendment retaliation claims, meaning the adverse action against the plaintiff would not have happened but for the defendant/government official’s retaliatory motive.¹² In some cases, proving the causal link between the government official’s retaliation and the plaintiff’s injury is difficult. Retaliatory prosecution cases are one example where the causal connection is more difficult to prove because the prosecutor, the person taking the retaliatory action, is not the person with the improper motive (i.e., the law enforcement officer). In such cases, in addition to proving the causal connection between the officer’s animus and the resulting injury, the plaintiff also must plead and show the absence of probable cause to prevail.¹³

In Hartman v. Moore, a case involving a retaliatory prosecution claim, the Court noted that requiring plaintiffs to show the absence of probable cause in the retaliatory prosecution context would add little additional burden to the plaintiff because the issue of probable cause would be at the forefront of any criminal prosecution and civil retaliation claim.¹⁴ In First Amendment retaliatory arrest civil claims, similar to Hartman and retaliatory prosecution claims, the Court held that, generally, the plaintiff must establish the absence of probable cause in the underlying arrest for the civil case to proceed.

The Court left open a door to liability, even where probable cause exists for an arrest but officers may exercise their discretionary powers in determining when to arrest an individual. In these cases, if the plaintiff is able to present objective evidence that he or she was arrested when other similarly situated individuals who were not engaged in the same type of protected speech were not, then a cause of action may arise.¹⁵ In these cases, if the plaintiff is able to present objective evidence that he or she was arrested when other similarly situated individuals who were not engaged in the same type of protected speech were not, then a cause of action may arise.¹⁶

Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019)

In this case, the Court examined the issue of the blood draw of an unconscious DUI suspect authorized by state statute and whether it constituted an exception to the Fourth Amendment warrant requirement.

Petitioner Gerald Mitchell was arrested by the Sheboygan Police Department for operating a motor vehicle while under the influence of alcohol. The police received a call that Mitchell had been drinking heavily and had driven off in a van. Police located Mitchell a short time later outside of his vehicle. He was stumbling and slurring his words and needed the officers’ help to stand.

Field sobriety exercises were not attempted due to his condition. Mitchell was given a preliminary breath test that showed that his blood alcohol concentration was three times the legal limit in Wisconsin. He was arrested for DUI and transported to the police station for a breath test, which was standard practice.¹⁷ Mitchell’s condition worsened on the way to the station to the point that a breath test was not feasible, and he was transported to the hospital for a blood draw.

By the time the officer reached the hospital, Mitchell had lost consciousness and was wheeled inside. The officer read aloud the standard language to inform Mitchell that he could refuse Blood Alcohol Concentration testing. When Mitchell did not respond, the officer asked hospital staff to conduct the blood draw. Mitchell remained unconscious throughout the blood draw, and the results showed his BAC to be 0.222 percent, nearly 90 minutes after his arrest. Mitchell was charged with DUI, and his attorney moved to suppress the results of the blood draw, arguing that the warrantless search—the drawing of Mitchell’s blood—was unreasonable. The trial court denied the motion, and Mitchell was convicted of the charges.

The Court granted certiorari on the issue of whether the Wisconsin state statute that authorized a blood draw from an unconscious driver provides an exception to the Fourth Amendment warrant requirement. The Court recounted the history of DUI implied consent laws. In terms of Fourth Amendment challenges, the Court explained that BAC tests are considered searches within the meaning of the Fourth Amendment, and in the case of conscious drivers, the breath test, which is less intrusive than a blood test, was considered a search incident to arrest under the exception to the warrant requirement.¹⁸

Additionally, the Court noted that past cases held that the fleeting nature of BAC evidence alone, in and of itself, did not rise to the level of an exigency,¹⁹ but in cases where there were car accidents or injuries and police had other pressing duties to attend to rather than taking the time to secure a warrant, the exigency exception would permit warrantless BAC testing.²⁰ The Court noted that in this case, after administering the preliminary breath test, the officer attempted to administer the breath test at the station, but was unable to do because of Mitchell’s medical condition.

The Court held that when an officer has probable cause to believe a suspect has committed a drunk driving offense where the driver is unconscious or in a stupor and the officer is deprived of a reasonable opportunity to conduct a standard breath test because the suspect’s condition requires them to be taken to a hospital, a blood draw is almost always permitted under the exigent circumstances doctrine.²¹ The Court left open the possibility of a circumstance where a defendant might be able to show that his or her blood would not have been drawn if the police were not seeking BAC information and the police could not reasonably have believed that seeking a warrant would have interfered with other pressing duties.

Rehaif v. United States, 139 S.Ct. 2191 (2019)

In Rehaif, the Court tackled the issue of whether the government must prove that a defendant knew of his or her unlawful or illegal status in the country in prosecutions under 18 U.S.C. § 922(g), possession of a firearm by an illegal alien.

Hamid Rehaif entered the United States on a nonimmigrant student visa to study at the Florida Institute of Technology in 2013. However, due to poor grades, he was dismissed from the program in 2015. Rehaif was told that his immigration status would be terminated unless he enrolled in another university or left the country. Rehaif remained in the United States and did not enroll at another college.

During this time, he visited a gun range and shot two guns. Subsequently, the Government learned of Rehaif’s visit to the range and shooting, and he was prosecuted under 18 U.S.C. § 922(g) and § 924(a)(2).²² At trial, the jury was instructed that the Government was not required to prove that Rehaif knew that he was unlawfully or illegally in the United States, and Rehaif was convicted and sentenced to 18 months in prison. The Court granted certiorari on the issue of whether the Government must prove that a defendant knew of his or her unlawful status as a person prohibited from possessing a firearm for a prosecution under § 922(g) and § 924(a)(2).

The Court started from the basic premise that whether a statute required the government to prove that the defendant acted knowingly was a matter of congressional intent, citing to Staples v. United States, 511 U.S. 600, 605 (1994).²³ In determining congressional intent, the basic presumption, rooted in common law, is that the required culpable mental state will apply to each of the statutory elements of the crime, thus cementing the distinction between innocent and criminal conduct.²⁴ This presumption generally is referred to as the presumption in favor of scienter, or knowledge of the wrongfulness of one’s act. Scienter is presumed even when Congress does not include a general scienter requirement in a statute.²⁵ The Court noted that the presumption applies with even greater weight when the statutory framework imposes a general scienter requirement.²⁶

Section 924(a)(2) states that “whoever knowingly violates subsection…(g)…of section 922 shall be fined…imprisoned…or both.”²⁷ Subsection (g) of 922 provides that, “It shall be unlawful for any person…who, being an alien, is illegally or unlawfully in the United States…to…possess in or affecting commerce, any firearm or ammunition.”²⁸

The Court examined subsection (g) in terms of the status element, possession element, jurisdictional element, and firearm element.²⁹ It acknowledged that the term knowingly would not apply to the jurisdictional component of the statute, in or affecting commerce. The jurisdictional element was not conduct or behavior that Congress was looking to curtail, but instead the assurance that courts had the authority and power to punish the prohibited conduct. The remaining elements are the prohibited acts or parts of the defendant’s conduct that are criminalized.

The term “knowingly” then is read to apply to the remaining elements of the crime. Applying the “knowingly” requirement to the defendant’s status of being unlawfully or illegally in the United States helps separate innocent versus criminal conduct.³⁰ Possession of a firearm can be a wholly innocent, noncriminal act. But, the defendant’s status of being unlawfully or illegally in the country is the criminal conduct that the statute seeks to punish and criminalize. The Court did not find the Government’s arguments to the contrary persuasive and concluded, “[t]he Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”³¹

Timbs v. Indiana, 139 S.Ct. 682 (2019)

This case presented the issue of whether the Eighth Amendment’s Excessive Fines Clause was applicable to the states through the doctrine of incorporation and the Due Process Clause of the Fourteenth Amendment.

Tyson Timbs was charged with dealing in a controlled substance and conspiracy to commit theft in violation of Indiana state statutes. Timbs pled guilty to the charges and was placed on 1 year of home detention and 5 years of probation, and he was ordered to pay fees and costs associated with his case.

At the end of the criminal case, the State of Indiana moved to seize his Land Rover SUV that Timbs had purchased for $42,000 with proceeds from his father’s life insurance policy. The state sought forfeiture of the vehicle on the grounds that it had been used to transport heroin. The trial court denied the state’s request for the forfeiture on the grounds that it would be grossly disproportionate to the charged offenses. However, the Indiana Supreme Court overturned the lower court, finding that the Eighth Amendment’s prohibition against excessive fines did not apply to the State of Indiana.

The Supreme Court granted certiorari on the issue of whether the Eighth Amendment’s Excessive Fines Clause was applicable to the states under the Fourteenth Amendment’s Due Process Clause. The Court answered the question affirmatively in a unanimous opinion. Justice Ginsburg noted that similar to the Eighth Amendment’s prohibition against excessive bail and cruel and unusual punishment, prohibiting excessive fines ensures against punitive governmental abuse and law enforcement authority.³² The Court explained that, “[t]his safeguard…is fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.”³³

The Bill of Rights, with only a few exceptions, has been made applicable to the states through the doctrine of incorporation and the Due Process Clause of the Fourteenth Amendment.³⁴ A protection conferred under the Bill of Rights is incorporated and made applicable or binding to the states if it is “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation’s history and tradition.”³⁵ If a right is incorporated under the Fourteenth Amendment, it is enforced against a state in the same manner it would be against the federal government.

The Court examined the historical context of the Excessive Fines Clause. The clause’s function was to limit the government’s ability to collect exorbitant fines. In colonial America, a majority of state constitutions adopted some provision limiting the government’s ability to impose or collect excessive fines prior to ratification of the Bill of Rights. When the Fourteenth Amendment was ratified in 1868, 35 of 37 state constitutions had limitations on excessive fines.³⁶

The Excessive Fines Clause also helped to foster and protect other important constitutional rights. Prohibiting excessive fines limits the government’s ability to chill or limit the free speech of political opponents. In addition, placing limitations on the imposition of excessive fines ensures that governments are following the criminal justice goals of deterrence and retribution, as opposed to pursuing a means of generating revenue for states.³⁷

The Court held that the Eighth Amendment’s Excessive Fines Clause is applicable to the states through incorporation of the Due Process Clause of the Fourteenth Amendment, which is supported by both historical and logical reasoning.³⁸ The Court dismissed the State of Indiana’s argument that incorporation does not apply to civil in rem³⁹ forfeitures because those types of forfeitures are not deeply rooted nor fundamental. The Court noted in determining if a right guaranteed in the Bill of Rights is incorporated through the Fourteenth Amendment that the inquiry involves deciding whether that specific right is deeply rooted or fundamental, rather than looking at every application of that right.⁴⁰

Cases of Interest, 2019-2020

Hernandez v. Mesa, case below, 885 F.3d 811 (5th Cir. 2018), cert granted 139 S.Ct. 2636 (2019)

The parents of a 15-year-old Mexican boy who was shot and killed by a U.S. Border Patrol Agent across the U.S.–Mexico border brought an action against the United States, several federal agencies, and the agent for damages, arguing that their son’s constitutional rights under the Fourth and Fifth Amendments were violated and seeking damages under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics.⁴¹

The district court granted the agent/defendant’s motion to dismiss. The U.S. Court of Appeals for the Fifth Circuit held that the case presented a new context for a Bivens action but that special factors counseled against implying a private right of action under Bivens. The Supreme Court granted certiorari on the issue of whether the federal courts can and should recognize a claim for damages under Bivens when plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established Fourth and Fifth Amendment rights, for which there is no alternative legal remedy.

Kansas v. Glover, case below State v. Glover, 422 P.3d 64 (2018), cert granted 139 S.Ct. 1445 (2019)

A deputy ran the license plate of a vehicle and determined that the registered owner of the vehicle was Charles Glover, Jr., and that his license had been revoked. The deputy did not observe the vehicle committing any traffic violations but conducted a stop of the vehicle based upon the assumption that Glover, the registered owner, was driving.

Glover was determined to be the driver during the stop and was arrested as a habitual offender under Kansas law. Glover moved to suppress the evidence obtained from the stop on the grounds that the deputy did not have reasonable suspicion to stop the vehicle. The Court granted certiorari on the issue of whether, for the purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.